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2012 Supreme(Jhk) 762
JHARKHAND HIGH COURT
D.N. PATEL, J.
Maqbul Ansari - Petitioner
Versus
The State of Jharkhand & Ors. - Respondents
W.P. (S) No. 2139 of 2012
Decided on: 17th May, 2012
For the Petitioner:Mr. Satish Prasad, Advocate
For the Respondent State: Mr. Mohan Kumar Dubey, J.C. to A.G.
The court's power of judicial review in matters relating to the fixation of cutoff dates for public employment is limited, and the court should exercise judicial restraint in such cases.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 226 - WRIT PETITION - PUBLIC EMPLOYMENT - AGE RELAXATION - CUTOFF DATE - FIXATION - JUDICIAL REVIEW - POWER OF COURT - SCOPE AND EXTENT - ARBITRARINESS - JUDICIAL RESTRAINT - BINDING PRECEDENTS - RELAXATION RULES - INTERPRETATION - APPLICABILITY - CIRCUMSTANCES WARRANTING RELAXATION - HARDSHIP - CASE FACTS - ANALYSIS AND CONCLUSION.
Fact of the Case:
Petitioner, belonging to the Most Backward Class category, applied for the post of Constable in response to a public advertisement issued by the State Government. The cutoff date for calculating minimum and maximum age was 1st January 2004, and the petitioner was 37 years 2 months and 28 days old as on that date, exceeding the maximum age limit prescribed for the category. The petitioner sought age relaxation, citing the State Government's power to relax age limits and the presence of approximately 12,000 vacancies for the post of Constable.
Finding of the Court:
The court held that the cutoff date fixed by the State Government was not arbitrary or whimsical and that there was no reason to alter or refix it. The court noted that the fixation of a cutoff date is within the domain of the executive authority and that the court should not normally interfere with it unless it appears to be blatantly discriminatory and arbitrary. The court also observed that the choice of a cutoff date cannot be dubbed as arbitrary even if no particular reason is given for the same, unless it is shown to be totally capricious or whimsical.
Issues: 1. Whether the cutoff date fixed by the State Government for determining the eligibility of candidates for the post of Constable was arbitrary or whimsical? 2. Whether the petitioner was entitled to age relaxation beyond the prescribed maximum age limit?
Ratio Decidendi: 1. The fixation of a cutoff date for determining the eligibility of candidates for public employment is within the domain of the executive authority, and the court should not normally interfere with it unless it appears to be blatantly discriminatory and arbitrary. 2. The choice of a cutoff date cannot be dubbed as arbitrary even if no particular reason is given for the same, unless it is shown to be totally capricious or whimsical. 3. Age relaxation beyond the prescribed maximum age limit may be granted in deserving cases and upon the recommendation of the Appointing Committee/Selection Committee, as per the relevant rules and regulations.
Final Decision: The writ petition was dismissed, and the cutoff date fixed by the State Government was upheld.
1. Present writ petition has been preferred mainly for the reason that the petitioner has applied for the post of Constable in pursuance of the public advertisement published in local newspaper on 13th January, 2004. The cutoff date for calculation of minimum and maximum age as per Clause 4 of the public advertisement is 1st January, 2004 and minimum age required is 19 years and maximum age in the category, for which, the petitioner has applied is 37 years. The petitioner belongs to Most Backward Class Category. In this category, maximum age limit prescribed is 37 years as on 1st January, 2004. The candidature of the present petitioner has been rejected on the ground that the petitioner was over age candidate as on 1st January, 2004.
2. Learned counsel for the petitioner submitted that the respondent-Government has power of age relaxation and, therefore, the petitioner's age, which is 37 years 2 months and 28 days as on 1st January, 2004 should have been accepted by relaxing the age limit for the candidature on the post of Constable. The respondents ought to have relaxed 2 months and 28 days period for the petitioner. Learned counsel for the petitioner is relying upon Annexures6 and 9. Annexure6 is a judgment and Annexure9 is a circular. Learned counsel for the petitioner has read paragraph 3 of the judgment delivered by this Court in L.P. A. No. 660 of 2005 dated 4th May, 2006, which is at Annexure3 to the memo of the petition.
3. Paragraph 3 of the aforesaid judgment reads as under:
“3. It is not in dispute that the appellant was under age as on 1st January, 2004. By that time, he disclosed his date of birth as on 1st January, 1985 and thereby, there was no misrepresentation on his part. There is a provision to relax any condition of service, commonly known as 'Relaxation Rule', framed under proviso to Article 309 of the Constitution of India by the then State of Bihar vide Resolution no. 111/R2010/ 55A11505 dated 28th November, 1956. The competent authority has been empowered to relax any condition of service in regard to any individual or a class of persons in case of hardship. Such power being vested with the competent authority, it is always open to any candidate to apply, though he may not fulfill one or other condition of service, such as, minimum age prescribed for appointment and can expect that favourable decision is taken. If no such application is filed, there will be no occasion for the competent authority to exercise of power of relaxation as conferred by Rule dated 28th November, 1956. In such a situation, it was always open to any candidate to apply with a hope for relaxing the specific criteria and if no misrepresentation is made, it cannot be held to be misleading the authority.
If a person is not eligible, the appointment can be held to be irregular or illegal or ab initio, void but that will not amount to misconduct or dereliction of duty or insubordination and thereby, no departmental proceeding for major punishment is attracted. The service of a person can be terminated on the ground of irregular or illegal appointment or appointment ab initio void but such person cannot be dismissed from service as a major punishment.
An illegal appointment cannot be legalized. Similarly, an appointment ab initio void cannot be recognized. But if any appointment is irregular, it can be regularized or may regularize automatically by efflux of time. If all procedures for appointment are made but if underage person is appointed, on attaining prescribed age, the appointment automatically stands regularized and, thereafter, it cannot be held to be illegal. Similar case fell for consideration before a Bench of this Court in the case of 'Cosmas Bhengra Vrs. State of Jharkhand & ors.' reported in 2005 (3) JCR 271 (Jhr.). That was also a case where a person, who was under age, i.e. three days less than the prescribed age, was appointed. In his case also, the State of Jharkhand dismissed him on the ground of misconduct, he
