Jharkhand High Court
Md. Shahid vs The State Of Jharkhand on 31 July, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.391 of 2022
With
I.A. No.8722 of 2022
------
Md. Shahid, Aged about 51 years, S/o Late Wahid Khan
.... .... Appellant
Versus
1. The State of Jharkhand
2. The Inspector General of Police (personnel), Jharkhand,
officiating from the office of Inspector general of police,
Hazaribagh, Jharkhand, Ranchi, P.O. Hazaribagh, P.S.-Sadar
Dist. Hazaribagh
3. The Deputy Inspector general of police, Hazaribagh Officiating
from the office of deputy inspector General of police, Hazaribagh
P.O-Hazaribagh, P.S.-Sadar Distt-Hazaribagh
4. The Superintendent of police, Ramgarh-cum-Chairman, Police
Recruitment committee, Officiating from the office of
superintendent of police Ramgarh P.O.-Ramgarh, P.S. Ramgarh
Distt-Ramgarh .... .... Respondents
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
------
For the Appellant : Mr. Obaid Ahmad, Advocate
For the State : Mr. Rahul Saboo, G.P.-II
: Mr. Abhilash Kumar, A.C. to G.P.-II
------
06/Dated: 31.07.2023
I.A. No.8722 of 2022
This interlocutory application has been preferred under Section 5 of
the Limitation Act for condoning the delay of 112 days in preferring this
Letters Patent Appeal.
2. Heard.
3. In view of the submissions made on behalf of the parties and the
averments made in the interlocutory application more particularly at
paragraph-7 thereof, we are of the view that the appellant was prevented
by sufficient cause in preferring the appeal within the period of limitation.
4. Accordingly, I.A.No.8722 of 2022 is allowed and delay of 112 days
in preferring the appeal is condoned.
L.P.A. No.391 of 2022
5. The instant intra-court appeal preferred under Clause-10 of Letters
Patent is directed against the order/judgment dated 13.04.2022 passed by
the learned Single Judge of this Court in W.P.(S) No.1736 of 2011,
whereby and whereunder, the decision taken in memo no.190 dated
09.02.2011, by which, the representation of the writ petitioner was rejected
for his appointment as Constable in terms of advertisement being
Advertisement No.01/2004.
6. The brief facts of the case, as per the pleading made in the writ
petition, required to be enumerated, are as hereunder:-
7. It is the case of the writ petitioner that an advertisement being
Advertisement No.01/2004 was published in the newspaper for selection
of the Constables in all the districts of Jharkhand. The writ petitioner
applied for the aforesaid post and after completing the process, he was
called for the written examination and physical test at Giridih.
8. The height and chest of the appellant were measured and master
chart was prepared. The merit list of successful candidates was prepared
and published in the newspapers whereby he was declared successful.
The writ petitioner received a call letter dated 01.04.2007 issued by the
Superintendent of Police, Hazaribagh informing that he has been selected
and he was directed to appear in the Police Line, Hazaribagh along with
all the original documents. Thereafter, the writ petitioner appeared in the
Police Line, Hazaribagh on the date fixed along with all original
documents which were duly verified and found to be genuine and he was
directed to submit the originals of his all educational and other certificates
in the office of Superintendent of Police, Hazaribagh. Thereafter, on
objection, his height was re-measured and measurement of his height was
lesser than what was recorded in the master chart. The writ petitioner was
not allowed to join his duties for the reasons best known to the
respondents and no reason was assigned to the writ petitioner for not
allowing him to join and perform his duties. The writ petitioner having no
other option, has approached to this Court by filing writ petition being
W.P.(S) No.1580 of 2009, in which, the respondent-authority has
appeared and filed reply by way of counter affidavit.
9. The case was taken upon on 19.05.2010 and hearing both sides,
the Court has been pleased to direct the appellant to be present physically
before the Civil Surgeon-cum-Chief Medical Officer, Hazaribagh along with
3 coloured photographs and the CMO, Hazaribagh was directed to
measure the height of the writ petitioner and report to the High Court. The
height of the writ petitioner was recorded as 177cm. The case of the writ
petitioner was again taken up on 05.07.2010 and after hearing both the
parties, this Court has disposed of the case directing the writ petitioner to
file representation before the respondent no.3 who shall consider the case
of the writ petitioner. The writ petitioner filed representation before the
respondent no.3 on 02.08.2010. The case of the writ petitioner was
rejected vide memo no.190 dated 09.02.2011 for the reason that the
pointes allotted for the heights of 175.5 cm and 177 cm is the same, i.e.,
11 points and again the points of the writ petitioner fell short by one point
from the last selected candidate. Being aggrieved with the aforesaid order,
the writ petitioner has filed writ petition being W.P.(S) No.1736 of 2011 but
the learned Single Judge after taking into consideration the aforesaid fact,
has refused to interfere with the order impugned dated 09.02.2011, hence,
the present appeal.
