CALCUTTA HIGH COURT v. The Union of India & Ors.

Judgment

1. This writ application is directed against an order dated March 19, 2024, passed by the Central Administrative Tribunal Kolkata, dismissing the petitioner’s Original Application being O.A. no. 351/1021/2023 for a direction on the respondent authorities to accord necessary age relaxation to the applicant in terms of the Government Circular dated September 19,

2011. 2 Arguments on behalf of the writ petitioner:-

2. The petitioner completed his M.Ed degree in the year 2012. He belongs to unreserved category. On November 6, 2013, he was appointed on contractual basis under the “Directorate of Education”, Andaman & Nicobar Administration. Since then, till date, he is working under the Directorate of Education, teaching social science from Class VI to X.

3. A vacancy notice dated May 10, 2023, was issued by the Directorate of Education, Andaman and Nicobar Administration, for RECRUITMENT TO THE POST OF POST GRADUATE TEACHER IN DIFFERENT SUBJECTS AND MEDIUMS IN GROUP “B” NON-GAZETTED, NON-MINISTERIAL POSTS UNDER DEPARTMENT OF EDUCATION, A & N ADMINISTRATION.

5. The petitioner submitted his online application on May 30, 2023. On July 6, 2023, a provisional list of ineligible candidates for the Post of Post Graduate Teacher (History) was published by the authorities. In the remarks column, against the name of the petitioner, it was mentioned “over aged”.

6. Being aggrieved, the petitioner submitted a representation dated July 14, 2023, to the Education Secretary.

7. On July 21, 2023, a provisional marks statement with remarks in connection with the aforesaid vacancy notice was published. Against the name of the petitioner it was mentioned:- “Over Aged. Insufficient years of service as SSCT for age relaxation”. 3

8. Learned Advocate for the petitioner referred to a Circular dated September 19, 2011, issued by the Andaman & Nicobar Administration, pertaining to relaxation of upper age limit. The Circular reads as follows:- “Reference is invited to this Administration’s Circular No. 45/96-P.W. dated 06.06.2001 (Copy enclosed), wherein guidelines were issued regarding age relaxation to certain categories of employees. The matter regarding extension of similar age relaxation to Daily Rated Mazdoors (DRMs) and Contract employees, including those appointed as Sarva Shiksha Contract Teachers (SSCT), who have been working as such for prolonged periods, has been engaging the attention of the administration for quite some time past. It has been brought to the notice of the Administration that although the above categories of employees were well within initial engagement/appointment, however, over a period of time, they get over-aged when the regular vacancies become available, thus, depriving them of their chance to apply for regular appointments/compete with others. It has therefore been decided that all such candidates would be eligible to be considered for age relaxation subject to the actual period spent as SSCT/Adhoc/Contract for working in the 4 department to which they are applying. However, in the case of DRMs/Adhoc/Contractual workers the total period spent in each of the departments of this Administration shall be counted irrespective of the department where they are applying for regular appointment, provided the post is general in nature and it does not require any specific technical qualification. It goes without saying that all cases of age-relaxation are subject to the primary condition that at the time of their initial engagement as SSCT/Adhoc/Contract/DRM, these employees were not over age.”

9. Learned Advocate also referred to Order no. 2758, dated October 20, 2022, issued by the Andaman & Nicobar Administration, which reads as follows:- “The direct recruitments proposed to be conducted by various Departments of Andaman & Nicobar Administration could not be conducted in the recent past due to Covid-19 pandemic. In the meantime, many aspiring candidates have become over aged and they could not apply for direct recruitments notified and to be notified in near future. Hence, there have been requests from various quarters to relax the upper age limit for direct recruitments notified and to be notified in near future by the various Departments. 5 After careful consideration of the requests, the Hon’ble Lieutenant Governor, UT Andaman & Nicobar Islands is pleased to grant relaxation of upper age limit by two years over and above the upper age limit prescribed in the relevant Recruitment Rules, as a onetime measure, for the direct recruitment of all Group ‘B’ (Non Gazetted) posts to be notified by the Departments concerned. The relaxation shall be applicable for

the first direct recruitment to be made for each cadre by Departments concerned after issue of the order or it will be in force until 31.12.2023, whichever is earlier. The Departments have to follow the other conditions prescribed by the Finance Department before notifying the vacancies with the onetime relaxation. The age relaxation available to various categories shall also be applicable over and above the relaxation now given.”

10. Learned Advocate submitted that when the petitioner had first approached the Central Administrative Tribunal with his Original Application, the same was dismissed by the Tribunal by an order dated December 1, 2023, on the ground that at the time of initial engagement, the petitioner was more than 30 years old. Therefore, the benefit of age relaxation could not be extended to him in terms of the relevant Circulars. That order of the Tribunal was challenged by the petitioner by filing WPCT/71/2023. By a judgment and order dated January 10, 2024, a Coordinate Bench set aside the order impugned in that writ petition and 6 remanded the matter to the Tribunal for reconsideration since the Coordinate Bench found as a matter of fact that as on the date of initially applying for the job in August 2013, the petitioner was 29 years 14 days of age i.e., below 30 years.

11. Learned Advocate referred to paragraph 9 of the additional reply-in- opposition filed on behalf of the respondents before the Tribunal. The said paragraph reads as follows:- “That in terms of SSCT engagement orders and experience submitted by the applicant within the form and through online mode, he was given age relaxation in terms of the circular dated.

