Mukesh Kumar vs Jharkhand Public Service ...
2021 Latest Caselaw 1259 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(C) No. 864 of 2021

1.   Mukesh Kumar
2.   Manish Kumar Pathak
3.   Reena Kumari
4.   Anand Prakash Kumar
5.   Gautam Kumar Rai
6.   Ashutosh Nandan                        ...     ...     Petitioners
                                 Versus
1. Jharkhand Public Service Commission, Ranchi
2. The State of Jharkhand through the Principal Secretary, Department
   of Personnel, Administrative Reforms and Rajbhasha, Ranchi
                                          ...      ...     Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners : Mr. Rajiv Kumar, Advocate For the Respondent No. 1 : Mr. Sanjay Piprawall, Advocate For the Respondent No. 2 : Mr. Rajiv Ranjan, AG Mr. Mohan Kumar Dubey, AC to AG

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Order No. 03 Dated: 15.03.2021

The present writ petition is taken up today through Video conferencing.

The present writ petition has been filed for declaring the proviso to rule 4 of the Jharkhand Civil Services Examination Rules, 2021 as contrary to rule 3(v) (wrongly written as rule 3(iv) in the writ petition) of the said Rule. Further prayer has been made for declaring that there is an abrupt departure of cut-off date for counting the upper age limit to appear in the Jharkhand Combined Civil Service Competitive Exam 2021 mentioned in Advertisement No. 01/2021 as the same will lead to ouster of several aspirants including the petitioners from the zone of consideration due to non-holding of the examinations which ought to be held year-wise regularly and the continuity of age relaxation has been broken without any valid reason thereby 5 years galloping jump has damaged their prospects due to non-compliance of the previous rule 3 [now rule 3(v)] of Rules, 2021. The petitioners have also prayed for issuance of direction upon the respondents to adhere to the previously adopted consecutivity of age relaxation as is evident from Advertisement No. 01/2020 so that there may not be any erosion of employment avenues in the state due to

their lackadaisical omission to comply the mandate of their own framed Rules, 1951 and 2021 for those candidates who have adversely been affected from the year 2011 to 2015.

2. The learned counsel for the petitioners submits that Advertisement No. 01/2020 was published in the year 2020 for Combined Civil Service Competitive Examination-2017, 2018 and 2019 in the State of Jharkhand, wherein suitable relaxation was given for computation of upper age limit as 2011 for all the clubbed vacancies following the pattern adopted in earlier six consecutive yearly vacancies. However, due to Covid-19 pandemic, the said vacancy could not be finalized and in the meantime, the Jharkhand Combined Civil Services Examination Rules, 2021 was notified in the month of January, 2021 which was to be effective prospectively. Thereafter, the JPSC advertised Jharkhand Combined Civil Services Competitive Exam, 2021 through JPSC website. As per Clause 4 of the said advertisement, the upper age limit has to be calculated on the basis of the cut-off date as 01.08.2016. It is further submitted that it would be evident on examining the earlier rule vis-à-vis the new rule that the provision of clubbing the vacancies for two (or more) years together which has been made for the first time by reasons of the proviso to rule 4 of the Rules, 2021 is de-hors the rules itself. It is a settled law that if any vacancy arises in a particular year but the same cannot be filled up for some reason or the other, then all the eligible candidates who are left over will have the subsisting right under Article 16 of the Constitution of India to be considered for that post and any attempt to exclude those candidates shall be an aberration of the constitutional mandate. It is also submitted that though the State has the discretionary power to fix the cut-off date for computing the age, yet the said discretion cannot be exercised arbitrarily, rather must be based on rational thinking. It is further submitted that the petitioners do not doubt the intention of the State which may be bonafide, but it has not reached the core of the issue, rather the same is so superficial that it has not even been able to touch the mantle.

