Md. Jabbar Ansari vs The State Of Jharkhand
2021 Latest Caselaw 4053 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
             L.P.A. No. 209 of 2021
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Md. Jabbar Ansari, aged about 50 years, son of Md. Allauddin Ansari, permanent resident of Anssar Villa, Raza Bhattha Road, Naisaria Basti, PO and PS Ramgarh, District-Ramgarh .... Petitioner/Appellant Versus

1.The State of Jharkhand

2.The Principal Secretary, Urban Development and Housing Department, Project Building, 4th floor, Dhurwa, PO Dhurwa, PS Jagannathpur, District Ranchi.

3.The Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand having office at Project Building, Dhurwa, PO Dhurwa, PS Jagannathpur, District-Ranchi .... Respondents/Respondents CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Indrajit Sinha, Advocate Mr. Arpan Mishra, Advocate For the Respondents : Mr. Ashish Kumar, A.C to S.C. (Mines)-III

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Oral Judgment Order No. 2: Dated 28th October, 2021:

The instant intra-court appeal under Clause 10 of

Letters Patent is preferred against the order/judgment

dated 02.12.2020 passed by learned Single Judge in

W.P. (S) No. 5194 of 2018, whereby and whereunder the

learned Single Judge while dismissing the writ petition, has

declined to pass any positive direction in favour of writ

petitioner pertaining to direction for issuance of

appointment letter to the post of City Manager.

2. The brief facts of the case as per the pleadings

made in the writ petition are as under:

An advertisement was published by the Urban

Development Department, Government of Jharkhand on

18.12.2017 inviting applications for appointment on the

post of City Manager on contract basis. The said

advertisement contains the benefit of reservation to be

given to disabled person under the respective category

i.e. unreserved, scheduled caste and scheduled tribe.

The minimum and maximum age for consideration of

the candidature on the post in question as prescribed in

the advertisement as on 01.08.2017 was 21 and 45

years respectively. Further stipulation has been made in

the advertisement that benefit of reservation will be

given as per the policy of the Government of Jharkhand.

The writ petitioner participated in the process of

selection by submitting application and he was allowed

to participate in the process of selection but finally he

was not selected on the ground that was found to be

over-aged as the maximum age fixed in the

advertisement is 45 years but he was found to be 47

years as on cut-off date.

The writ petitioner on the backdrop of the

aforesaid fact approached to this Court by filing writ

petition being W.P. (S) No. 5194 of 2018, which was

dismissed refusing to pass any positive direction,

which is the subject matter of present intra-court

appeal.

3. Mr. Indrajit Sinha, learned counsel for the

petitioner-appellant has assailed the impugned order on

the ground that the learned Single Judge, while

dismissing the writ petition, has not considered the

object and intent of 'The Rights of Persons with

Disabilities Act, 2016' [hereinafter referred to as 'Act,

2016'], which provides a provision under sub-section (3)

of Section 34 for relaxation of upper age limit of

employment of persons with benchmark disability. The

appointing authority ought to have considered the case

of the writ petitioner for consideration of appointment to

the said post by giving relaxation in the upper age limit

in view of the specific provision under Section 34(3) of

the Act, 2016 but having not done so, spirit and object

of the Act, 2016 has been flouted, which has not been

appreciated by learned Single Judge in its right

prospective and, therefore, the order passed by the

learned Single Judge is not sustainable in the eyes of

law.

Mr. Sinha has further submitted that once the

writ petitioner is allowed to be participated in the

process of selection his candidature ought not to have

been rejected merely he crossed the maximum age limit

of 45 years.

4. The State is represented by Mr. Ashish Kumar,

A.C to learned S.C. (Mines)-III, who has defended the

order passed by learned Single Judge by taking the plea

that the writ petitioner has participated in the process of

selection by submitting his application after going across

the terms and conditions of the advertisement which

contains a specific provision for minimum and

maximum age as 21 and 45 years as on 01.08.2017 and

as such the petitioner ought not to have appeared in the

said selection process having found to be crossed the

maximum age as stipulated in the said advertisement. It

has further been submitted that even though the writ

petitioner was allowed to participate in the selection

process but it does not create any right contrary to the

terms and conditions of the advertisement.

Further submission has been made that the writ

petitioner is seeking relaxation in view of provision of

Act, 2016 but the statutory provision contained in the

aforesaid statute does not contain any provision to grant

relaxation, however, provision has been made as under

Section 34(3) thereof to confer power upon the

appropriate Government to make out rules for relaxation

but on the date of such advertisement in question there

was no such rule formulated by the State Government in

pursuance to the provision as contained under Section

34 (3) of the Act, 2016. Therefore, the learned Single

Judge, after taking into consideration the aforesaid

aspect of the matter, has dismissed the writ petition,

which cannot be said to suffer from any infirmity.

