Ravi Kumar Lama Vs. the State of Bihar and ors. - Court Judgment

Excerpt:
bihar police manual - rules 661(b), 663, 666 and 10(a)--bihar and orissa military police manual--rule 9--police act, 1861--section 7--appointment of sepoy--writ petition in the nature of mandamus for direction to respondents--petitioner cannot question the condition laid down in the advertisement for the first time in the writ petition--petitioners being below 19 years of age, no provision exists for relaxation of lower age--terms and conditions of appointment was not governed by police order no. 202/88--but the procedure for appointment, etc. was governed by rule 666 of bihar police manual--fixation of cut-off date was not arbitrary or unreasonable--held, petition not maintainable. - - learned counsel further submitted that in view of the fact that the appointment of the petitioner was to be governed by the bihar military police manual, the impugned advertisement must be held to be bad in law and in terms of the statutory provisions, the petitioner is entitled to be appointed. 663. selection of recruits--(a) strong, healthy young men between the ages of 19 and 27 years and who have passed secondary i. s.b. sinha, j.1. the petitioner, in this case, has asked for issuance of or in the nature of mandamus directing the respondents to appoint him as a sepoy in the bihar military police service.2. the fact of the matter lies in a narrow compass. an advertisement was issued on 8-5-1993 inviting applications for appointment of 95 sepoys. the last date for submitting the applications was 10-6-1993. the petitioner submitted his application on 10-6-1993 and he was directed to appear before the selection board. according to the petitioner, he has already been selected but he has not been appointed on the ground that he was not aged 19 years on 1-6-1993.3. mr. upendra prasad, learned counsel for the petitioner, drew our attention to rule 661(b) and 663 of the bihar police manual and submitted on the basis thereof that in terms of the said rules persons in between the age of 19-27 years are to be selected. learned counsel submitted that as on the date of selection of the petitioner, he crossed 19 years of age, there was no impediment in his appointment.learned counsel further submitted that in any event the respondents have the power to relax the age limit and in that view of the matter, as the petitioner was called for interview and was also directed to appear in further tests, the age bar would be deemed to have been relaxed. it was stated that in any event the appointment of the petitioner shall be governed by rule 10 of the bihar military police manual which provides for appointment of a person who is aged 18 years and in respect of nepalis the age of appointment is 16 years. learned counsel further submitted that in view of the fact that the appointment of the petitioner was to be governed by the bihar military police manual, the impugned advertisement must be held to be bad in law and in terms of the statutory provisions, the petitioner is entitled to be appointed.4. in this case a counter-affidavit has been filed on behalf of the state wherein it has been contended that the fact that the petitioner did not fulfil the criteria of appointment, was detected at later stage. it was further submitted that the board has right to appoint a person or not to appoint. it was further stated that the board has right to appoint any person on ground of his proficiency in particular sports or cultural field. it has further been submitted that the appointment with regard to bihar military police is guided by the police manual and police order no. 202/88. it was submitted that the fixation of age-limit was mandatory in nature and in view of the advertisment in question the question of consideration of age of the candidates with reference to date of selection does not arise.5. according to the petitioner, his date of birth is 5-6-1974. as noticed hereinbefore, the petitioner has taken contradictory and inconsistent stand inasmuch as he has contended that the provisions of bihar police manual as also the bihar military police manual shall apply to his case.6. as noticed hereinbefore mr. upendra prasad has himself submitted that in the matter of appointment of the candidates in bihar military police, the provisions of bihar military police manual shall apply but he himself referred to bihar police manual for the purpose of contending that the autho rities have the power to relax the age-limit in terms thereof. the relevant provisions of the bihar police manual namely, rule 661(b) and rule 663 read as follows:66l(b): by whom appointed.-- constables shall be appointed by district superintendent of police for which a list will be prepared by the selection board duly constituted for the purpose.663. selection of recruits--(a) strong, healthy young men between the ages of 19 and 27 years and who have passed secondary i. e. matriculation examination shall be selected as recruits as far as possible 7. it is true as has been contended by mr. prasad that the matter relating to appointment and condition of service of military police is also governed by the bihar police manual. rule 9 of the bihar and orissa military police manual provides that every recruitment shall be entitled under section 7, act v of 1861 in the manner prescribed by p.m. rule 666. rule 10 (a) provides for physical standard which reads as follows:except as provided below no recruit shall be enlisted in the military police companies or squadron who is under 18 or over 25 years of age, unless in the later case he has had previous service in the army or the police force. in the gurkha companies the enlistment of boys not under the age of 16 is permitted up to a maximum of 5 per cent of the sanctioned strengh.8. the state of bihar appears to have taken a policy decision being police order no. 202/88 whereby and whereunder the physical standar, the age limit and other factors which are relevant for the purpose of appointment, have been laid down. the said rule also applies in the matter of recruitment of bihar military police. however, in such an event, a separate selection committee is to be constituted by which the commandant would be the chairman. from a perusal of the aforementioned police order no. 202/88 it appears that the age limit fixed thereby is 19 years to 27 years.9. the said rule also provides for the power of the state to relax the upper age limit in case of scheduled caste. the upper age limit would be 30 years for the scheduled caste and for the scheduled tribe, the same would be 35 years. from a perusal of the advertisment it appears that para 4 thereof provided that the age of the candidate would be in between 19 to 35 years of age as on 1-6-1993. the said advertisement, as noticed hereinbefore, was issued on 8-5-1993. the petitioner did not question the said advertisment and filed an application for appointment and appeared before the selection board.10. in this view of the matter, in our opinion, the petitioner cannot be permitted to question the conditions laid down in the said advertisment for the first time in this writ application as it is not the case of the petitioner that he did so before the authorities concerned. the petitioner has admitted that as on 1-6-1993 he did not complete 19 years of age. mr. prasad is also not correct in contending that either under the bihar police manual or the bihar military police manual or under the aforementioned police order no. 202/88 any provision exists for the relaxation of the lower age limit as is the specific provision for the relaxation of upper age limit. the power of relaxation so far lower age limit is concered, the same must be held to be excluded by necessary implication.11. further, as noticed hereinbefore, the procedure for appointment etc. are to be governed by rule 666 of bihar police manual. it is not the case of the petitioner nor has he questioned the averments made in the counter-affidavit that the terms and conditions of appointment are governed by the aforementioned police order no. 202/88 as contained in annexure-a to the counter-affidavit.12. further, from the advertisement in question it does not appear that the appointments were made for gurkha regiment although applications were invited from the applicants who were gurkhas of indian origin.13. further, nothing has been pointed out before us that fixation of cut off date i.e. 1-6-1993 is arbitrary or unreasonable. the last date for submis sion of the applications was 10-6-1993. in our opinion, the cut-off date mentioned in the said advertisment cannot be said to be wholly arbitrary or unreasonable.14. for the reasons aforementioned, we do not find any merit in this application which is, accordingly, dismissed.narayan roy, j.15. i agree.

