IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3560 of 2022
Dr. Ashok Kumar Singh, son of Raghunandan Singh, Resident of DB
– –
169, RAC Campus, Birsa Agricultural University, Kanke, P.O. Kanke,
–
P.S. Gonda, District Ranchi, Jharkhand.
– –
… Petitioner
V E R S U S
1. State of Jharkhand
2. The Vice Chancellor, Birsa Agricultural University, Kanke, P.O. Kanke,
P.S. Gonda, Dist. Ranchi, Jharkhand
3. The Director, Birsa Agricultural University, Kanke, P.O. Kanke, P.S.
Gonda, Dist. Ranchi, Jharkhand
4. Dean, Faculty of Forestry, Birsa Agricultural University, Kanke, P.O.
Kanke, P.S. Gonda, Dist. Ranchi, Jharkhand
… … Respondents.
CORAM: HON'BLE DR. JUSTICE S. N. PATHAK
For the Petitioner : Mr. Saurav Arun, Advocate
For the Respondents : Mr. Anshuman Kumar, AC to SC (L & C)-II
For the BAU : Mr. Abdul Allam, Sr. Advocate
Ms. Asfia Sultana, Advocate
Mr. Faisal Allam, Advocate
Ms. Sushmita Kumari, Advocate
12/20.12.2024 Heard the parties.
PRAYER
2. The petitioner has prayed for quashing of Advertisement dated
10.02.2022 (Annexure-5). Petitioner has further prayed for a direction upon
the respondents to pay salary from 15.12.2021 to 03.02.2022 i.e. for the
period when he was allowed to work and continued as per the instruction of
Dean, Faculty of Forestry, Birsa Agricultural University. Petitioner has also
prayed for a direction upon the respondents to allow him to continue in
service by giving extension and further to allow him to join the post.
FACTS OF THE CASE
3. According to the petitioner, he was appointed on 15.12.2020 after
following due process of law in terms of advertisement/walk-in-interview
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on contract basis for the post of Assistant Professor-cum-Junior Scientist.
Petitioner made his joining on 15.12.2020 and the same was duly accepted.
Thereafter, pursuant to letter dated 26.08.2021, the service of the petitioner
was extended for a period of six months. After completion of extended
period, petitioner was allowed to work till 03.02.2022 by verbal order of
the Dean in expectation that his extension of contract will be continued.
Thereafter, a fresh Advertisement dated 10.02.2022 was published for
walk-in-interview.
4. It is case of the petitioner that though he stood first in the interview
but was not given appointment stating therein that on the date of interview,
he completed 50 years as stated by Head of the Department verbally
without issuance of any letter. Being aggrieved, petitioner filed
representations but no heed was paid. Being aggrieved, petitioner has been
constrained to knock door of this Court.
ARGUMENTS ON BEHALF OF THE PETITIONER
5. Mr. Saurav Arun, learned counsel appearing on behalf of the petitioner
submits that from the letter dated 28.08.2017, it would be evident that due
to exigency of work, the persons working on contractual basis, will be
given age relaxation till regular appointments are made. Learned counsel
further argues that the petitioner has not crossed the maximum age limit in
view of the fact that the date of birth of the petitioner is 25.09.1971 and as
per the advertisement dated 10.02.2022, the required maximum age is 50
years as on 01.08.2021. Thus, petitioner was only 49 year 10 months 6 days
on the cut-off date fixed by the University and thus, he has not crossed the
upper age limit.
6. Learned counsel further argues that one Mrs. Oindrilla Basu was
appointed as an Assistant Professor cum Jr. Scientist in the department of
Natural Resource Management, Faculty of Forestry but she did not join the
post. Learned counsel further argues that the petitioner name figured at
’s
the top of the list of the selected candidate whereas said Mrs. Oindrilla
nd
Basu was in the 2 position.
7. Mr. Saurav Arun, learned counsel for the petitioner in reply to the
argument made by the university contended that even if it is a mistake the
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University ought to have come out with the corrigendum for rectification of
its mistake but the same has never been done and hence petitioner applied
in terms of Advertisement dated 10.02.2022 where it has categorically been
mentioned that the maximum upper age limit should be 50 years as on the
date 01.08.2021. Admittedly, petitioner did not cross the upper age limit on
the prescribed date.
8. Mr. Saurav Arun, learned counsel representing petitioner further
argues that altogether four counter affidavits have been filed but the the
plea of mistake committed by the University is being raised for the 1st time
and the University is trying to supplement the reason for the 1st time as per
the last counter affidavit which is against the spirit of judgement passed by
Court i.e., in case of the Mohinder Singh Gill and
the Hon’ble Apex
others versus The Chief Election Commissioner, New Delhi reported in
AIR1978(SC)851. Learned counsel for the petitioner heavily relies upon
the judgement reported in 2007(4)JCR443 in which it has been held that
due to latches/wrong done on the part of the state, the delinquent should not
be made to suffer and admittedly, in the present case no corrigendum has
ever been issued, petitioner for the first time came to know about such
mistake from the counter affidavit. Learned counsel further relies upon the
judgement reported in 2007 (13)SCC290 in which
the Hon’ble Apex Court
has held that the person concerned should be allowed to continue in the
service till regular appointments are made.
