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2024 DAILYLAW 2467 (CAL)

Surender Singh Thakur v. Union of India

2024-11-06

Arijit Banerjee, Sugato Majumdar

body2024
JUDGMENT : Arijit Banerjee, J. 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. 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. 4. The petitioner submitted his online application on May 30, 2023. 5. 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”. 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. 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 their age limit at the time of their 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 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. 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 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. 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 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, 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. 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. 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. 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 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. 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. 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 (1990) 1 SCC 305 = AIR 1990 SC 434 , the Hon’ble Supreme Court clarified the scope of judicial review of a selection process in the following words:- “….. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the selection committees and to scrutinise the relative merits of the candidates. Whether the candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. The Court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala-fides affecting the selection etc….” 27. In Secy. (Health) Deptt. of Health & F. W. v. Dr. Anita Puri, reported at (1996) 6 SCC 282 , the Hon’ble Supreme Court observed, inter alia, as follows:- “…. It is too well settled that when a selection is made by an expert body like the Public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, the Courts should be slow to interfere with the opinion expressed by experts unless allegations of mala fide are made and established.It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the Courts. If the expert body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the Court should not ordinarily interfere with such selection and evaluation …” 28. In M V. Thimmaiah v. Union Public Service Commission, reported at (2008) 2 SCC 119 , the Hon’ble Apex Court in paragraphs 21 and 30 of the reported judgment, observed as follows:- “21. Now, comes the question with regard to the selection of the candidates. In M V. Thimmaiah v. Union Public Service Commission, reported at (2008) 2 SCC 119 , the Hon’ble Apex Court in paragraphs 21 and 30 of the reported judgment, observed as follows:- “21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The Courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion…. XXX 30. We fail to understand how the Tribunal can sit as an Appellate Authority to call for the personal records and constitute Selection Committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appeal either before the Tribunal or by the Courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACR of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts have started sitting as Selection Committee or act as an Appellate Authority over the selection. It is not their domain, it should be clearly understood, as has been clearly held by this Court in a number of decisions….” 29. In Tajvir Singh Sodhi & Ors. v. State of Jammu and Kashmir & Ors., Supra , the Hon’ble Supreme Court, after taking note of the above decisions, held as follows in paragraphs 66 and 67 of the reported judgment :- “66. In Tajvir Singh Sodhi & Ors. v. State of Jammu and Kashmir & Ors., Supra , the Hon’ble Supreme Court, after taking note of the above decisions, held as follows in paragraphs 66 and 67 of the reported judgment :- “66. Thus, the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene. 67. Thus, Courts, while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee / Interview Board should be best left to the members of the Committee. In light of the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process, the following grounds raised by the writ petitioners, which are based on an attack of subjective criteria employed by the Selection Board / interview panel in assessing the suitability of candidates … would not hold any water.” 30. In view of the aforesaid decisions of the Hon’ble Supreme Court, it is clear that neither the Tribunal nor the Writ Court can act as an Appellate Authority and decide on the merits of a selection process if such process appears to have been held in a reasonable manner. In our view therefore, the Tribunal acted reasonably in not allowing the prayer of the writ petitioner. 31. The Writ Court is not a court of appeal. The Writ Court is concerned with the decision making process and not the merits of a decision. If an authority arises at a decision following the principles of natural justice and if the decision is not patently arbitrary or completely unreasonable or illegal and if the authority has acted within its jurisdiction, then, the Writ Court will not interfere even if such decision may be erroneous. If an authority arises at a decision following the principles of natural justice and if the decision is not patently arbitrary or completely unreasonable or illegal and if the authority has acted within its jurisdiction, then, the Writ Court will not interfere even if such decision may be erroneous. 32. In the present case, we find that the petitioner signed a declaration to the effect that if discrepancy was detected between the data/information submitted while making online application and the documents submitted by him, his application would be liable to be cancelled. As per the testimonials submitted by the writ petitioner while submitting his application online, he was entitled to an age relaxation of 4 years 10 months only, whereas he needed 7 years 9 months and 12 days of age relaxation to be eligible for selection as a regular post-graduate teacher against the vacancy notice dated May 10, 2023. We are unable to accept the submission of the writ petitioner that since he was continuously in the employment of the Government for 8 years, the recruiting authority should have considered the entirety of the 8 years of experience. The writ petitioner did not submit with his online application, testimonials to support his claim that he had 8 years of experience. In fact, in his online application he did not even make such a claim. 33. It may also be noted that Clause 6(2) of the vacancy notice dated May 10, 2023, provided that once application is submitted, no additional documents/certificates shall be received from the candidates thereafter. Hence, not having submitted testimonials in support of his claim that he is entitled to age relaxation of 7 years 9 months and 12 days, the writ petitioner cannot be allowed to contend that he should have been granted an opportunity to submit such testimonials subsequently. 34. Another argument that was advanced on behalf of the writ petitioner is that the list of ineligible candidates dated July 6, 2023, recorded that the petitioner was “Over Aged” and therefore disqualified. However, in the provisional marks statement dated July 21, 2023, against the name of the petitioner it was mentioned “Over Aged. Insufficient years of service as SSCT for age relaxation”. It was contended that this ground was an additional ground for holding the petitioner to be ineligible.However, the petitioner was not granted an opportunity to deal with that ground. However, in the provisional marks statement dated July 21, 2023, against the name of the petitioner it was mentioned “Over Aged. Insufficient years of service as SSCT for age relaxation”. It was contended that this ground was an additional ground for holding the petitioner to be ineligible.However, the petitioner was not granted an opportunity to deal with that ground. We find no merit in this contention of the petitioner also. The provisional marks statement with remarks, dated July 21, 2023, merely clarified that the petitioner was over aged because he did not have sufficient years of service as Sarva Shiksha Contract Teachers (SSCT). Therefore, in our view, there has been no breach of the principles of natural justice as was sought to be argued on behalf of the petitioner. 35. In view of the aforesaid, we find no merit in this writ application. WP.CT No. 30 of 2024 is dismissed. There will be no order as to costs. 36. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all the requisite formalities. I agree. - Sugato Majumdar, J.