Susmita Kumari vs State Of Jharkhand
2021 Latest Caselaw 4004 Jhar

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    L.P.A. No.160 of 2021
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Susmita Kumari, aged about 25 years, daughter of Kaushal Nath Mahto, resident of Village Kadma, P.O. & P.S. - Kanke, District - Ranchi (Jharkhand).

                                       ...   ...     Appellant
                             Versus
1.   State of Jharkhand

2. Director General of Police, Jharkhand, having its office at Police House, Dhurwa, P.O. & P.S. - Dhurwa, District- Ranchi

3. Deputy Inspector General of Police, Jharkhand Armed Police, having its office at Police House, Dhurwa, P.O. & P.S. - Dhurwa, District - Ranchi

4. Commandant, Jharkhand Armed Police, Hazaribagh, P.O. & P.S. Hazaribagh, District - Hazaribagh ... ... Respondents

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CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant    : Mr. Rajendra Krishna, Advocate
For the State        : Mr. P.A.S.Pati, G.A.-II
                       Mr. Ashish Kumar, A.C. to G.A.-II
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ORAL JUDGMENT
Order No. 04 : Dated 26th October, 2021

The instant appeal, preferred under Clause 10 of the

Letters Patent, is directed against the order/judgment dated

25.01.2021 passed by learned Single Judge of this Court in

W.P.(S) No. 5281 of 2017 whereby and whereunder the writ

petition has been dismissed declining to issue a mandamus

upon the respondents for issuance of appointment letter in

favour of the writ petitioner for appointment on the post of

Constable in the State of Jharkhand in pursuance to the

Advertisement No.4/2015.

3. The brief facts of the case as per the pleadings made in

the writ petition which require to be referred herein, read as

under :-

The concerned department of the State of Jharkhand

has come out with an advertisement being Advertisement

No.4/2015 for appointment on the post of Constable in the

State of Jharkhand. The writ petition submitted online

application for the said examination to be known as

Jharkhand Constable Competitive Examination, 2015, which

was conducted by Jharkhand Staff Selection Commission

(JSSC).

The writ petitioner participated in the process of

selection i.e., preliminary test as also in the main

examination. The writ petitioner belongs to EBC-I category

and was found successful in the preliminary and, therefore,

she was called upon to participate in the main examination.

The writ petitioner also appeared in the physical test and

measurement which was fixed on 30.11.2016 at Ranchi.

On being successful in the written and medical test, she

was directed to appear on 30.12.2016 for verification of the

documents relating to educational qualification as well as

caste certificate. The writ petitioner was declared as

successful candidate on 15.06.2017 and was directed to join

in the office of Commandant, Jharkhand Police Force-VII at

Hazaribagh along with all relevant certificates. The petitioner

submitted her joining in the office of the Commandant,

Jharkhand Armed Force at Hazaribagh and her entire

documents were verified. The writ petitioner was re-measured

wherein she was found 3 cm less than the required height as

disclosed in the Police Manual and advertisement.

The writ petitioner approached this Court and in

pursuance to the direction passed by this Court dated

13.06.2018, a Medical Board was constituted comprising of

Chief Medical Officer and four other Medical Officers in

presence of a Judicial Officer, Ranchi Civil Court. Pursuant

thereto, the writ petitioner had appeared before the said

Medical Board which, in its report, has stated that the writ

petitioner was found to be 145 cm whereas the requirement

of the height was 148 cm and, therefore, the writ petitioner

was not allowed to join the post.

The writ petitioner, in the backdrop of this fact, has

approached this Court by invoking jurisdiction conferred

under Article 226 of the Constitution of India by filing writ

petition being W.P.(S) No.5281 of 2017 taking the plea that

the competent authority even though having the power to

relax the rules in certain circumstances and in few cases

such power has been exercised in pursuance to the order

passed by this Court in Cosmas Bhengra and Reena

Kumari v. State of Jharkhand and Others [2005 (3) JCR

271 (Jhr.)] but such power has not been exercised with

respect to the writ petitioner and, therefore, the matter be

quashed and remitted back for its consideration for

relaxation in the measurement of height.

