D.G.R. Patnaik, J.
1. Petitioners in these writ applications have commonly challenged the Advertisement No. 01 of 2008 (Annexure-2), issued by the Respondent No. 5, taking objection to the maximum age limit of 24 years fixed as one of the eligibility criterias for recruitment of candidates to the post of the Sub-Inspectors of the Police in the Jharkhand Police Service. The main questions raised for determination are:
(i) Whether the vacancies and the posts accumulated since 1999 of Sub-Inspector and the equivalent posts accumulated in the year 1999, have been included in the impugned advertisement which remained vacant for a long time?
(ii) Whether by fixing the upper age limit as 24 years for the General Category candidates as on 01.01.2008, candidates, who were eligible for appointment on the post in question in the year 1999, can be debarred from their appointment?
(iii) Whether the action of the Respondents in fixing the cut off date as 01.01.2008 instead of 01.01.1999, is illegal, arbitrary and mala fide and an act of discrimination?
(iv) Whether the action of the Respondents is violative of Articles 14 and 16 of the Constitution of India, deserving interference by this Court in the interests of justice?
2. The common contention of the petitioners in these writ applications is that the last examination for selection to the post of Sub-Inspector when the process of recruitment was taken up by the Respondents-State in the State's Police Service was held in the year 1994. After the bifurcation of the erstwhile State of Bihar when the State of Jharkhand came into existence with effect from 15.11.2000, the State of Jharkhand had not taken any initiative to fill up the vacancies whatsoever to the post of Sub-Inspectors and equivalent posts.
The State of Jharkhand adopted the Bihar Police Manual with certain amendments vide Memo No. 3300 dated 12.11.2001 and in one of the modified clauses, the upper age limit for the General Category candidates in the Police Service has been fixed from 19 years to 35 years.
Pursuant to the requisition of the State Government, the Jharkhand Public Service Commission had issued a Notification No. 11 of 2007 by which their Civil Services Examination was conducted by the J.P.S.C. for the appointment in the Jharkhand Police Service and in the corresponding advertisement issued by the J.P.S.C., the upper age limit has been fixed as 35 years for the General Category Candidates.
In spite of the above, the impugned advertisement has now fixed the upper age limit for the General Category candidates as 24 years as on 01.01.2008 besides the other requisite eligibility criteria of being a Graduate from any recognised university or the equivalent.
3. The grievance of the petitioners is that they had completed their Graduation way back in the year 2002 and had thereby become eligible for appointment to the post of Sub-Inspector but the State of Jharkhand did not initiate any effort to fill up the vacant posts by recruitment since, 2002 and it is only now in 2008 that the Respondent-State has taken the initiative but in doing so, they have tried to discriminate the candidates by fixing the upper age limit at 24 years in the General Category, thereby debarring the petitioner and other similar candidates, from the employment opportunity on account of their having crossed the upper age limit.
4. Mr. Manish Kumar, learned Counsel appearing for the petitioners argues that the State of Jharkhand had adopted the Bihar Police Manual and certain amendments were carried out vide Memo No. 3300 dated 12.11.2001 in Rule 658 of the Manual. The modification carried out vide the amendment, had declared that the upper age limit for the General Category candidates for appointment be fixed at 35 years.
Pursuant to the requisition of the State Government, the Jharkhand Public Service Commission, Ranchi had issued a Notification No. 11 of 2007 by which the third Civil Services Examination was conducted for appointment of candidates in the Jharkhand Police Service. The Notification also maintained the upper age limit for the General Category candidates as 35 years.
Learned Counsel submits further that in spite of the above upper age limit fixed at 35 years for General Category candidates in the Police Manual, the Respondent No. 5 has issued the impugned Advertisement for appointment to the post of Sub-Inspector in the State Police Service fixing the maximum upper age limit as 24 years as on 01.01.2008 and by a supplementary advertisement increasing the age limit to 25 years as on 01.01.2009. Learned Counsel argues that the process for selection of candidates to the post of Sub-Inspectors is now being sought to be taken for the first time after creation of the State of Jharkhand and after more than 13 years from the date of last selection tests. Learned Counsel argues that by accumulating the vacancies for more than 5 years since after the creation of the State of Jharkhand and proceeding to fill up the accumulated vacancies now by reducing the upper age limit for the General Category candidates is an act, totally arbitrary and discriminatory on the part of the Respondent-State.
Learned Counsel argues further that by fixing the eligibility criteria of minimum educational qualification of Graduate, the age at which a majority of candidates appear at the Matriculation Examination is around 16 years and adding five more years counted to complete Graduation, a candidate normally acquires the Graduate Degree in between the age of 21/22 years. The petitioner and such other candidates like him, had acquired the Graduate Degree in year 2002 and according to the eligibility criteria, had become eligible for appointment on the post of Sub-Inspector. The State Government by its inaction has failed to fill up the vacancies eversince the year 2000 when the State of Jharkhand came into existence and has now for the first time after accumulating the vacancies, has decided to fill up the vacancies but by fixing the upper age limit at 25 years, the petitioner and several other candidates like him, have been debarred from their appearance at the Selection Test on the ground of exceeding the maximum age limit.
