Case: RAKESH KUMAR Vs. THE STATE OF BIHAR &amp; ORS

It is open to the Court to grant extension and extension was granted by communication dated 20.02.2020 to join by April, 2020. The question that appears for our consideration is whether this is a case where, in the absence of a statutory prescription, in the circumstances which are projected to exist, the respondent-High Court should have permitted the appellant to join. The delay beyond April, 2020, consists of seven weeks. It is not a case where there is a complete dearth of any explanation by the candidate. According to the appellant, the appellant was in Nagpur at the time when lockdown No. 1 was declared. The fact that COVID 19 was prevalent in the country and travel restrictions were put in place is a matter of which the Court can take judicial notice. The appellant has purported to produce material along with the representations is another aspect which cannot be ignored. The impugned order insofar as it proceeds on the basis that no material was produced along with the representation does not appear to be correct. 18. It is no doubt true that there is no absolute right with the candidate to insist that he should be permitted to join beyond the date. We reiterate that this would be so even in the absence of statutory rule. We are dealing with services of judicial officer who is expected to undergo training. In fact, there are certain deadlines which have been fixed by this Court in litigation relating to appointment/recruitment of judicial officers. So, it is not as if we can describe the orders of the High Court refusing to permit the appellant to join as a perverse or totally illegal decision. 19. Though, it is true, as noticed, that there is no absolute right, we cannot also be oblivious to certain facts. 20. There is non-advertence to relevant material produced by the appellant. The appellant admittedly belongs to a marginalized section of society. The High Court permitted extension to the appellant to join till April, 2020, on the basis of the request made by the appellant which included his request pointing out the need to have a surgery of his father conducted in Chennai and the other issue relating to the pregnancy of his wife. While it is true that, again, we are not oblivious of the fact that first representation made by the appellant is on 08.06.2020, even though deadline set by the High Court was that the appellant should join in April, 2020, we cannot ignore the reality, namely, that restrictions imposed consequent upon COVID 19 enveloping the nation were rather severe and stringent. Travel both by Air and by train was prohibited. It is not in dispute that flights were not permitted till 25.05.2020. It is not disputed that there were restrictions in the matter of travel by train and priority was given to migrants. Likewise, it is not in the region of dispute that unlock 1.0 came into effect from 01.06.2020. There were other restrictions in the form of pass to be secured for traveling outside the district where the person was located. 21. We would think this is not a case where the appellant was taking aid of a false case. There was considerable confusion also about what a person could do and what a person could not do during the time of the lockdown. It was an unprecedented situation which affected the nation to which Nagpur was certainly not impervious. We would think that, in the facts of this case, besides noticing also the fact that the appellant hailing from a marginalized community has been recruited and has been appointed to the judicial services of the State, we should take a view which conduces to justice in a larger sense and for his entry and for his continuation in service. This is apart from the claim being supported with material which was placed but apparently not considered. 22. The question would, however, then arises as to what would be the consequence of allowing the appellant to join and continue in service. 23. Mr. Shoeb Alam, learned counsel for the appellant, on the previous date of hearing, pointed out that the appellant will file an undertaking that he would not claim right to seniority except upon joining and he will undergo fresh training with the next batch. 24. The written undertaking on affidavit is today before us. Therein, the appellant has agreed to waive his claim to seniority and backwages: UNDERTAKING ON AFFIDAVIT I, Rakesh Kumar, aged about 33 years (Male), S/o Shri Chandra Sekhar Paswan, R/o Village -Kashipur, P.S. - Samastipur Town, District-Samastipur (Bihar), presently at Samastipur do hereby solemnly swear and affirm as under: 1. I state that I am the Petitioner in the accompanying Special Leave Petition. 2. I state that in the event an order is passed by this Honble Court to reinstate my service as Civil Judge (Junior Division) by setting aside or otherwise interfering with the impugned Order dated 26-10-2021 passed by the Honble High Court of Judicature at Patna in CWJC No. NO.3835 of 2021, I undertake as under: a. That I waive my claim for seniority and back wages from the date I offered to join as Civil Judge (Junior Division) at Biraul, Darbhanga from i.e. 08-06-2020 till the time of actual joining in service. b. That I agree to undergo training with the next available batch. c. That I will not claim any benefit contrary to the present undertaking at any time in the future. 