Sk. Akhtarul Islam vs D.I. of Police. and Another

A.S. Naidu, J.—The Petitioner is a poor man, belonging to the down trodden class of the society. He is neither litigation minded nor litigation is his hobby, but then, circumstances have compelled him to enter into litigation, which he is constrained to pursue willy-nilly. He has approached the portals of this Court being aggrieved by the arbitrary action of the Opp. Parties, who have disqualified him in course of the selection for the post of constable in General Railway Police, Cuttack.

According to Learned Counsel for the Petitioner, in response to an advertisement issued in daily news paper inviting applications from eligible candidates, the Petitioner applied in prescribed proforma for the post of constable on 18.8.2008 After due scrutiny of the application form & on being satisfied that the Petitioner satisfies all the eligibility criteria, his application was accepted & he was called upon to appear at the physical test on 1.9.2008. After the physical test, the Opp. Parties without any rhyme or reason withdrew the identity card & informed him that his form has been rejected. Being aggrieved, the Petitioner approached the Public Relation Officer-cum-Superintendent of Railway Police & wanted to know the reasons for disqualifying him. The Public Relation Officer informed the Petitioner that as he had committed a mistake in calculation of his age & furnished wrong particulars in the application form, he was disqualified. The said fact was intimated to the Petitioner by letter dated 21.10.2008 (Annexure-2). The relevant portion of the letter reads as follows:

In this connection, I am to inform you that you have been deprived of from further test of recruitment on 8.9.2008 due to wrong calculation of your age on your application form

The said decision is assailed in this Writ Petition. It is submitted that as per the advertisement the age of a candidate should not be less than 18 years & more than 25 years as on 1.1.2008. The date of birth of the Petitioner as per the matriculation certificate was 5.7.1985. Thus, his age as on 1.1.2008 was 22 years, 5 months & 27 days. It appears that against Col. No. 6 of the application he had written his age as on 1.1.2008 to be 22 years 5 months & 27 days. Thus, according to the Petitioner, he was within the age prescribed in the advertisement had committed no mistake nor furnished any Wrong particulars & as such, disqualifying him on that ground was not justified.

After receiving notice, counter affidavit has been filed by the Superintendent of Railway Police taking a stand that during the scrutiny it was found that the Petitioner against Col. No. 6 of the application form, reflected his age to be 22 years, 5 months & 27 days, but on actual calculation it was found that his age was 22 years 5 months & 26 days. In view of the aforesaid anomaly, the Superintendent of Railway Police disqualified the Petitioner to appear the rest of the tests.

In course of hearing, Learned Counsel for the Petitioner submitted that there is no dispute that the date of birth of the Petitioner was 5.71985 It is also not disputed that the prescribed age of a candidate should be more than 18 years & less than 25 years as on 1.1.2008. The age of the Petitioner on calculation comes to 22 years, 5 months & 27 days. Thus, he is within the age limit prescribed.

The sole ground for rejection of the application is that the Petitioner had wrongly reflected his age to be 22 years, 5 months 27 days in stead of 26 days While disputing the said fact, in the alternative, it is submitted that the difference of one day in calculation of age, does not affect the merits of the case & on such a mistake on which the application should not have been rejected.

The Petitioner, as stated earlier, belongs to the down trodden class of the society. He is not a very qualified person. The required qualification for the post is only HSC Examination passed. Thus, rejecting his application only because there is a mistake in the calculation of his age to the extent of only one day, appears to be unjust & unreasonable & arbitrary.

In course of hearing, Learned Counsel for the State, however, submitted that in the advertisement there is a clause that if any of the materials/particulars furnished in the application form are found to be not correct, then the application was liable to be rejected. But then, the said clause cannot be attracted to the case in hand. In fact, the mistake in calculation of the age by one day appears to be an inadvertent one & not deliberate. Even otherwise, by such mistake, the Petitioner does not gain anything. Thus, we find that the action of the authorities in rejecting the application of the Petitioner was not justified.

After hearing Learned Counsel for the parties, to satisfy our curiosity, we made a calculation of ourselves. As it appears, there is no dispute with regard to the years & months of the Petitioner''s age. The only controversy is with regard to number of days Admittedly, the Petitioner was born on 5.7.1985. Month of July carries 31 days. If the day on which the Petitioner said to have born is taken into calculation, it appears, his age will be 22 years, 5 months & 27 days in the alternative, if the said date is excluded, then it becomes 26 days. The time when the Petitioner was born is not available. Thus, we find absolutely no discrepancy & it appears that the Superintendent of Railway Police concerned was in haste & in an arbitrary manner rejected the application of the Petitioner. Such rejection appears to be not structured by any rational consideration.

It is well settled that where Government activity involves public element, the citizen has a right to claim rational treatment & when the State acts to the prejudice of a person, it has to be supported by legality in such functioning, arbitrariness & discrimination have no role to play. In other words, every action of the executive must be fortified by reasons & should be free from arbitrariness. That is the very essence of rule of law & its bare minimum requirement. The decision taken in an arbitrary manner contradicts the principle of legitimate expectation. The plea of legitimate expectation relates to procedural fairness in decision making process. Denial of administrative fairness is a constitutional anathema. (See- E.P. Royappa Vs. State of Tamil Nadu and Another, ).

In the case of Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, , the Apex Court observed that every action of the State or its instrumentality should not only be fair, legitimate & above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism & nepotism or arbitrariness.

In the case of State of Andhra Pradesh and Another Vs. Nalla Raja Reddy and Others, the constitutional Bench of the Apex Court observed as under:

The official arbitrariness is more subversive of doctrine of equality than the statutory discrimination In respect of a statutory discrimination one knows where he stands, but the wand of official arbitrariness can be waved in all directions Indiscriminately.

The facts & circumstances of the present case reveal that the decision taken to reject the application of the Petitioner is tainted with arbitrariness & is beyond rational thinking.

In course of hearing, this Court called upon the Learned Counsel for the State to obtain instruction as to whether any vacancies are existing On instruction it is submitted that at present there are two vacancies for the post of constable & against the above vacancies, two constables are yet to join.

In view of the aforesaid facts & circumstances & the principles of law laid down, we allow the Writ Petition & direct the Opp. Parties to adjudge the suitability of the Petitioner for appointment to the post of constable against the posts lying vacant and/or appoint him in the first post, which is going to be available in near future failing which the Petitioner, shall be entitled to a compensation of rupees one lakh, which shall be paid within 3 months or whichever is earlier.

With the aforesaid observation & direction, the Writ Petition is allowed.

B.N. Mahapatra, J.

I agree.