3. Mr. Rajiv Ranjan, the learned Advocate General appearing

on behalf of the respondent-State while countering the argument of the learned counsel for the petitioners, submits that Rules, 2021 has been notified by the State Government in order to remove the deficiencies in the earlier rules to hold combined competitive examination every year. It is also submitted that vide resolution no. 7052 dated 17.08.2016, the cut-off dates for the calculation of the upper and lower age limit in the Combined Civil Services Examination, 2016 were fixed as 01.08.2010 and 01.08.2016 respectively. Thus, as per the aforesaid decision regarding cut-off date for age calculation, the candidates belonging to the unreserved category having completed minimum age limit of 20-22 years and maximum age limit of 41 years on the aforesaid cut-off dates were included. It is further submitted that keeping in view various representations, the State Government, vide resolution no. 805 dated 05.02.2021, decided to keep the cut-off date for calculation of upper and lower age limit as 01.08.2016 and 01.03.2021 respectively and accordingly, the JPSC has published Advertisement No. 01/2021. Thus, as per the aforesaid decision regarding cut-off date for age calculation, the candidates belonging to the unreserved category having completed minimum age limit of 21 years and maximum age limit of about 40 years on the aforesaid cut-off dates have been included. Thus, the age relaxation is almost similar in both 6th Combined Civil Services Examination and the current Combined Civil Services Examination, 2021. It is also submitted that had there been no delay in the conducting the examination after 2016, there would have been no age relaxation at all. The one-time age relaxation given vide resolution no. 805 dated 05.02.2021 may not be continued further if the Combined Civil Services Examinations are held yearly as per the Rules, 2021. There may be the affected persons falling on the wrong side of the cut-off date, but that cannot be a ground to further relax the same for such aggrieved persons. Moreover, Clause 5 of the resolution dated 05.02.2021 clearly stipulates that the examination will be conducted every year and the relaxation in cut-off date given by the said resolution will be valid only for the up-coming/current examination.

4. The learned Advocate General puts reliance on the judgment of the Hon'ble Supreme Court rendered in the case of "Hirandra Kumar Vs. High Court of Judicature at Allahabad and Anr." reported in (2019) SCC OnLine SC 254. He further puts reliance on the judgments of the learned Division Bench of this Court rendered in the case of "Krishna Kumar Mishra Vs. State of Jharkhand & Anr." [W.P.(S) No. 6302 of 2017] and "Bhola Nath Rajak & Ors. Vs. State of Jharkhand & Ors." reported in 2014 SCC OnLine Jhar 73.

5. Mr. Sanjay Piprawall, the learned counsel appearing on behalf of the JPSC adopts the argument of the learned Advocate General.

6. Heard the learned counsel for the parties and perused the materials available on record. The petitioners are aggrieved with Clause 4 of the Advertisement No. 01/2021, whereby the cut-off date of upper age limit for the candidates of Jharkhand Combined Civil Service Competitive Examination-2021 has been fixed as 01.08.2016 in consonance with the notification dated 05.02.2021 issued by the Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand. The learned counsel for the petitioners has contended that fixing of the upper age limit is without any basis and thereby the petitioners have been deprived of participating in the Jharkhand Combined Civil Services Examination-2021 as they will be overage.

7. So far the fixing of cut-off date for computation of upper age limit in the Advertisement No. 1/2021 is concerned, I have gone through the judgment of learned Division Bench of this Court rendered in the case of "Krishna Kumar Mishra" (supra) as cited by the learned Advocate General and the learned counsel for the JPSC, wherein after citing several judgments of the Hon'ble Supreme Court dealing with the scope of the writ court to interfere with the decision of the State/authority in fixing the cut-off date for computation of age limit, the law has been summarized as under:

Summary of principles:

XXVIII. On the basis of the aforesaid decisions rendered by the Hon'ble Supreme Court, the law can be summarized as under:

(i) The choice of date as a basis for classification fixed by the legislature or its delegate cannot always be dubbed as arbitrary, even if, no particular reason is forthcoming for the choice unless, it is shown to be capricious or whimsical in the circumstances,

(ii) The cut-off date, to attain the minimum or maximum age, must be specific and determinate on a particular date and it cannot be allowed to depend upon any fluctuating or uncertain date, because it may lead to consequences, anomalies and uncertainties.

(iii) Mere errors of government in fixing of cutoff date, which may be unjust and oppressive are not subject to judicial review, it is only its palpable arbitrary exercise which can be declared void.

(iv) It is the discretion of the rule-making authority or employer, to fix a cut-off date for determining the maximum or minimum age prescribed for a post and it cannot be, per se arbitrary, unless the cut-off date, is as wide off the mark, as to make it wholly unreasonable.