5. In response to such submission, Mr. Sinha,

learned counsel for the writ petitioner has refuted the

argument advanced on behalf of learned counsel for the

respondents-State to the effect that there was no

circular framed by State in response to Section 34(3) of

the Act, 2016 since according to him the circular has

been formulated as on 04.07.2016 prescribing therein a

condition as clause no. 10 that the power to relax the

maximum age for the disabled persons will be exercised

by the Personnel, Administrative and Rajbhasha

Department and as such it is incorrect to say that there

are no power to relax the maximum age of a candidate

belonging to disabled category.

He has also relied upon another circular issued on

02.04.2018, which contains a provision to grant

relaxation in the maximum age with a further condition

that five years relaxation is to be granted to the disabled

persons having the benchmark of the disability of 40%.

Therefore, according to him the power of relaxation has

been provided under the said circular but all these

government decisions, as contained under these

circulars were not taken into consideration by the

learned Single Judge, therefore, matter requires

consideration.

6. We have heard learned counsel for the parties,

perused the documents available on record and findings

recorded by 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, which are necessary

for adjudication of the lis.

The undisputed facts in the present case is that

an advertisement was published on 18.12.2017 inviting

applications for appointment on the post of City

Manager on contract basis by the Urban Development

Department, Government of Jharkhand. In the said

advertisement stipulation has been to provide the benefit

of reservation to the disabled person under the

respective category i.e. unreserved, scheduled caste,

scheduled tribe, EBC-I and BC-II.

With the conditions aforesaid, the writ petitioner

applied for appointment on the post in question having

the age of about 48 years under the disabled category

claiming 40% disability. Initially, the application of the

writ petitioner was considered but later it was found that

he has crossed the upper age limit as prescribed in the

advertisement, as such his candidature was rejected.

The writ petitioner being aggrieved with the

rejection of his candidature approached before this

Court, by filing writ petition being W.P. (S) No. 5194 of

2018, by invoking writ jurisdiction of the Court under

Article 226 of the Constitution of India but the writ

petition was dismissed by refusing to pass any positive

direction which is the subject matter of present intra-

court appeal.

8. The plea has been taken by appellant-writ

petitioner about applicability of the provision as

contained under Section 34(3) of Act, 2016 by which

power has been conferred upon the appropriate

Government may, by notification, provide for such

relaxation of upper age limit for employment of persons

with benchmark disability, as it thinks fit.

9. Admittedly, on the date of submission of

application the writ petitioner was not eligible for the

post in question, as he had crossed the maximum age of

45 years as stipulated in the advertisement. It further

appears form Annexure 2 to the writ petition, which is a

letter dated 28.12.2017 written by the writ petitioner to

the respondents-authorities by which grievance has

been raised against prescription of maximum age of 45

years, as fixed in the advertisement,

that since the writ petitioner has already

attained the age of 48 years and as such he could not be

able to participate in the process of selection, therefore,

direction was sought for to allow him to participate in

the selection process. From perusal of Annexure 2 to the

writ petition, letter written by writ petitioner to the

respondents-authorities, it further appears that even

though it was well within the knowledge of the petitioner

that he has crossed the maximum age limit, as per

advertisement, but he consciously applied for

appointment on the post in question and participated in

the process of selection.

In this regard, position of law is well settled that

appointment, if made to such candidate who crossed the

maximum age limit such appointment will be treated to

be illegal appointment.

Further, admitted position herein is that on the

date of advertisement, there was no such circular, as

has been required to be promulgated in view of mandate

of Section 34(3) of the Act, 2016.

One another circular has been brought to the

knowledge of this Court issued on 04.07.2016 at the

time when the statute, namely, 'The Persons with

Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995 was invoked, as has been

annexed as Annexure 10 to the writ petition. We have

gone across the said circular and found therefrom that

the decision has been taken to grant relaxation in the

age as would appear from condition no. 10 thereof with

the stipulation that the power to grant relaxation will be

upon Personnel, Administrative and Rajbhasha

Department but what would be the limit of age

relaxation that has not been stipulated therein.

Further contention has been raised by drawing

attention of this Court towards circular dated

02.04.2018, which has been formulated under the

provision of Act, 2016 which contains a specific

provision under Section 34(3) for conferring power upon

the appropriate government which may make to rule for

relaxation of upper age limit for employment of persons

with benchmark disability. But even in the said circular

no such provision has been made for grant of relaxation

of age by fixing the period of relaxation, except the power

to grant relaxation has been conferred upon the

Personnel, Administrative and Rajbhasha Department,

as would appear from Annexure 11 to the writ petition.

