Binod Kr Mahto alias Binod Kumar Mahto v. The Union Of India

HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 06-08-2013 We have heard counsel for the petitioner and the respondents. The petitioner assails order dated 23.04.2013 passed by the Central Administrative Tribunal, Patna Bench, in O.A. No. 118 of 2012, dismissing his application. The respondents published an advertisement in June 2009 for 171 posts of Telecom Technical Assistants. The eligibility criteria inter alia was age between 18 to 27 years on the last day for submitting applications i.e. 20.07.2009 for General Category candidates, relaxable by three years for OBC candidates to which category the petitioner belongs. The examination was held on 22.11.2009. The selection process was cancelled in November 2011 without publication of results. A Patna High Court CWJC No.13547 of 2013 (2) dt.06-08-2013 advertisement was published on 13.05.2011. The last date for submission of applications was 15.06.2011. The eligibility criteria with regard to age remained as 20.07.2009. The respondents opined that it would shut out from consideration such candidates who may have subsequently acquired the age eligibility. The respondents then published fresh advertisement on 14.09.2011 and the cut off date was fixed as 31.10.2011. The advertisement provided that those who had applied in response to advertisement dated 13.05.2011 need not apply afresh. The petitioner thus became overage as per the fresh cut off date. Learned counsel for the petitioner submitted that he has been arbitrarily wronged for no fault of his. The original advertisement and selection process was cancelled for no fault of the petitioner. The fresh advertisement dated 13.05.2011 was again cancelled for reasons attributable to the respondents alone. The fresh advertisement dated 14.09.2011 wrongly modified the cut off date from 20.07.2009 to 31.10.2011. The respondents were acting arbitrarily in seeking to take advantage of their own wrongs in repeatedly cancelling the examination and advertisements. The petitioner was permitted by an interim order dated 13.02.2012 to appear at the examination pursuant to the advertisement dated

14.09.2011. There is no justification not to direct publication of his results. Patna High Court CWJC No.13547 of 2013 (2) dt.06-08-2013 Counsel for the respondents has opposed the application supporting the order of the Tribunal. The Tribunal has opined advertisement and the consequent examination held did not culminate in completion of the selection process. It does not appear that the petitioner challenged the cancellation of the selection process. Even otherwise he had only a right to be considered and it remains in the domain of the employer to cancel the selection process if it is not otherwise done arbitrarily. The fresh advertisement published on 13.05.2011 led the respondents to opine that those who may become eligible in the meantime were also required to be considered and the age criteria could not be fixed as on 20.07.2009 provided for in the first advertisement as it would shut out from consideration whole new work force eligible to be considered. We find no infirmity in the same. If the employer decided to fix the cut off date for eligibility, it is their prerogative, keeping in mind the nature of the work, the utility of the personnel required which fall within the executive domain. Except for urging that the change of the age criteria under the advertisement dated 14.09.2011 was arbitrary, nothing has been placed before us to demonstrate any mala fides or grounds for arbitrariness on part of the respondents in doing so. The Tribunal has rightly opined that the criterias Patna High Court CWJC No.13547 of 2013 (2) dt.06-08-2013 for selection including age of eligibility is for the employer to define and not for the Court to impose its views. The Tribunal has further rightly opined that if the selection process had not been completed, no right accrued to the petitioner. If on account of delays in the selection process, the petitioner became barred by age, it may have been unfortunate but there were many others similarly situated in the same boat. Our jurisdiction in judicial review is primarily confined to errors in the decision making process. If the view taken by the Tribunal is a reasonable possible view, it shall not be proper exercise of jurisdiction by us to interfere with the order merely because we may have the power to do so. The mere delay by passage of time in completing the selection process cannot be a ground for the petitioner to seek relaxation of the age criteria by asking the Court to modify the advertisement. Considering the issue it was observed in (1997) 6 SCC 614 (Ami Lal Bhat (Dr) v. State of Rajasthan) as follows:- `` 11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be Patna High Court CWJC No.13547 of 2013 (2) dt.06-08-2013 exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended.” The situation may be unfortunate petitioner, but we do not find it possible to grant in any relief in the law. The application is dismissed. Md. Ibrarul/- (Navin Sinha, J) (Vikash Jain, J)