10. It appears from the pleading made in the writ petition as referred
above that in terms of the advertisement no.01/2004, the writ petitioner
along with others had participated in the process of selection for his
appointment as Constable. The writ petitioner, although, has been found
to be successful and the appointment letter has also been issued.
However, at the time of joining when his height was again measured, it
was found to be 175.5 cm. and as such, he was not permitted to join.
11. The writ petitioner, being aggrieved with the aforesaid action of the
authorities, has approached to this Court by filing the writ petitioner being
W.P.(S) No.1580 of 2009, in terms thereof, his height was again re-
measured and he was found to be 177 cm. Accordingly, the joining of the
writ petitioner has not been accepted since, he was found to be less in
height to the extent of 0.5 cm and hence, he has obtained 11 marks as per
the parameters of height i.e., 177 cm and accordingly, he was found to
have obtained less marks than the last selected candidate.
12. The writ petitioner against the said decision of the authority again
come to this court by filing writ petition being W.P.(S) No.1736 of 2011.
13. The learned Single Judge, after taking into consideration the fact
that after re-measurement also the writ petitioner was found to be less in
height to the extent of 0.5 cm and hence, he has obtained 11 marks which
was less than the marks obtained by the last selected candidates, which is
the subject matter of the instant appeal.
14. Mr. Obaid Ahmad, learned counsel appearing for the appellant-writ
petitioner has submitted by referring to the decision taken by the Deputy
Inspector General of Police as contained in memo no.337 dated
24.03.2007, whereby and whereunder, the decision was taken to give
relaxation of 0.5 cm, but the aforesaid decision has not been taken into
consideration in right perspective by the learned Single Judge.
15. It has been submitted that if the aforesaid decision would have been
taken into consideration, then the writ petitioner would have been given
relaxation to the extent of 0.5 cm and he would have been appointed.
16. Learned counsel for the appellant, in the aforesaid premise, has
submitted that the impugned judgment suffers from infirmity.
17. Per contra, Mr. Rahul Saboo, learned G.P.-II appearing for the State
of Jharkhand has submitted that although, the Deputy Inspector General
of Police has come out with memo no.337 dated 24.03.2007 but the same
will have no bearing since the question of relaxation is to be given by the
State, not by the functionaries of the State.
18. Learned Single Judge, has taken into consideration minimum
requirement of having 12 marks and if one or the other candidates having
measured the height of 177.5 cm, then the writ petitioner would have got
12 marks but since his height assessed on re-measurement in between
175.5 to 177 cm, therefore, he has been given only 11 marks which has
been found to be less from the last selected candidates and accordingly,
he has been declared to be unsuccessful.
19. According to the learned counsel, the learned Single Judge has
taken into consideration the aforesaid fact and if in that circumstance, the
order impugned dated 09.02.2011, rejecting the claim of the writ petitioner
has been refused to be interfered with, the same cannot be said to suffer
from an error.
20. We have heard the learned counsel for the parties, perused the
documents available on record as also considered the finding recorded by
the learned Single Judge in the impugned order.
21. The issue which requires consideration as to whether the Deputy
Inspector General of Police while issuing the memo being memo no.337
dated 24.03.2007 can have its bearing in the process of selection
regarding relaxation in the height.
22. The same is having bearing, since, the fact herein is that the writ
petitioner at the initial stage was found to be 177.5 and subsequent to his
success and after issuance of appointment letter, when has reported for
his joining, then his height on re-measurement was found to be 175.5 and
accordingly, his joining was not accepted.
23. The writ petitioner has taken the ground that once the decision has
been taken by the Deputy Inspector General of Police for granting
relaxation, then relaxation ought to have been granted, then the writ
petitioner would have been selected.
24. The question of relaxation is the exclusive domain of the State and
the same cannot be exercised by the functionaries of the State.
25. The law is settled that the relaxation cannot be granted in favour of
one or the other candidates, rather, the same is to be taken by way of
policy decision and if one or the other candidates is coming under the fold
of relaxation clause, the relaxation is to be granted.
26. The further law is settled that if the relaxation will be granted to one
particular candidate, then question would be that why not to others and in
that view of the matter, if the relaxation will be granted, then it will hit the
principle as laid down under Article 14 of the Constitution of India, as has
been held in the case of Bedanga Talukdar Vs. Saifudaullah Khan &
Ors reported in AIR 2012 SC 1803. The relevant paragraphs, paragraph
nos. 28 and 29 of the said judgment, are quoted hereunder as:-
"28.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 quality
contained in Articles 14 and 16 of the Constitution of India.
29. A perusal of the advertisement in this case will clearly
show that there was no power of relaxation. In our opinion,
the High Court committed an error in directing that the
condition with regard to the submission of the disability
certificate either along with the application form or before
appearing in the preliminary examination could be relaxed
in the case of respondent No. 1. Such a course would not
be permissible as it would violate the mandate of Articles 14
and 16 of the Constitution of India."
27. This Court, on the premise of the aforesaid judgment is of the view
that even if the Deputy Inspector General of Police has come out with the
decision to grant relaxation, the same will have no binding effect, since,
the same has not been issued by the State Government by way of policy
decision.