The aforesaid submission of the writ petitioner has

seriously been refuted by the respondent State of Jharkhand

by taking the plea that the specific criteria of physical fitness

is provided under the terms and conditions of the

advertisement which also includes the height to be 148 cm

for one or the other female candidate.

The writ petitioner since has been found not to fulfil the

said condition, therefore, she has rightly not been allowed to

join her duties.

The plea of applicability of Rules 672 and 663 of the

Jharkhand Police Manual has been taken whereby the case of

the writ petitioner has not been found to be considered which

prescribes that the height of the female candidates should be

148 cm and considering the aforesaid aspect of the matter,

the said condition to that effect has also been inserted in the

advertisement.

Learned Single Judge, after taking into consideration

this aspect of the matter, is correct in showing no

interference with the decision of the administrative authority.

Learned Single Judge, after appreciating the argument

advanced on behalf of the parties, has found the writ petition

to be not a fit case for remanding back the matter to the

authorities with a direction for relaxation in exercise of power

conferred to this Court under Article 226 of the Constitution

of India and has dismissed the writ petition which is the

subject matter of the present intra-court appeal.

4. Mr. Rajendra Krishna, learned counsel appearing for the

appellant, has submitted that the learned Single Judge has

not appreciated the fact that the letter of appointment issued

in favour of the appellant creates a right to continue in

service on the post of Constable.

He further submits that the learned Single Judge has

not taken into consideration the fact that the action of the

respondents in not allowing the appellant to join her duties is

in violation of Article 14 and 16 of the Constitution of India.

He further submits that the learned Single Judge has

also not taken into consideration the fact that in view of the

judgment passed in the case of Cosmas Bhengra and Reena

Kumari v. State of Jharkhand and Others (Supra), which

states that relaxation can be granted in certain

circumstances and having not done so, gross error has been

committed by the learned Single Judge.

5. Per contra, Mr. P.A.S.Pati, G.A.-II appearing for the

respondent State, has submitted that pursuant to the

appointment letter issued, the petitioner was re-measured

and thereafter her appointment was cancelled. He submits

that in the appointment letter it was disclosed in clear terms

that this is not the final appointment letter and the

appointment shall subject to the conditions mentioned

therein. He further submits that in view of the Rules 672 and

663 of the Police Manual, wherein the height for female

candidates has been prescribed as 148 cm and in that view of

the matter, the case of the petitioner is not fit to be

considered.

He submits that the learned Single Judge, after

considering the entire facts and also taking into consideration

the relevant Rules of the Jharkhand Police Manual, i.e., Rule

672 and 663, has rightly dismissed the writ petition which

cannot be said to suffer from an error and accordingly, the

order impugned may not be interfered with.

6. We have heard the learned counsel for the parties,

perused the documents available on record as also the

finding recorded by the learned Single Judge in the impugned

order.

7. This Court, before entering into the legality and

propriety of the impugned order, deems it fit and proper to

refer certain undisputed facts of this case as per the material

available on record.

The State Government has made a requisition before the

JSSC for appointment of Constables in the State of

Jharkhand. Pursuant to the requisition, the JSSC issued an

advertisement being Advertisement No.4/2015 which has

been referred as Jharkhand Constable Competitive

Examination, 2015. The said competitive examination

consists preliminary test, main examination, physical and

medical examination of one or the other candidates. The

candidates who participated in the process of selection, if

found to be successful in the preliminary test, will be called

upon for the main examination and the candidates who have

been declared successful in the main examination, will have

to appear in the physical and medical examination. The

advertisement discloses the physical condition and one of the

conditions pertains to the minimum height of the female

candidates as 148 cm.

The writ petitioner had participated in the preliminary

test in which she was declared to be successful and,

therefore, she was called upon to participate in the main

examination in which also she was declared to be successful.