(v) A cut-off date cannot be fixed with any mathematical precision. As soon as a cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some persons fall on the wrong side of the cut-off date and the persons falling on the wrong side cannot challenge the same, unless, it is as capricious or whimsical as to be wholly unreasonable.

(vi) There cannot be any "wholesale relaxation" on the ground that the advertisement is delayed unless, there is an allegation of any mala fides in connection with delay in issuing an advertisement. This wholesale relaxation would make total uncertainty in determining the maximum age of a candidate and it might be unfair for large number of similarly situated candidates who may not apply, thinking that they are age-barred.

(vii) A cut-off date can be provided in terms of the provisions of statute or executive order and if any hardship is caused to some persons or a section of society that may by itself cannot be a ground for holding that the cut-off date so fixed is ultra vires to Article 14 of the constitution.

(viii) The fixing of cut-off dates is within the domain of

the executive authority. There may be various considerations in the mind of the executive authorities due to which a particular cut-off date is fixed. These considerations can be financial, administrative or other considerations. Therefore the court should not normally interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary.

8. I have also perused the judgment of the Hon'ble Supreme court rendered in the case of "Hirandra Kumar" (supra), the relevant paragraphs of which are quoted as under:

23. The legal principles which govern the determination of a cut-off date are well settled. The power to fix a cut-off date or age limit is incidental to the regulatory control which an authority exercises over the selection process. A certain degree of arbitrariness may appear on the face of any cut-off or age limit which is prescribed, since a candidate on the wrong side of the line may stand excluded as a consequence. That, however, is no reason to hold that the cut-off which is prescribed, is arbitrary. In order to declare that a cut-off is arbitrary and ultra vires, it must be of such a nature as to lead to the conclusion that it has been fixed without any rational basis whatsoever or is manifestly unreasonable so as to lead to a conclusion of a violation of Article 14 of the Constitution.

24. Several decisions of this Court have dealt with the issue. In Dr. Ami Lal Bhat v. State of Rajasthan11, a two judge Bench of this Court dealt with the provisions contained in the Rajasthan Medical Services (Collegiate Branch) Rules, 1962. Rule 11(1) prescribed that a candidate for direct recruitment should not have attained the age of 35 years on the first day of January following the last date fixed for the receipt of applications. Rejecting the contention that the cut-off was arbitrary, this Court held that the fixation of a cut- off prescribing maximum or minimum age requirements for a post is in the discretion of the rule making authority. The Court held thus:

"5. ....In the first place the fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. Basically, the fixing of a cut-off date for determining the maximum or minimum age required for a post, is in the discretion of the rule-making authority or the employer as the case may be. One must accept that such a cut- off cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a

cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some persons who will fall on the wrong side of the cut-off date. That cannot make the cut-off date, per se, arbitary unless the cut-off date is so wide off the mark as to make it wholly unreasonable."

9. Thus, it is the discretion of the rule-making authority or employer to fix a cut-off date for determining the maximum or minimum age for a post and the said fixing of cut-off date can be interfered with only if the same is palpably an arbitrary exercise of power or appears to be very wide off the reasonable mark. Merely delay in advertising public posts cannot be a ground to give wholesale relaxation to those who come to the court as the same will create an uncertainty and it might be unfair for those who did not fill the form thinking themselves to be overage. Moreover, the fixing of cut-off date cannot be held arbitrary merely on the ground of hardship. Since fixing of cut-off date is within the domain of the executive, the court should not normally interfere with the fixation of the same unless such decision appears to be blatantly discriminatory and arbitrary on the face of it. As soon as a cut-off date is fixed, there will be some aspirants falling on the wrong side of the cut-off date, however, they may not be allowed to challenge the same unless it is capricious or whimsical.

10. In view of the aforesaid legal principles, the issue before this Court is as to whether the fixing of cut-off date for computation of the maximum age limit by the respondent-State is blatantly arbitrary or discriminatory so as to warrant interference of this Court under its writ jurisdiction.