Referring in this context to the judgments of the Supreme Court in A.I.R. 1994 SC 736 and to the judgment of the Patna High Court in 2000 (3) P.L.J.R. 231, learned Counsel argues that the aforesaid judgments declare that no amendment can be brought about by administrative action to change the service conditions and ignoring the service conditions as laid down in the State Policy.
Referring to the modification in Rule 658 of the State Police Manual by way of amendment carried out on 12.11.2001, whereby the upper age limit for the General Category candidates for appointment in the post in the Jharkhand Police Service was declared as 35 years, learned Counsel explains that the aforesaid modification declares the State Policy. This is also reflected in the Advertisement issued by the J.P.S.C, vide Advertisement No. 11 of 2007 for recruitment of candidates in the Jharkhand Police Service in which, the upper age limit has been fixed at 35 years for the General category candidates. Learned Counsel argues that the policy as declared by the State Government could not have been altered by the Respondent No. 3 by reducing the upper age limit to 25 years.
Learned Counsel argues further that Articles 14, 12 and 48A of the Constitution of India must be applied both in relation to Executive Action as also in relation to a legislation and therefore, it is within the scope of the powers of this Court to make a judicial review of the administrative action of the Respondent-State Government.
5. Counter affidavit has though been filed by the Respondents but it does not specifically controvert the grounds advanced by the petitioners. On the contrary, the counter affidavit acknowledges the fact that the examinations for appointment to the post of Sub-Inspectors in the State Police Service could not be conducted since after 1994. Learned Counsel for the Respondent-State acknowledges that a modification in Rule 658 of the Police Manual was made vide Memo No. 3300 dated 12.11.2001 by the Stats Government in the matter of appointment to the post of Constables, under which the upper age limit to the post of Constables in the General Category has been fixed at 35 years. The counter affidavit does not assign or explain the reasons at to why despite the aforesaid Modification in Rule 658 of the Police Manual, the upper age limit for selection of the candidates for appointment to the posts of Sub-Inspectors in the General Category, has now been limited to 25 years and what is the rationale behind the reduction in the upper age limit.
6. Mr. P. K. Prasad, learned Advocate General has, however, tried to explain that the amendment in Rule 658 of the Police Manual fixing the upper age limit for the General Category candidates at 25 years, has been made by the State Government under the orders of the State Government in exercise of the Governor's power under Article 309 of the Constitution of India and under the provisions of Section 46 of the police Act, 1861.
The impugned Advertisement (Annexure-2) is accordingly issued by the Director General of Police, Jharkhand, Ranchi (Respondent No. 3), wherein the upper age limit has been fixed as per the modification carried out in Rule 658 of the Police Manual.
7. It needs to be noted that the impugned Notification/Advertisement (Annexure-2), does not declare that the recruitment is to be made for any special category of Officers in the Police Service or to fulfill any particular objective. The Notification only declares the total vacancies in each of the categories of service, including the post of Sub-Inspectors both in the General Category as well as in the reserved categories.
8. It is not disputed that in the Advertisement issued by the State Government through the Jharkhand Public Service Commission for appointment to the vacant posts of Civil Services including the State Police Service, an advertisement for conducting the Third Civil Services Examination for recruitment to the post of administrative services as well as the Police Services was issued as recently as in the month of November, 2007. The upper age limit for the General Category candidates in respect of the services advertised, was fixed at 35 years.
9. Learned Advocate General would want to interpret the Modification/amendment made in Rule 658 of the Police Manual as a legislative Act within the competence of the Governor under the provisions of Article 309 of the Constitution of India and would submit that the Modification by which the upper age limit has been fixed at 25 years, cannot be subject of judicial review.
10. By a catena of decisions, the Supreme Court has laid clown the principles of judicial review applicable in case of administrative as well as in legislative action. In cases where constitutionality and/or interpretation of any legislation, which is made by the legislative body or by executive authority by way of their authority is in question, the writ Court can certainly exercise the power of judicial review. In the case of Union of India v. Pushpa Rani and Ors. A.I.R. SCW (39) 6564, the Supreme Court has observed that even though the matter relating to prescribing the mode of recruitment and qualifications, criteria of selection etc. fall within the exclusive domain of the employer, yet the power of judicial review can be exercised in such matters, if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is absolutely arbitrary or is vitiated due to mala fides.
The scope of judicial review when examining a policy of the State Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution or opposed to any statutory provision or manifestly arbitrary.