Judgment:

S.B. Sinha, J.

1. The petitioner, in this case, has asked for issuance of or in the nature of mandamus directing the respondents to appoint him as a Sepoy in the Bihar Military Police Service.

2. The fact of the matter lies in a narrow compass. An advertisement was issued on 8-5-1993 inviting applications for appointment of 95 Sepoys. The last date for submitting the applications was 10-6-1993. The petitioner submitted his application on 10-6-1993 and he was directed to appear before the Selection Board. According to the petitioner, he has already been selected but he has not been appointed on the ground that he was not aged 19 years on 1-6-1993.

3. Mr. Upendra Prasad, learned Counsel for the petitioner, drew our attention to Rule 661(b) and 663 of the Bihar Police Manual and submitted on the basis thereof that in terms of the said rules persons in between the age of 19-27 years are to be selected. Learned Counsel submitted that as on the date of selection of the petitioner, he crossed 19 years of age, there was no impediment in his appointment.

Learned Counsel further submitted that in any event the respondents have the power to relax the age limit and in that view of the matter, as the petitioner was called for interview and was also directed to appear in further tests, the age bar would be deemed to have been relaxed. It was stated that in any event the appointment of the petitioner shall be governed by Rule 10 of the Bihar Military Police Manual which provides for appointment of a person who is aged 18 years and in respect of Nepalis the age of appointment is 16 years. Learned Counsel further submitted that in view of the fact that the appointment of the petitioner was to be governed by the Bihar Military Police Manual, the impugned advertisement must be held to be bad in law and in terms of the statutory provisions, the petitioner is entitled to be appointed.

4. In this case a counter-affidavit has been filed on behalf of the State wherein it has been contended that the fact that the petitioner did not fulfil the criteria of appointment, was detected at later stage. It was further submitted that the Board has right to appoint a person or not to appoint. It was further stated that the Board has right to appoint any person on ground of his proficiency in particular sports or cultural field. It has further been submitted that the appointment with regard to Bihar Military Police is guided by the Police Manual and Police Order No. 202/88. It was submitted that the fixation of age-limit was mandatory in nature and in view of the advertisment in question the question of consideration of age of the candidates with reference to date of selection does not arise.