19.09.2011. However, his eligible services as SSCT was found to be insufficient to cover his over age by 7 years 9 months and 12 days. The security committee also found that he has not submitted documents of his engagement period as BRP and CRP within his application. Such being the position he could be allowed age relaxation of 4 years and 10 months, while he required total age relaxation of 7 years 9 months and 12 days.”

12. Learned Advocate argued that the aforesaid stand is not reflected in any of the documents rejecting the petitioner’s candidature. Further, the initial list of unsuccessful candidates mentioned only the ground “over aged”, for rejecting the application of the petitioner. The subsequent list however included an additional ground i.e, “insufficient years of service as SSCT for age relaxation.” The petitioner was never granted an opportunity to 7 deal with this additional ground for rejection of his application. Hence, the Tribunal should have allowed his original application and set aside rejection of the petitioner’s candidature by the respondent authorities.

13. Learned Counsel contended that the stand taken by the respondents in the pleadings filed before the Tribunal that the Scrutiny Committee found that the petitioner had not submitted documents of his engagement period as BRP and CRP, is an afterthought. In the lists of ineligible candidates, no such ground was mentioned. The lists of unsuccessful candidates which are challenged by the petitioner, cannot be supported by supplementing reasons in pleadings filed before the Court. In his connection learned Advocate relied on the decision of the Hon’ble Supreme Court in the case of Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi and Ors., reported at AIR 1978 SC 851.

14. Learned Advocate further submitted that the petitioner has been working under the respondent authorities on and from November 6, 2013, till date, as teacher and the authorities have in their custody all requisite documents. Hence, in any event, on the ground of non-submission of documents, the petitioner’s candidature should not have been rejected. Arguments advanced on behalf of the respondents:-

15. Learned Advocate for the respondents submitted that the petitioner is an unsuccessful candidate. The scope of interference by the writ Court in matters of public employment, at the instance of an unsuccessful candidate, is extremely limited and is restricted to cases of gross discrimination, 8 arbitrariness and violation of rights, none of which is attracted here. In this connection learned advocate relied on the decision of the Hon’ble Supreme Court in the case of Tajvir Singh Sodhi & Ors. v. State of Jammu and Kashmir & Ors., reported at 2023 SCC online SC 344 paras 65 to 67.

16. Learned advocate then submitted that the vacancy noticed dated May 10, 2023, clearly stipulated that once application is submitted, no additional documents/certificates shall be received from the candidates thereafter. Admittedly, the petitioner did not submit documents evidencing his engagement as BRP (Block Resource Person) and CRP (Cluster Resource Person). Hence, no question of the petitioner being given a further opportunity to submit such documents can or does arise.

17. It was submitted that the vacancy notice was not challenged by the petitioner before CAT nor has been challenged before this Court. The terms and conditions of the vacancy notice are binding on the petitioner. In any event, having participated in the recruitment process pursuant to the aforesaid vacancy notice, it is not open to the petitioner to challenge the said process.

18. It was then submitted that the petitioner’s application has been rejected on the ground of he being over aged. The inapplicability of the age relaxation provision in the circular dated September 19, 2011, is not an independent reason but contributes to the petitioner being over aged. Even after granting him benefit of age relaxation to the extent he was eligible, he has been found to be over-age. 9

19. Learned Advocate said that though a distinction has been sought to be made between the provisional list of ineligible candidates and the subsequent list, such distinction is not tenable. The second list only elaborates upon the reason as to why a particular candidate is over-age. This has been uniformly done in respect of all the candidates. It is not the petitioner’s case that he has been discriminated against.

20. It was finally submitted that the decision of CAT is a well-reasoned one and does not call for any interference in exercise of the power of judicial review under Article 226 of the Constitution. Finding of the Tribunal:-

21. The Tribunal noted that according to the online application made by the present petitioner, he needed age relaxation of 7 years 9 months and 12 days. However, as per the own declaration of the petitioner and the supporting documents, he was entitled to age relaxation of only 4 years 10 months.

22. The Tribunal further noted that the petitioner had signed a declaration to the following effect:- “1. Incomplete online application in any manner shall be rejected and no further correspondence shall be entertained.

2. No modifications/alterations are allowed after candidate submits the online application form. If any discrepancies are found between the data/information filled by the candidate in 10 online application and the original testimonies, his/her application is liable to be cancelled.”

23. Having noted the above, the Tribunal went on to hold as follows:- “After filling up the form himself and signing the above declaration, the applicant cannot now claim that the has more experience than he declared in the application form. Nothing prevented him either from claiming the experience or from uploading certificates in support of such experience. To expect the respondents to travel beyond the self-made entries in the application and take cognizance of facts not mentioned in the application is unreasonable particularly in the light of the declaration made by the applicant that any discrepancy between the claims in the application form and the testimonials detected during verification would render the candidature liable to be cancelled. Placing reliance on documents which were neither submitted with the application nor were mentioned in the application form amount to creating of such discrepancy. In our opinion, the respondent acted fairly and lawfully in considering the declaration made by the applicant and the certificates attached to the online application for determining the extent of age relaxation the applicant was entitled to. We find no legal infirmity in the decision of the respondents to declare the applicant as ineligible for selection as PGT on the ground of being over- aged.”

24. The Tribunal thus dismissed the original application filed by the present writ petitioner. Hence this writ petition. 11 Court’s view:-

25. We have given our anxious consideration to the rival contentions of the parties and we have carefully considered the order of the Tribunal which is under challenge before us. Before we proceed to deal with the merits of the case, we may note a few decisions of the Hon’ble Supreme Court on the scope of interference by the writ Court in matters of selection process pertaining to public employment.

26. In Dalpat Abasaheb Solunke v. Dr. B. S. Mahajan, reported at