11. The petitioner in the instant case has questioned the legality of the impugned Notification, wherein the upper age limit of the General Category candidates has been fixed at 25 years and thereby, has also challenged the legality of the modification made in the relevant Rule of the Police Manual by the authority of the Governor in exercise of powers under Article 309 of the Constitution of India. Challenge is made or the ground that reducing of the upper age limit from 35 years to 25 years is arbitrary, and against the State Policy, therefore is in violation of the provisions of Article 14, 12 and 48A of the Constitution of India.
12. The issue relating to fixation of upper age limit, in the matter of recruitment to the Government posts came up for consideration before the Patna High Court in the case of Dr. Rabindra Kumar Singh and Ors. v. State of Bihar and Ors. 2000 (3) P.LJ.R. 231 and more recently before the Jharkhand High Court in the Case of Sanjeev Kumar Sahay and 3 Ors. v. State of Jharkhand and Ors. . In both the cases, though the Advertisements were for appointment to the posts of Health Officers and to the post of Civil Judge, Junior Division, the facts of the case were identical as in the present case in as much as no prompt steps were taken by the Respondents-authorities for filling up the vacant posts and such vacancies were allowed to accumulate and finally after several years such vacancies were sought to be filled up and the upper age limit was fixed with reference to a stipulated cut off date. Taking note of the abnormal delay in filling up the vacancies, which has accumulated through out the several years, the Court in the case of Dr. Rabindra Kumar Singh and Ors. (Supra) has observed as follows:
Although there is no compulsion on the part of the Government to make appointment even though vacancies are available, but if vacancies are allowed to accumulate and bulk appointments are made at a time, there may be possibility of candidates possessing inferior merit coming in-where examinations are held periodically, the chances are that the best of the available lot would be appointed candidates, otherwise eligible becoming overage is the inevitable fall-out of not making recruitment periodically.
13. The same situation arises in the present case. As admitted in the counter affidavit of the Respondent-State, no effort for recruitment in the State Police services was made ever since after 1994. Even after the creation of the State of Jharkhand in the year 2000, the vacancies accumulated for several years and it is only now that by the impugned Notification/Advertisement, the State Government has decided to fill up the vacancies. By fixing the upper Age limit at 25 years for the General Category Candidates, those who were otherwise eligible during the preceding years, have become over age and therefore not qualified in terms of the eligibility criteria fixed in the impugned Advertisement.
14. As observed above, in the earlier modification in Rule 658 of the Police Manual by way of amendment in the Police Act carried out on 12.11.2001, the State Government had declared the upper age limit for recruitment in the State Police Service at 35 years in the General Category. If this was a declaration of the State Policy, then, in absence of any reason assigned or explanation offered, it is not understood as to why the upper age limit has been reduced to 25 years and what purpose which such reduction in the upper age limit would serve?
15. Under such circumstances, the contention of the petitioner that the reduction of the upper age limit as indicated in the impugned Advertisement, is arbitrary and in violation of the provisions of Article 14 and 16 of the Constitution of India, is not without substance. The decision to fix the upper age limit at 25 years has apparently not taken into consideration the fact that the recruitment process is sought to be initiated for filling up such vacancies, which had accumulated during the past several years, after a considerable delay and that during this period of delay, several candidates who could have been otherwise eligible, would be disqualified on account of becoming over age.
16. Even though, the recruitment relates to posts in the Police Service for which standards of eligibility criteria, different from the standards in respect of recruitment to other Government services may have to be reasonably fixed, yet the criteria laid down for recruitment to the posts in the Police Services, must satisfy the test of reasonableness and cannot under any circumstance reflect arbitrariness and discrimination. A reasonable balance has to be maintained in the light of the fact that the candidates, who could have been otherwise eligible, cannot be deprived of the employment opportunities on account of the delay made by the State Government in filling up the vacant posts in the Police Service.
17. Considering the above facts and circumstances, since the matter relating to prescribing the mode of recruitment, criteria of selection etc. is within the domain of the State Government, the matter is referred back to the State Government to consider a review of its policy in the matter of fixing the upper age limit taking into consideration the fact that by the earlier policy decision of the State Government as declared in the amendment carried out in Rule 658 of the Police Manual notified vide Memo No. 3300 dated 12.11.2001, the upper age limit was fixed at 35 years and also taking into account the fact that the vacancies, which have been allowed to accumulate for several years are now being sought to be filled up after a considerable delay of more than eight years of the creation of State of Jharkhand, thereby affecting the rights of several candidates, who could have been otherwise eligible for appointment after having acquired the prescribed educational qualifications during the preceding years in terms of the earlier State Policy. Till such time a review is made, the process of recruitment in terms of the impugned advertisement shall be kept in abeyance by the Respondents.
18. With these observations, these writ applications [W.P. (S) No. 1667 of 2008 with W.P. (S) Nos. 1574 and 3354 of 2008] are disposed of at the stage of admission itself.
19. Let a copy of this order be given to the learned Counsel for the Respondent-State.