3. That I am also ready and willing to undergo training with the next batch of recruits. 25. We are also persuaded in this case to interfere with the impugned order and grant relief to the appellant having regard to the terms of the undertaking which has been reduced to writing by the appellant and what is more contained in the affidavit made by the appellant which would appear to show his willingness and readiness to serve as a judicial officer.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. We would notice in the first place that there is no statutory provision which declares or commands that beyond a certain point of time, a selected candidate cannot be permitted to join. There is no provision pressed before us which is in the form of a statutory prescription. In other words, there is no law which would support the cancellation of the candidature of the selected candidate if he seeks to join beyond a particular point of time.17. Undoubtedly, the matter appears to be governed by the terms of the notification. It is open to the Court to grant extension and extension was granted by communication dated 20.02.2020 to join by April, 2020. The question that appears for our consideration is whether this is a case where, in the absence of a statutory prescription, in the circumstances which are projected to exist, the respondent-High Court should have permitted the appellant to join. The delay beyond April, 2020, consists of seven weeks. It is not a case where there is a complete dearth of any explanation by the candidate. According to the appellant, the appellant was in Nagpur at the time when lockdown No. 1 was declared. The fact that COVID 19 was prevalent in the country and travel restrictions were put in place is a matter of which the Court can take judicial notice. The appellant has purported to produce material along with the representations is another aspect which cannot be ignored. The impugned order insofar as it proceeds on the basis that no material was produced along with the representation does not appear to be correct.18. It is no doubt true that there is no absolute right with the candidate to insist that he should be permitted to join beyond the date. We reiterate that this would be so even in the absence of statutory rule. We are dealing with services of judicial officer who is expected to undergo training. In fact, there are certain deadlines which have been fixed by this Court in litigation relating to appointment/recruitment of judicial officers. So, it is not as if we can describe the orders of the High Court refusing to permit the appellant to join as a perverse or totally illegal decision.19. Though, it is true, as noticed, that there is no absolute right, we cannot also be oblivious to certain facts.20. There is non-advertence to relevant material produced by the appellant. The appellant admittedly belongs to a marginalized section of society. The High Court permitted extension to the appellant to join till April, 2020, on the basis of the request made by the appellant which included his request pointing out the need to have a surgery of his father conducted in Chennai and the other issue relating to the pregnancy of his wife. While it is true that, again, we are not oblivious of the fact that first representation made by the appellant is on 08.06.2020, even though deadline set by the High Court was that the appellant should join in April, 2020, we cannot ignore the reality, namely, that restrictions imposed consequent upon COVID 19 enveloping the nation were rather severe and stringent. Travel both by Air and by train was prohibited. It is not in dispute that flights were not permitted till 25.05.2020. It is not disputed that there were restrictions in the matter of travel by train and priority was given to migrants. Likewise, it is not in the region of dispute that unlock 1.0 came into effect from 01.06.2020. There were other restrictions in the form of pass to be secured for traveling outside the district where the person was located.21. We would think this is not a case where the appellant was taking aid of a false case. There was considerable confusion also about what a person could do and what a person could not do during the time of the lockdown. It was an unprecedented situation which affected the nation to which Nagpur was certainly not impervious. We would think that, in the facts of this case, besides noticing also the fact that the appellant hailing from a marginalized community has been recruited and has been appointed to the judicial services of the State, we should take a view which conduces to justice in a larger sense and for his entry and for his continuation in service. This is apart from the claim being supported with material which was placed but apparently not considered.25. We are also persuaded in this case to interfere with the impugned order and grant relief to the appellant having regard to the terms of the undertaking which has been reduced to writing by the appellant and what is more contained in the affidavit made by the appellant which would appear to show his willingness and readiness to serve as a judicial officer.