We have also gone across the circular dated

12.10.2018 wherein the State Government by resorting

to the provision as contained under Section 34(3) of the

Act, 2016, has granted relaxation in maximum age of 10

years to the disabled person. It would be evident from

the said circular that for the unreserved category, the

maximum age prescribed is 35 years while for disabled

persons, it is 45 years. Likewise, for the Backward

Class/EBC, it is 37 years while for the disabled person it

is 47 years and for female and SC/ST, both male and

female, the maximum age limit is 38 years, 40 years for

general while for disabled it is 50 years respectively.

Thus, it is evident from the aforesaid circular

dated 12.10.2018 that for unreserved category

candidates the maximum age fixed for general candidate

would be 35 years while granted relaxation of 10 years

age for disabled persons i.e. up-to 45 years.

10. We have again gone across the advertisement dated

18.12.2017 wherein for unreserved category candidate,

irrespective of the medically fit candidate or the disabled

persons, the maximum age has been prescribed, which

was in the circular dated 12.10.2018 as 35 years for the

general and for the disabled persons it is 45 years.

Therefore, in the advertisement 45 years has been fixed

as the maximum age for all category of candidates

inclusive of disabled persons which by virtue of grant of

relaxation for 10 years in the circular dated 12.10.2018

has been enhanced to 45 years by giving relaxation.

Therefore, according to our considered view if in the

advertisement since the maximum age has been prescribed 45

years for both the general and disabled person it cannot

be said to cause prejudice to the writ petitioner.

Further question would be that if 45 years age has

been fixed for disabled persons and it is enhanced it to 48

years then why not 50 years or 52 years and if such

relaxation would be granted the same would be

unending process and each and every candidate will

come if relaxation would be granted up-to age of 48

years.

Further, the writ petitioner has participated in the

process of selection after going through the condition as

stipulated in the advertisement and even though

objection has been made but the writ petitioner

appeared and when his candidature has been rejected

he has now questioning the terms and conditions of the

advertisement, which according to settled position of law

is not available to the writ petitioner to challenge after

rejection of his candidature. The matter would have been

different if the candidature would be rejected on

unknown ground then certainly the writ petitioner would

have a cause of action and after knowing the result i.e.

after conclusion of the process of selection or after

screening out of the writ petitioner from fray but that is

not the case in hand as writ petitioner was knowing his

position for consideration of candidature the day when

the advertisement was published, as he has already

crossed the maximum age by attaining the age of 45

years. Therefore, the same ought to have been

questioned by the writ petitioner before Court of law at

the threshold and not after rejection of his candidature

on the ground of having crossed the age of 45 years.

11. In this regard, it is settled position of law that once

a candidate is participated in the process of selection he

cannot turn around and challenge it if found to be

unsuccessful or on any ground whatsoever as has been held

by Hon'ble Apex Court in the case of Dr. G. Sarana Vs.

University of Lucknow and Others, [(1976) 3 SCC 585] at

paragraph 15 which as under::-

"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:

"It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."

The Hon'ble Apex Court in the judgment rendered in

Om Prakash Shukla Vs. Akhilesh Kumar Shukla and

Others (1986) Suppl. SCC 285 has observed at paragraph

24 as under :-

"24.Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The

High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination."

Likewise, in Marripati Nagaraja and Others Vs.

Government of Andhra Pradesh and Others (2007) 11

SCC 522 the Hon'ble Apex Court has held at paragraph 19

which reads hereunder as under :-

"19. .... ... ... Appellants had appeared at the examination without any demur. They did not question the validity of the said question of fixing of the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process."

The Hon'ble Apex Court further in the case of

Vijendra Kumar Verma Vs. Public Service Commission,

Uttarakhand and Others (2011) 1 SCC 150 held as

under:-

"28.Besides, in K.H.Sirej v. High Court of Kerala in SCC paras 72 and 74 it was held that the candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not turn around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground of estoppel."

12. Learned counsel for the appellant placing reliance

upon the judgment rendered by Hon'ble Apex Court in

Vikash Kumar Vs. Union Public Service Commission

& Ors [(2021) 5 SCC 370], has submitted that this

Court is required to consider the very object and intent

of the Act, 2016 wherein the principle of reasonable

accommodation has been considered by considering the

object and intent of the Act, 2016 by dealing with the

principle of discrimination against the disabled.

According to learned counsel for the petitioner

herein also by not considering the case of the writ

petitioner, the respondent-authorities have adopted

discriminative attitude but we are not impressed with

such argument by taking into consideration the factual

aspect involved in the said case that the appellant was

suffering from the disability in the form of dysgraphia,

commonly known as writer's cramp, and as such to

pursue the career in the Civil services, he appeared in

the year 2017 for civil services examination-2017. A

scribe was provided to him by UPSC to enable him to

give written test.

