Md. Rashid Faisal vs The State Of Jharkhand
2022 Latest Caselaw 1913 Jhar

                                     1

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(C) No. 1318 of 2022
                                    ---

      Md. Rashid Faisal                                ...     ...     Petitioner
                                      Versus
      1. The State of Jharkhand

2. The Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jhakhand, Ranchi

3. The Principal Secretary, Health, Medical Education and Family Welfare Department, Government of Jharkhand, Ranchi

4. The Chairman, Jharkhand Public Service Commission, Ranchi .... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. Arun Kumar, Advocate For the Resp. Nos. 1 to 3: Mr. Mohan Kumar Dubey, A.C. to A.G.

          For the Resp. No. 4       : Mr. Abhay Prakash, Advocate
Order No. 04                                         Dated: 11.05.2022

The present case is taken up through video conferencing.

2. The present writ petition has been filed for quashing the cut-off date for counting upper age limit of 35 years as on 01.08.2021 fixed for the candidates belonging to general category for appointment on the post of Dental Doctors within the State of Jharkhand in Advertisement No. 01/2022 issued by the respondent no.4- Jharkhand Public Service Commission (JPSC). Further prayer has been made for issuance of direction upon the respondents to fix the upper age limit as 42 years for appointment on the said post with respect to the candidates belonging to general category as has been fixed in Advertisement No. 09/2022 issued by the respondent-JPSC for appointment of Ayurvedic Doctors. The petitioner has also prayed for issuance of direction upon the respondent- JPSC to issue fresh advertisement fixing cut-off date regarding upper age limit for appointment on the said post as 01.08.2017 since examination for the said post has not been conducted after the year 2016.

3. Learned counsel for the petitioner submits that the respondent-JPSC has invited online application of recruitment examination for appointment on regular post of Dental Doctors within the State of Jharkhand vide Advertisement No. 01 of 2022 fixing the maximum age limit for the candidates of general category as 35 years as on 01.08.2021. The respondent-JPSC has also invited the application for appointment on regular post of Ayurvedic Doctors within the State of Jharkhand vide Advertisement No. 09 of 2022 fixing the upper age limit for the candidates

of general category as 42 years on 01.08.2021. Thus, the respondent- JPSC has adopted two different criteria for fixing the upper age limit to the candidates of general category. It is further submitted that the respondent- JPSC lastly issued advertisement in the year 2016 being Advertisement No. 02 of 2016 inviting applications of recruitment examination for appointment on the post of Dental Doctors, however it did not conduct the said examination. It is also submitted that by fixing the upper age limit of unreserved category as 35 years to be calculated from the cut-off date of 01.08.2021, the respondents have caused serious prejudice to the candidates belonging to the said category who crossed the age of 35 years between 2017 and 2021.

4. Mr. Mohan Kumar Dubey, learned A.C to A.G. appearing on behalf of the respondent nos. 1 to 3 while opposing the submission of the learned counsel for the petitioner, refers a judgment of learned Division Bench of this Court rendered in the case of Krishna Kumar Mishra Vs. The State of Jharkhand & Others reported in 2018 Supreme (Jhk) 130.

5. For better appreciation of this case, the relevant part of the said judgment is reproduced hereinbelow:-

"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."

6. Thus, the learned Division Bench after citing various judgments of the Hon'ble Supreme Court has held that fixation of cut-off date is within the domain of the executive authority and the court should not normally interfere with such decision unless it apparently appears discriminatory and arbitrary. The fixation of cut-off date cannot be relaxed on mere ground of delay in issuing an advertisement unless there is an allegation of malafide in connection with such delay caused. It has further been held that the aggrieved persons cannot challenge the fixation of cut-off date on mere ground of hardship suffered by them.

7. This Court also had an occasion to deal with the present issue in the case of Mukesh Kumar & Others Vs. Jharkhand Public Service Commission, Ranchi & Another reported in 2021 (3) JLJR 575 wherein challenge was made to the cut-off date for counting the upper age limit fixed by the respondent- JPSC with respect to the Jharkhand Combined Civil Service Competitive Examination, 2021 on the ground that due to non-holding of year-wise examination, several aspirants including the petitioners of the said case were ousted from the zone of consideration being age barred. This Court after going through the judgment rendered by the Hon'ble Supreme Court in the case of Hirandra Kumar Vs. High Court of Judicature at Allahabad and Another reported in (2019) SCC OnLine SC 254 and the judgment rendered by the learned Division Bench of this Court in Krishna Kumar Mishra (supra.), declined to interfere with the decision of the State and JPSC fixing the cut-off date for computation of upper age limit for appearing in the said examination and held as under:-

"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.

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."

8. Thus, fixation of cut-off date is the discretion of the rule making authority or the employer which should not be interfered unless the same is found palpably arbitrary or very wide off the reasonable mark. The delay in publication of advertisement cannot be a ground to give relaxation in the cut-off date regarding age limit especially when there is no allegation of malafide in connection with such delay caused.

9. In view of the aforesaid judgments, the petitioner seeking interference of this Court with the cut-off date of upper age limit on the ground that the vacancy was not advertised after 2016, has no leg to stand. Moreover, the hardship cannot be a ground to challenge the cut-off date fixed by the authority.

10. One of the contentions of the learned counsel for the petitioner is that the fixing of different upper age limits in the advertisements issued for recruitment of Dental Doctors and Ayurvedic Doctors i.e., 35 years and 42 years respectively is discriminatory as a result of which the petitioner has been deprived of appearing in the recruitment examination for the post of Dental Doctor.

11. It is well settled by now that fixation of cut-off date is an executive exercise for which several factors are taken into consideration i.e. financial, administrative, nature of job and other related issues. There is a

vast difference between the nature of job of a Dental Doctor and an Ayurvedic Doctor and as such the petitioner cannot claim arbitrariness on mere ground that upper age limit fixed for Ayurvedic Doctors is different from Dental Doctors.

12. Learned counsel for the petitioner has put reliance on the order dated 11.02.2022 passed by this Court in W.P.(C) No. 468 of 2022 (Manoj Kumar Vs. The State of Jharkhand & Another) and other analogous cases whereby this Court, by way of interim measure had directed the respondents to allow the petitioners of those cases as well as similarly situated persons to fill up the forms who had applied for the post of Block Supply Officer (BSO) in pursuance of Advertisement No. 03 of 2019, subject to the final outcome of the said writ petitions. This Court had made the said interim arrangement looking to the facts and circumstance of those cases in which the claim of the petitioners was that the vacancy earlier advertised for the post of Block Supply Officer had the cut-off date of upper age limit as 01.08.2010, pursuant to which they had filled up their forms, however the examination was not conducted. Subsequently, the respondents again advertised fresh vacancy for the post of Block Supply Officer with new cut-off date of upper age limit which was fixed as 01.08.2021 due to which they became ineligible to participate in the said examination being age-barred.

13. Thus, the facts of the aforesaid cases were altogether different from the facts of the present case. Otherwise also, any interim order passed by this Court does not set a precedence and hence will not help the case of the petitioner in any manner.

14. In view of the aforesaid discussion, I find no ground to entertain the prayer made in the present writ petition under extraordinary writ jurisdiction.

15. The writ petition is, accordingly, dismissed.

Ritesh/ AFR                                                  (Rajesh Shankar, J.)