28. Further, in the context of the fact of this case, the height is the
parameter for allocation of the marks, basis upon which, the merit list is to
be prepared, as would appear from stipulation to that effect made at
Annexure-8 available at page-31 of the paper book, which is being
referred as under:-
"11- es/kk lwph %
¼d½ 'kkjhfjd {kerk tk¡p ,oa fyf[kr ijh{kk esa lQy mEehnokjksa dh es/kk lwph ¼esfjV fyLV½
mEehnokjksa dh Å¡pkbZ vkSj 'kS{kf.kd ;ksX;rk ds fy, fu/kkZfjr vadksa ds dqy ;ksx ds vk/kkj ij rS;kj
dh tk;sxhA
vad fuEukafdr :i ls fu/kkZfjr gSa %
Å¡pkbZ ¼ls- vad Å¡pkbZ ¼ls- eh- vad 'kS{kf.kd vad
eh- esa½ esa½ ;ksX;rk
¼iq:"k ds ¼efgykvksa ds
fy,½ fy,½
mÙkhZ.k
155-1&157 01 148-1&150 01 baVj ;k
led{k
mlds
mij
mij
lQy mEehnokjksa dh ojh;rk lwph mudh Å¡pkbZ ,oa 'kS{kf.kd ;ksX;rk ds vk/kkj ij izkIr vadksa ds
vk/kkj ij gksexkMZ ,oa xSj gksexkMZ ds fy, vyx&vyx cukbZ tk;sxhA vkjf{kr oxZ dk dksbZ
mEehnokj ;fn lkekU; oxZ ds cjkcj vad izkIr djrk gS] rc og lkekU; oxZ dk mEehnokj ekuk
tk;sxkA
;fn nks ;k nks ls vf/kd mEehnokj ds izkIrkad ,d gh gks rks ml ifjfLFkfr esa vkilh ojh;rk
mudh mez dh ojh;rk ds vk/kkj ij] ,oa VkbZ gksus ij mudh 'kS{kf.kd ;ksX;rk ds vk/kkj ij
fu/kkZfjr dh tk;sxhA blesa Hkh VkbZ gksus ij vkilh ojh;rk Å¡pkbZ ds vk/kkj ij fu/kkZfjr dh
tk;sxhA... ... ..."
29. It appears from the aforesaid reference of the marks based upon
the height that the marks vary from one centimeter. If the writ petitioner
would have been given relaxation, the entire merit list will be disturbed.
The variation of marks is the paramount consideration for preparation of
merit list.
30. The writ petitioner, on earlier occasion had been allocated 12
marks, since, his height was assessed to be 177.5 cm. But on re-
measurement when the height of the writ petitioner was found to be 177
cm, his marks automatically has reduced to 11, since, the marks has been
earmarked for the candidates who are having the height 177.5 cm.
31. It appears from the pleading that the writ petitioner has never
challenged the re-assessment of height to be 177, rather, his all along
case is that he is to be given the relaxation on the basis of the order
passed by the Deputy Inspector General of Police as contained in memo
no.337 dated 24.03.2007 which itself suggests that the writ petitioner has
accepted his height to be 177 cm, otherwise, there was no reason for
seeking relief based upon the decision taken vide memo no.337 dated
24.03.2007.
32. Since, we have already given a finding that the Deputy Inspector
General of Police is having no power to grant relaxation, rather, power to
grant relaxation vests upon the State, therefore, there cannot be any
relaxation.
33. Further, since the writ petitioner has accepted his height to be 177
cm, therefore, he on re-consideration of his height has been allocated 11
marks which is less than the last selected candidates and in that view of
the matter, if the writ petitioner has not been selected/appointed, the
selection process cannot be said to suffer from an error.
34. The law is well settled that the scope of judicial review regarding the
recruitment, is very limited and the same can only be exercised if there is
any error in the decision making process of selection and not in the
process of selection, as has been held by the Hon'ble Apex Court in the
case of Syed TA Naqshbandi and Ors. Vs. State of J&K and Ors.,
[(2003) 9SCC 592], wherein the Hon'ble Supreme Court has observed as
under:-
"Judicial review is permissible only to the extent of
finding whether the process in reaching the decision
has been observed correctly and not the decision
itself, as such. Critical or independent analysis or
appraisal of the materials by the Courts exercising
powers of judicial review unlike the case of an
appellate court, would neither be permissible nor
conducive to the interests of either the officers
concerned or the system and institutions......"
35. This Court, after having discussed the legal/factual aspect as above
and coming to the order passed by the learned Single Judge, wherefrom,
it appears that the learned Single Judge has given thoughtful
consideration by taking into consideration the height of 177 cm and
accordingly, 11 marks has been allocated and further by taking into
consideration that the writ petitioner has obtained less marks than the last
selected candidate and therefore, is of the view that there is no reason to
interfere with the said order.
36. In the result, the instant appeal fails and is dismissed.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Rohit/-A.F.R.