UPSC had issued notification for CSE-2018. The

Department of Personnel and Training issued CSE-2018

rules providing the manner and conduct of examination.

The general instruction provided that all candidates

must write their paper with their own hand and will not

be allowed to take the help of scribe. Exception to this

rule were provided for blind candidates and candidates

with locomotors disability or cerebral palsy where

dominant (writing) extremity is affected to the extent of

slowing the performance of function (minimum of 40%

impairment) were allowed to write the examination with

the help of scribe.

The claim of the appellant in the said case

regarding provision of scribe was rejected by the UPSC.

Being aggrieved of the same, litigation was drawn before

Central Administrative Tribunal. The matter went before

the Division Bench of the Delhi High Court and finally

the matter went before the Hon'ble Apex Court.

The Hon'ble Apex Court decided the issue

about the concept of benchmark disability as also the

principle of reasonable accommodation to provide

additional support to the person with disabilities to

facilitate the full and effective participation in society.

Thus, the Hon'ble Apex Court has basically dealt with

the object and intent of the Act, 2016 to provide full

participation without any discrimination in the society to

the disabled persons.

In the case in hand, it is not the case that the

category of disabled persons has been considered

differently by adopting the principle of discrimination

rather the circular dated 12.10.2018 which prescribed

the maximum age of 45 years granting 10 years

relaxation from the general candidate whose maximum

age is 35 years 10 year relaxation has been granted to

the candidate belonging to disabled category by fixing

their maximum age up-to 45 years, while the maximum

age for general candidates has been fixed as 35 years.

The advertisement discloses the maximum

prescription of age to be 45 years and as such according

to our considered view the maximum age of 45 years

which is equal for both the category i.e. general as also

disabled category candidate is in consonance with the

circular dated 12.10.2018 issued by the respondents-

State of Jharkhand in terms of the provisions as

contained under Section 34(3) of the Act, 2016 but the

grievance of the writ petitioner is that why 45 years has

been fixed to be maximum age limit also for the general

category candidate who are not suffering from any

disability and since 45 years maximum age has been

fixed to the candidate who are not disabled therefore,

prejudice has been caused to the writ petitioner falling

under the category of disabled.

But the question is that even accepting the 45

yeas maximum age as has been fixed for the general

category candidate who are not coming under disabled

category while 45 years has also been fixed for the

disabled category candidate and merely because the

general category candidate, who are not disable, has

been decided to be considered up-to 45 years no

prejudice would be caused to the candidature of the

candidate who are under the disabled category for the

reason that under the reserved category, in pursuance

to the advertisement, the post has been earmarked by

treating the said reservation to be horizontal in nature.

When the post has been earmarked for the disabled

category in each category based upon the social

reservation, therefore, there is no question of

encroaching upon the seats which have been earmarked

for the disabled category rather since the seat which is

to be filled for disabled category comes under horizontal

reservation and the age of both the candidates, who are

not coming under disabled category and the candidate

who are coming under disabled category, has been fixed

to be 45 years and once post has been earmarked for

disabled category candidate, if selected on merit, the

post which has been earmarked for the disabled

category will be filled up from amongst such category of

candidate if found to be within the maximum

prescription of age i.e. up-to the age of 45 years.

Therefore, according to our considered view the

judgment upon which the reliance has been placed is

not aiding the case of the writ petitioner in view of the

fact that the writ petitioner has not questioned the terms

and conditions of the advertisement at the threshold and

even accepting that has not been questioned, even then

according to our considered view no prejudice has been

caused to the writ petitioner merely because the same

maximum age has already been fixed for general

category candidate who are coming under disabled

category of candidate.

Further, the writ petitioner is only required to

consider for own candidature and merely because he

has also crossed the age of 45 years the relaxation is

required to be granted is not acceptable to this Court

otherwise the question would be that why 48 years and

why not 50 or 52 years and as such it will be an

unending demand by one or the other candidate.

13. The only requirement to see that the object and

intent of the Act, 2016 has been observed or not, which

after going through the materials available on record as

also the discussions made herein above has been found

to be observed by taking maximum age of 45 years for

disabled category candidate also which will be said to be

in consonance with the government circular dated

12.10.2018.

14. We, after discussing into entirety as hereinabove

vis-à-vis legal position, have also considered the

order passed by learned Single Judge and found

therefrom that the facts has been considered and after

taking into consideration the specific condition

stipulated in the advertisement fixing the maximum age

of 45 years for disabled person, learned Single Bench

has refused to pass any positive direction, which

according to our considered view, suffers from no error.

15. Accordingly, the appeal fails, and is dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Alankar/ -

A.F.R.