5. According to the petitioner, his date of birth is 5-6-1974. As noticed hereinbefore, the petitioner has taken contradictory and inconsistent stand inasmuch as he has contended that the provisions of Bihar Police Manual as also the Bihar Military Police Manual shall apply to his case.

6. As noticed hereinbefore Mr. Upendra Prasad has himself submitted that in the matter of appointment of the candidates in Bihar Military Police, the provisions of Bihar Military Police Manual shall apply but he himself referred to Bihar Police Manual for the purpose of contending that the autho rities have the power to relax the age-limit in terms thereof. The relevant provisions of the Bihar Police Manual namely, Rule 661(b) and Rule 663 read as follows:

66l(b): By whom appointed.-- Constables shall be appointed by District Superintendent of Police for which a list will be prepared by the Selection Board duly constituted for the purpose.

663. Selection of recruits--(a) Strong, healthy young men between the ages of 19 and 27 years and who have passed secondary i. e. matriculation examination shall be selected as recruits as far as possible

7. It is true as has been contended by Mr. Prasad that the matter relating to appointment and condition of service of Military Police is also governed by the Bihar Police Manual. Rule 9 of the Bihar and Orissa Military Police Manual provides that every recruitment shall be entitled under Section 7, Act V of 1861 in the manner prescribed by P.M. Rule 666. Rule 10 (a) provides for physical standard which reads as follows:

Except as provided below no recruit shall be enlisted in the military police companies or squadron who is under 18 or over 25 years of age, unless in the later case he has had previous service in the army or the police force. In the Gurkha companies the enlistment of boys not under the age of 16 is permitted up to a maximum of 5 per cent of the sanctioned strengh.

8. The State of Bihar appears to have taken a policy decision being police order No. 202/88 whereby and whereunder the physical standar, the age limit and other factors which are relevant for the purpose of appointment, have been laid down. The said rule also applies in the matter of recruitment of Bihar Military Police. However, in such an event, a separate selection committee is to be constituted by which the Commandant would be the Chairman. From a perusal of the aforementioned Police Order No. 202/88 it appears that the age limit fixed thereby is 19 years to 27 years.

9. The said rule also provides for the power of the State to relax the upper age limit in case of Scheduled Caste. The upper age limit would be 30 years for the Scheduled Caste and for the Scheduled Tribe, the same would be 35 years. From a perusal of the advertisment it appears that para 4 thereof provided that the age of the candidate would be in between 19 to 35 years of age as on 1-6-1993. The said advertisement, as noticed hereinbefore, was issued on 8-5-1993. The petitioner did not question the said advertisment and filed an application for appointment and appeared before the Selection Board.

10. In this view of the matter, in our opinion, the petitioner cannot be permitted to question the conditions laid down in the said advertisment for the first time in this writ application as it is not the case of the petitioner that he did so before the authorities concerned. The petitioner has admitted that as on 1-6-1993 he did not complete 19 years of age. Mr. Prasad is also not correct in contending that either under the Bihar Police Manual or the Bihar Military Police Manual or under the aforementioned Police Order No. 202/88 any provision exists for the relaxation of the lower age limit as is the specific provision for the relaxation of upper age limit. The power of relaxation so far lower age limit is concered, the same must be held to be excluded by necessary implication.

11. Further, as noticed hereinbefore, the procedure for appointment etc. are to be governed by Rule 666 of Bihar Police Manual. It is not the case of the petitioner nor has he questioned the averments made in the counter-affidavit that the terms and conditions of appointment are governed by the aforementioned Police Order No. 202/88 as contained in Annexure-A to the counter-affidavit.

12. Further, from the advertisement in question it does not appear that the appointments were made for Gurkha Regiment although applications were invited from the applicants who were Gurkhas of Indian Origin.

13. Further, nothing has been pointed out before us that fixation of cut off date i.e. 1-6-1993 is arbitrary or unreasonable. The last date for submis sion of the applications was 10-6-1993. In our opinion, the cut-off date mentioned in the said advertisment cannot be said to be wholly arbitrary or unreasonable.

14. For the reasons aforementioned, we do not find any merit in this application which is, accordingly, dismissed.

Narayan Roy, J.

15. I agree.