IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.888 of 2007 THE STATE OF BIHAR & ORS Versus ARUN KUMAR LAL & ORS ----------- For the appellants: Mr. Lalit Kishore, AAG – III Mr. S. Bharti For the respondents : Mr. Ganesh Prasad Singh, Sr. Advocate Mr. Manish Kumar For the intervenor : Mr. Ajay --- P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Kishore K. Mandal --- Dated, the 17th September, 2008 The single judge allowed the writ petition filed by the present respondents 1 to 3 by observing thus: “Having heard the learned counsels for the parties, I must first point out that so far as Bihar Jail Manual is concerned, it is not a statutory document. It has not been issued under any authority delegated to the State by any statute. It is a compilation of executive instructions issued from time to time and in several cases, it has already been held to be of non-statutory, non-binding character and the authorities, if situation so demands, can deviate from the provisions therein. Here, not only the deviation was there but the same was not protested to by the State till the selection process itself was completed. It is equally well settled that once certain terms and conditions are laid down in the advertisement seeking applications for employment then the terms and conditions mentioned in the advertisement are the rules for the selection process. Rules once framed and the process started cannot be changed midway. This, in my view, is a settled principle of law. As such the only option left is to hold that if petitioners were otherwise eligible and found fit to be appointed, they cannot be disqualified on ground of having a height less than 5‟ 6” but more than 5‟4”.” 2 2. That in the advertisement issued by the Bihar Public Service Commission (for short, „BPSC') for selection to the post of Assistant Jailors, the minimum height requirement of 5‟4” was prescribed is not in dispute. That in Bihar Jail Manual, the minimum height prescribed for the post of Assistant Jailor is 5‟6” is also not in dispute. 3. The single judge held that if on the basis of eligibility prescribed in the advertisement, the petitioners have been found fit to be appointed, they cannot be disqualified on the ground of having height less than 5‟6” but more than 5‟4”. 4. Mr. Lalit Kishore, Additional Advocate General – III strenuously urged that since Bihar Jail Manual specifies minimum height of 5‟6” for the post of Assistant Jailor, the height specification prescribed therein must prevail even if in the advertisement the minimum height requirement mentioned was 5‟4”. He would submit that in case of conflict in respect of minimum height requirement in the Bihar Jail Manual and the advertisement, Bihar Jail Manual must prevail. 5. We may notice here that by our order dated 31st July, 2008, we wanted the Secretary, Department of Home (Special), Bihar, Patna to file an affidavit on the following aspects: (i) How many times the advertisements have been issued by the Bihar Public Service Commission for filling the posts of Assistant Jailors since 1974? (ii) What was the minimum height prescribed in such 3 advertisement (since 1974) for filling the post of Assistant Jailors? (iii) Whether the candidates having height of 5‟4” and less than 5‟6” have been appointed to the post of Assistant Jailors prior to the year 1999 or not? And if yes, how many. (iv) How many candidates have been appointed as Assistant Jailors having age of more than 25 years in the last thirty years? 6. In response thereto, Mr. Afzal Amanullah, Principal Secretary, Department of Home Affairs, Government of Bihar, has filed his affidavit. He has stated that during the period from 1974 to 1999, five advertisements in the years 1974, 1976, 1983, 1987 and 1999, were issued. He has further stated that the Bihar Public Service Commission has made available copies of the advertisements issued for appointment of Assistant Jailors in the years 1987 and 1999 and in both these advertisements the minimum height requirement is 5‟4” for men and 5‟2” for women. He has submitted that the copies of the advertisement of the years 1974, 1976 and 1983 have not been made available. He has also admitted in his affidavit that five persons, whose height is less than 5‟6”, have been working as Assistant Jailors. This has been found out from the service record presently available. Some of the Assistant Jailors, who were appointed pursuant to the aforesaid advertisement have been transferred to the state of Jharkhand, whose service records are not available. It is also admitted in his affidavit that in the advertisement of 1987, the maximum age limit has been mentioned as 30 years for unreserved category and 33 years for Scheduled Castes and Scheduled Tribes and in the advertisement of 1999, the 4 maximum age limit has been mentioned as 35 years for unreserved, 37 years for Backward Class and Most Backward Class, 38 years for women and 40 years for Scheduled Castes/ Scheduled Tribes. 7. As a matter of fact, from the affidavit filed by the Principal Secretary, Department of Home Affairs, Government of Bihar, it is apparent that in the advertisements issued by the Bihar Public Service Commission for filling up the posts of Jailors, the minimum height requirement mentioned was 5‟4” and , in fact, the candidates having the height of 5‟4” and above but less than 5‟6” have been appointed. It is true that the minimum height requirement of 5‟6” is given in Bihar Jail Manual. However, Jail Manual has no statutory force as it is only a compilation of executive instructions. The height requirement of Assistant Jailors mentioned in Jail Manual is seen to have been given go-by and was never intended to be followed as is clearly seen from the advertisements issued by the Bihar Public Service Commission from time to time wherein the minimum height requirement mentioned is 5‟4”. 8. Seen thus, consideration of the matter by the single judge cannot be faulted. 9. Letters patent appeal does not deserve to be admitted. It is dismissed in limine. R. M. Lodha, CJ. Neyaz/ Kishore K. Mandal, J. 5 Neyaz/