11. It is evident that the Jharkhand Combined Civil Services Examination Rules, 2021 has been framed by the orders of the Governor, Jharkhand in exercise of the power conferred by the proviso to Article 309 of the Constitution of India which has subsequently been notified by the Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand. As per Clause (v) of rule 3, the concerned cadre controlling department is required to calculate the number of vacancies each year on

1st January with respect to the service to be filled in that particular year by direct recruitment and to provide requisition for appointment to the Commission after roster clearance through the Department of Personnel, Administrative Reforms and Rajbhasa. Further, sub-rule (ii) of rule 4 provides that the Jharkhand Combined Civil Services Examination conducted by the Commission shall be known after the year of publication of advertisement of examination under the said Rules. The proviso to rule 4 further speaks that in case, due to unforeseen reasons the Combined Civil Services Competitive Examination is not held in a particular year, then the Commission will hold the examination for two (or more) years together by clubbing the vacancies.

12. Thus, by reasons of the Rules, 2021, it has been decided that vacancies will be advertised year-wise and if for some unforeseen circumstance the vacancies cannot be advertised in any particular year, then the examination will be held for two or more years together by clubbing the vacancies. It would be evident from the chart provided by the petitioners at paragraph-9 of the writ petition, which has not been controverted by the respondents that the last examination for Combined Civil Services in the State of Jharkhand was held in the year 2016 wherein the cut-off year for upper age limit was fixed as 2010. In the year 2020, the advertisement for Civil Services Competitive Examination-2017, 2018 and 2019 was published, however, the same got cancelled due to Covid-19 pandemic. After coming into force of the Rules, 2021, the Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand came out with resolution no. 805 dated 05.02.2021, discussing the fact that last vacancy of Combined Civil Services was advertised vide Advertisement No. 23 of 2016 in which the cut-off dates of upper and lower age limit were fixed as 01.08.2010 and 01.08.2016 respectively and thereafter due to certain reason, the vacancies could not be published for more than four years. It was also mentioned inter alia that the vacancies were expected to be published in the month of February 2021 and thus, the cut-off date for computation of upper age limit and lower age

limit were fixed as 01.08.2016 and 01.03.2021 respectively. Subsequently, Advertisement No. 01/2021 has been published and in view of the resolution no. 805 dated 05.02.2021, the lower age limit and upper age limit have been fixed as 01.03.2021 and 01.08.2016 respectively.

13. So far the rationality of the fixing of said cut-off date of upper age limit is concerned, it appears that since the examination could not be conducted in the year 2017, 2018, 2019 and 2020, the vacancies have been clubbed together keeping in view the Rules, 2021 and all those candidates who have become overage during that period have been permitted to appear in the examination by relaxing/fixing the cut-off date of upper age limit as 01.08.2016 and thus no arbitrariness, unreasonableness or irrationality is found in the decision of the respondent-State in fixing the said cut-off date. Since new rule has now been framed making provision for publication of vacancies year-wise with further provision of clubbing the vacancies if the examination is not held in a particular year, the prayer of the petitioners for directing the respondents to follow earlier pattern of fixing the cut-off date cannot be accepted.

14. One of the arguments of the learned counsel for the petitioners is that while giving age relaxation, the respondent-State has though considered those candidates who got overage between 2017 to 2020, it did not consider the adversity of those who were deprived due to non-conducting of examinations between 2011 to 2015 and thus such classification made by the respondent-State is highly discriminatory and unreasonable.

15. The learned Advocate General has countered the said argument of the learned counsel for the petitioners and has submitted that the persons who were aggrieved with non-holding of examination regularly till 2015, were already given opportunity to appear in the examination conducted in the year 2016 and as such, they cannot claim further relaxation of age in the examination to be conducted in the year 2021.

16. Undoubtedly, the cut-off date is not fixed with mathematical precision and in such manner so as to avoid hardships

in all conceivable cases. When a cut-off date is fixed, it might be in favour of some persons and at the same time against others, however, the same by itself may not make it arbitrary unless the date so fixed is grossly unreasonable. Even delay in publishing vacancies does not create right on the candidate who got overage due to such delay to claim relaxation in cut-off date especially when there is no allegation of any malafide in connection with any delay caused in issuing an advertisement.