Thereafter, the writ petitioner was called upon to participate

in the physical and medical examination in which also she

was declared to be successful. On being declared successful

in all the stages of examination, she was appointed and was

directed to report in the office of Commandant, Jharkhand

Police Force-VII along with relevant documents for its

scrutiny. The writ petitioner reported to the concerned office

along with the documents but the concerned office where the

writ petitioner had reported, had subjected the writ petitioner

for physical and medical examination in which the writ

petitioner was found 3 cm less than the height required as per

the advertisement. The writ petitioner was restrained from

joining the said post, in consequence thereof, the writ

petitioner approached this Court by filing writ petition being

W.P.(S) No.5281 of 2017. The said writ petition has been

dismissed observing that it would not be proper for the High

Court sitting under Article 226 of the Constitution of India to

issue mandamus in exercise of power conferred therein

commanding upon the respondent State of Jharkhand to

grant relaxation in the condition stipulated in the

advertisement. However, the writ petitioner has taken the

plea that on earlier occasion certain relaxation has been

granted in favour of the candidates by putting reliance upon

the judgment rendered by this Court in Cosmas Bhengra

and Reena Kumari v. State of Jharkhand and Others

(Supra).

8. The settled position of law required to be referred herein

is that the power of relaxation, if available, is to be exercised

by the competent authority of the State Government. It is also

settled position of law that there cannot be any relaxation in

the terms and conditions of the advertisement as has been

held by Hon'ble Apex Court in Bedanga Talukdar v.

Saifudullah Khan & Ors. [AIR 2012 SC 1803], wherein it

has been laid down that there cannot be any relaxation in the

terms and conditions contained in the advertisement unless

the power of relaxation is duly indicated in the advertisement

and/or if there is power of relaxation in the said rules, the

same would still have to be specifically indicated in the

advertisement. Paragraph 29 of the said judgment is quoted

hereunder :-

"29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.‖

9. It is equally settled that if any illegality has been

committed by any of the authority of the State respondent, no

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instance can be taken for applying the principle laid down

under Article 14 of the Constitution of India as Article 14

does not envisage negative equality rather it always envisages

positive equality. Purpose is that, if Article 14 will be allowed

to be considered in a case of wrong committed, the result

would be that the illegality will be allowed to be continued

and it is settled position of Law that illegality cannot be

allowed to be perpetuated as has been held in the case of

State of Orissa and Anr. v. Mamata Mohanty, [(2011) 3

SCC 436], wherein the Hon'ble Apex Court has been pleased

to hold that if any illegality has been committed, the same is

to be rectified the moment it came to the notice of the

authorities and if such exercise would not be resorted, it will

amount to perpetuating the illegality. The Hon'ble Apex Court

in the said judgment, at paragraphs 56 and 57 has been

pleased to hold as under:-

―56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief.

57. This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji

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v. State of A.P. observed as under: (SCC p. 551, para

12) ―12. ... ‗2. ... To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter at p. 18: ―a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors‖.

Further, in State of Bihar & Ors. Vs. Kameshwar

Prasad Singh & Anr., [AIR 2000 SC 2306], wherein at

paragraph-30 it has been laid down as hereunder:-

―30. The concept of equality as envisaged under Art. 14 of the Constitution of India is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them.

Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits.‖ Further, in the case of Basawaraj & Anr. Vs. Special

Land Acquisition Officer, [(2013) 14 SCC 81], wherein at

paragraph 8, which reads as hereunder:

"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus,

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if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible."

10. The provision as contained under Rule 672 and 663 of

the Jharkhand Police Manual has been relied upon by the

State. The provision as contained under Rule 672 of the

Jharkhand Police Manual speaks about medical examination

which is quoted as hereunder :-

―672. Medical examination.--(a) All constables before being enlisted shall be sent to the Medical Officer of Police Hospital for examination, together with a register in P.M. Form No. 104 in which every man‗s name shall he entered. The candidates' left thumb impression shall be taken in the register. The examining Medical Officer shall take a similar impression on the corresponding side and the two impressions shall he compared. No man shall be enlisted unless the Medical Officer passes him as fit.