ARGUMENTS ON BEHALF OF THE UNIVERSITY:
9. Mr. Abdul Allam, learned Senior counsel representing Birsa
Agriculture University submits that the petitioner has already crossed the
upper age limits prescribed by the University. He can apply for the direct
recruitment conducted through JPSC. Learned Sr. Counsel representing the
University submits that by mistake in the advertisement cut-off date was
mentioned as 01.08.2021 though the advertisement was floated on
10.02.2022 and in the note part, it was categorically stated that the upper
age limit shall be 50 years on the 1st day of August of the Advertisement
year. Learned Sr. Counsel further argues that the mistake can be rectified at
any stage.
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10. Mr. Abdul Allam, learned Senior counsel representing Birsa
Agriculture University earlier contended that Mrs. Oindrilla Basu belongs
to reserved category when the order dated 24.10.2024 was passed whereas
in the third supplementary counter affidavit it has been accepted that she
did not belong to reserved category. Now, the only ground taken by the
University is that the petitioner has crossed 50 years of age.
FINDINGS OF THE COURT
11. Having heard counsel for the parties at length across the bar, on
thoughtful consideration this Court is of the considered view that case of
the petitioner needs consideration for the following facts and reasons:
(i) Admittedly petitioner was initially appointed on contractual basis
vide office order no. 1898, dated 08.12.2020 for a period of six
months. The contractual period of the petitioner was extended for a
period of six months vide office order no. 1316, dated 26.08.2021, as
provided in para 14.5 of the Statute. Since extension was only for a
period of six months, as per provisions made in para 14.5 of the
Statute, further extension could not be given and therefore, the
University vide memo no. 3399, dated 10.02.2022, floated a fresh
advertisement for appointment vide Advertisement No. BAU (VC)
05/2022, for walk-in-interview. As per terms and conditions of the
advertisement as contained in Annexure-5 to the writ petition, the
maximum age as on 01.08.2021 was to be 50 years. Thereafter, in the
Note, it has been mentioned that The upper age limit shall be 50
“
st
years on the 1 day of August in the Advertisement year relaxable up
The
to 5 years for SC/ST and 3 years for OBC category candidates”.
date of birth of the petitioner is 25.09.1971 and as per calculation
made by the respondents, the petitioner was over age on the date
prescribed and as such his candidature was rejected. From perusal of
merit list prepared by the respondents, which is Annexure-A to the
Supplementary Counter Affidavit dated 04.12.2024, it appears that
petitioner’s name was on the top of the list having secured 70.74
marks and next to the petitioner was Mrs. Oindrilla Basu who had
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secured 62.80 marks. As per respondents, since petitioner was over
age, the candidate next to the petitioner was considered for
appointment. From the documents brought on record it appears that
two interpretations are there one shows date of birth as on
–
08.01.2021 should be 50 years whereas Note says the upper age limit
st
should be 50 years as on 1 day of August in the Advertisement year
whereas it ought to have been 01.08.2022. Accepting contention of
the respondents Birsa Agricultural University, this Court is of the
–
view that it was incumbent upon the respondents Birsa Agricultural
–
University to come up with the corrigendum giving clarification
regarding upper age limit.
(ii) The petitioner was initially appointed on 08.12.2020 and thereafter
extension for a period of six months was given to him. Petitioner
continued to work till 26.08.2021. Petitioner has thrown challenge to
the advertisement also, though he had participated in the process of
recruitment and was placed at serial no. 1 in the merit list.
(iii) The issue to be decided in the instant writ petition is:
“Whether it was open for the petitioner to challenge the
advertisement after participating in the selection process?”
The issue fell for consideration before the Hon’ble Apex Court in the
case of Dr. (Major) Meeta Sahai Vs. State of Bihar and others
reported in (2019) 20 SCC 17. It has been held therein that normally
a candidate cannot challenge selection process after participating in
process. It was however, held that the said principle is differentiated
insofar as candidate by agreeing to participate in selection process
only accepts prescribed procedure and not illegality in it. It was
further held that where candidate alleges misconstruction of
statutory rules and discriminating consequences arising therefrom,
same cannot be condoned merely because candidate has partaken in
it because constitutional scheme is sacrosanct and its violation
impermissible. Besides, it is possible that candidate may not have
locus to assail incurable illegality or derogation of provision of
Constitution, unless he/she participates in selection process.