17. The learned Division Bench of this Court in the case of "Krishna Kumar Mishra" (supra) while not entertaining the challenge of the cut-off date, has held as under:

"VII. If these type of petitions are allowed just to accommodate these petitioners, then every now and then similar type of matters will come to the Court, and if we allow a candidate aged about 49 years to prefer an application, then why not to a candidate aged about 50 years. If we allow a candidate aged about 50 years, then why not all the candidates aged about 55 years and so forth, and slowly this cut-off date will allow a candidate to prefer an application for the post in question just before couple of days of the age of his superannuation. This is not permissible in the eye of law. Unless the cutoff date is whimsical, capricious, arbitrary or wide off the mark, as to make it wholly unreasonable, it cannot be altered by the Court. In this eventualities only, the cut-off date can be further scrutinized by this Court."

18. I am of the considered view that interference in fixation of the cut-off date should not be made by the writ court on mere adversity to be faced by a group of aspirants (the petitioners herein) particularly when it appears from the chart provided by the petitioners in the writ petition itself that they have got the opportunity to appear in previous Jharkhand Combined Civil Service Examination held in the year 2016.

19. I have also perused the judgment of "Bhola Nath Rajak" (supra), wherein the learned Division Bench of this Court while answering the question as to whether the writ petitioners were entitled to have the cut-off date as 31.01.2009 for the purpose of calculating the maximum age of 35 years due to non-holding of the examination in terms of the Jharkhand Judicial Service (Recruitment) Rules, 2004, relaxed the upper age limit from 31.01.2013 to

31.01.2009 observing that after 2008, the examination could not be conducted for five years. It was held that since there had been no examination for recruitment for the post of Civil Judge (Junior Division) (Munsif), the cut-off date for the recruitment of Civil Judge (Junior Division) (Munsif) of 2013 (Advertisement No. 4/2013) should be 31.1.2009 to render justice to the deprived eligible candidates due to being overage. Accordingly, the cut-off date for fixing maximum age limit of 35 years in the impugned notification was ordered to be 31.01.2009 instead of 31.01.2013.

20. In the present case also, the respondent-State has followed the same principle by relaxing the upper age limit to the cut-off date as 01.08.2016 since the examination could not be held thereafter.

21. I am also not convinced with the argument of the learned counsel for the petitioners to contend that the vacancies are of the years prior to 2021 and as such the Rules, 2021 will not be applicable for the same. Since the Rules, 2021 has already been published, the provisions of the same will be applicable to any vacancy published thereafter irrespective of the year of vacancy.

22. The other limb of argument of the learned counsel for the petitioners is that earlier, combined vacancies for the year 2017, 2018 and 2019 were advertised vide Advertisement No. 01/2020 wherein the cut-off date for upper age limit was fixed as 01.08.2011, however, the same was cancelled due to Covid-19 pandemic and now in the present vacancies, the cut-off date for upper age limit has been fixed as 01.08.2016 which is without any rationale, rhyme and reason. The learned counsel for the petitioners has referred to the Advertisement No. 1/2020 wherein the upper age limit for appearing in combined Civil Service was fixed as 01.08.2011.

23. In the case of "Mohd. Rashid Vs. Director, Local Bodies, New Secretariat & Ors." reported in (2020) 2 SCC 582, the Hon'ble Supreme Court has held as under:

13. The appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of time the vacancies were advertised. The candidates such as the appellants cannot

claim any right of appointment merely for the reason that they responded to an advertisement published on 12-9-2013. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800] , a Constitution Bench of this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under: (SCC pp. 50- 51, para 7)

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in [State of Haryana v.

SubashChanderMarwaha, (1974) 3 SCC 220] ; [NeelimaShangla v. State of Haryana, (1986) 4 SCC 268] or [Jatinder Kumar v. State of Punjab, (1985) 1 SCC 122] ."

24. Thus, mere fact that at some point of time, any vacancy was advertised, does not by itself gives the aspirant to be appointed on a particular post. Even after completion of the selection process, the candidates coming in the merit list do not have any vested right to seek appointment only for the reason that their names appear in the same. In the present case, since the vacancy advertised in the year 2020 was subsequently cancelled due to the situation beyond control of the authority, the petitioners cannot claim any right by mere publication of the same.

25. In view of the aforesaid factual and legal position, I do not find any justifiable ground in the writ petition to interfere with the decision with respect to the cut-off date for computation of upper age limit fixed in the Advertisement No. 01/2021.

26. The writ petition being devoid of merit is accordingly dismissed.

I.A. No. 1320 of 2021 also stands dismissed.

(Rajesh Shankar, J.) Manish/AFR