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Only selected recruits shall be sent and no charge shall be made for a medical examination in their case. The Superintendent may bring to the notice of Senior Executive Medical Officer-cum-Civil-Surgeon any case in which he thinks a fresh examination should be taken up by him.

(b) Selected candidates for employment in Government service will he examined only on the requisition of the head of the department or office for which they have been selected. Such requisition shall be addressed to Deputy Superintendent of Sadar Hospital or to Medical Officer of Police Hospital of the district in which they are to serve vide Government of Bihar (Health Department) Memo. No. IIIM/1602/5921361/H, dated 9th July, 1960.

Note.-- ( l ) The term ―selected candidate‖ includes only those persons who can produce a requisition for medical examination from an officer who is making an appointment to a permanent post under Government, supported by a certificate to the effect that they have been selected for that post subject to their obtaining a medical certificate. In these cases only, health certificates will be granted free of charge [See Bihar Health Manual, I957; 450(7) and note (i)].

(2) In other cases where a person is a candidate for an office a fee of Rs. 5 will be payable for the health certificate to be attached with his application.‖

Thus, it is evident that provision of Rule 672 as

contained in the Jharkhand Police Manual stipulates that all

constables before being enlisted shall be sent to the Medical

Officer of Police Hospital for examination.

The provision of Rule 663 provides the minimum

measurement of height and chest.

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The provision as contained under Rule 663 of the

Jharkhand Police Manual has subsequently been repealed

vide notification dated 12.11.2001 whereby and whereunder

the minimum height for the female candidate has been

prescribed as 148 cm.

So far as the power conferred in the un-repealed

provision as contained under Rule 663 of the Jharkhand

Police Manual upon the selection body to relax the age for

special reason and relaxation in height and chest is

concerned, the said provision has also been repealed,

meaning thereby, even the power of relaxation which was

available in the un-repealed provision under Rule 663 of the

Jharkhand Police Manual, has been repealed.

As has been submitted by the learned counsel for the

writ petitioner/appellant that power of relaxation is there but

by going through the provision as contained under Rule 663

after its repealment and inserting the another provision by

virtue of Notification dated 12.11.2001, it is evident that

though there was power to relax the age, height and chest

but that power has been taken away by virtue of the aforesaid

notification.

11. The writ petitioner/appellant has taken the instance of

Cosmas Bhengra and Reena Kumari v. State of

Jharkhand and Others (Supra), as would appear from the

impugned order that the relaxation has been granted to one

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Cosmas Bhengra so far as his age is concerned and the

relaxation has also been granted to one Reena Kumari with

regard to her Hindi reading and writing test but the question

is that if the State Government has granted some relaxation

with respect to the other appointees can it confer right upon

the writ petitioner for seeking same direction if such

relaxation was granted by the concerned authority of the

State Government with respect to the other candidates? The

answer of this Court would be in negative by taking into

consideration the settled position of law that there cannot be

any negative equality under Article 14 of the Constitution of

India since Article 14 envisages positive equality as has been

held in State of Orissa and Anr. v. Mamata Mohanty

(Supra), State of Bihar & Ors. Vs. Kameshwar Prasad

Singh & Anr. (Supra) and Basawaraj & Anr. Vs. Special

Land Acquisition Officer (Supra).

Therefore, according to our considered view, said

instance will not come to aid the writ petitioner/appellant by

granting relaxation in favour of the writ petitioner contrary to

the statutory provision.

12. The learned Single Judge, after taking into consideration

this aspect of the matter and considering the scope of the

provision of Article 226 of the Constitution of India in the

matter of grant of relaxation contrary to the statutory

provision vis-à-vis the terms and conditions of the

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advertisement, is correct in not passing any positive direction

in favour of the writ petitioner, which according to our

considered view, suffers from no error.

13. Accordingly, the instant appeal is dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Birendra/ A.F.R.