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The University never ever issued any corrigendum clarifying
the maximum age on the date of walk-in-interview. The clarification
has been made only by way of counter affidavit and after selection
process is over. Whether such clarification can be accepted by the
Court, fell for consideration before the Hon’ble Apex Court in the
case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji,
reported in AIR 1952 SC 16, has held in para 9 as under:-
“9. An attempt was made by referring to the Commissioner’s
affidavit to show that this was really an order of cancellation
made by him and that the order was his order and not that of
Government. We are clear that public orders, publicly made,
in exercise of a statutory authority cannot be construed in the
light of explanations subsequently given by the officer making
the order of what he meant, or of what was in his mind or
what he intended to do. Public orders made by public
authorities are meant to have public effect and are intended
to affect the actions and conduct of those to whom they are
addressed and must be construed objectively with reference
to the language used in the order itself.”
Further, the same view has been reiterated by the Hon’ble
Apex Court in the case of Mohinder Singh Gill Vrs. Chief Election
Commissioner, reported in (1978) 1 SCC 405, paragraph-8 of which
reads as under:-
The second equally relevant matter is that when a
“8.
statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in
the shape of affidavit or otherwise. Otherwise, an order bad in
the beginning may, by the time it comes to court on account of
a challenge, get validated by additional grounds later
brought, out. We may here draw attention to the observations
of Bose J. in Gordhandas Bhanji.
Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what he
meant, or of what was in his mind, or what he intended to, do.
Public orders made by public authorities are meant to have
public effect and are intended to affect the actions and
conduct of those to whom they are addressed and must be
construed objectively with reference to the language used in
the order itself.
Orders are not like old wine becoming better as they
grow older.”
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Admittedly, the clarification has been made in the counter
affidavit and no corrigendum to this effect has been issued earlier
which shows that the respondent authorities have tried to improve
their case by supplementing the facts, which was never part of the
advertisement and it has only come for the first time in the
supplementary counter affidavit.
(iv) The appointments were made purely on contractual basis. Petitioner
was earlier appointed and continued after being given extension for
six months. If at all the respondents wanted to make fresh
appointment, it was open for them to come up with regular
appointment. In the celebrated Judgment of the Hon’ble Apex Court
in the case of Hargurpratap Singh Vs. State of Punjab and others
reported in (2007) 13 SCC 292 it has been held at Para-3 as under:
We have carefully looked into the judgment of the
“3.
High Court and other pleadings that have been put forth
before this Court. It is clear that though the appellants may
not be entitled to regular appointment as such it cannot be
said that they will not be entitled to the minimum of the pay
scale nor that they should not be continued till regular
incumbents are appointed. The course adopted by the High
Court is to displace one ad hoc arrangement by another ad
hoc arrangement which is not at all appropriate for these
persons who have gained experience which will be more
beneficial and useful to the colleges concerned rather than
to appoint persons afresh on ad hoc basis. Therefore, we set
aside the orders made by the High Court to the extent the
same deny the claim of the appellants of minimum pay scale
and continuation in service till regular incumbents are
appointed. We direct that they shall be continued in service
till regular appointments are made on minimum of the pay
scale. The appeals shall stand allowed in part accordingly.”
The similar view as reiterated by the Hon’ble Apex Court in the case
of State of Punjab and others Vs. Supreet Rajpal and another
reported in (2007) 13 SCC 290.
(v) From the records it appears that the petitioner had secured highest
marks and was at serial no. 1, only because of misinterpretation of
the terms and conditions of the advertisement, he has been
eliminated. The stand of the respondents that the candidate at Serial
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No. 2 was appointed as she belongs to the reserved category and
further clarified that no appointment have been made and
inadvertently submission has been advanced by the University, the
same is not acceptable to this Court and the same shows callous
approach of the University. At the first extent, the University has
tried to misguide this Court by giving wrong facts and later on when
queries were made, it was found that wrong submissions based on
wrong instruction has been made before this Court.
(vi) There is no dispute that the appointment was purely on contractual
basis, it would be apt to direct the respondents to allow the petitioner
to continue on the said post. However, it is open to the University to
come out with regular appointment by floating fresh advertisement
and as and when regular appointments are made, petitioner may also
be allowed to participate subject to fulfilment of criteria and the
appointment be made as per terms and conditions and as per the
merit list that may be prepared on the basis of marks obtained by the
individual candidates.
12. As a Sequitur to the aforesaid observation, rules, guidelines, legal
proposition and judicial pronouncements, the impugned Advertisement
dated 10.02.2022 (Annexure-5) is hereby quashed and set aside. The
respondents are directed to allow the petitioner to continue on the said post
till regular appointments are made after issuance of fresh advertisement and
as per the observations made hereinabove. The respondents are further
directed to pay salary for the periods from 15.12.2021 to 03.02.2022 i.e. for
the period when he was allowed to work and continued as per the
instruction of Dean, Faculty of Forestry, Birsa Agricultural University, if he
has worked.
13. With the aforementioned observations and directions, the writ petition
stands allowed.
(Dr. S.N. Pathak, J.)
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