Calcutta High Court
Md. Ali Akbar vs Union Of India (Uoi) And Ors. on 3 September, 2004
Equivalent citations: AIR2006CAL66, (2005)1CALLT590(HC), AIR 2006 CALCUTTA 66, (2005) 3 CALLT 495, (2005) 1 CAL LJ 441, (2005) 1 CALLT 590
Author: Altamas Kabir
Bench: Altamas Kabir
JUDGMENT A.K. Bisi, J.
1. The instant appeal has been preferred by the appellant, Md. Ali Akbar, against the judgment and Order passed by the learned single Judge on 23.2.2004 in W.P. No. 1276(W) of 2004. By the judgment and Order impugned under appeal the learned single Judge dismissed the writ application filed by the present appellant as writ petitioner.
2. The factual matrix leading to the instant appeal may briefly be narrated thus. As per the case of the writ petitioner/appellant, Shalimar Works (1980) Ltd, is a public limited company and conducts 4 years' Marine Apprenticeship Course without stipend which is recognized by the Director General of Shipping. The said Shalimar Works (1980) Ltd. is also a marine institution recognized and approved by the Director General of Shipping, Ministry of Shipping, Government of India. The certificate of the said training courses is given by the Director General of Shipping, Ministry of Shipping, Government of India, and the selection procedure and the criteria for selection in the said course are governed by the Circular issued from time to time by the Director General of Shipping. The said Shalimar Works (1980) Ltd. by a notice published in the newspaper "The Statesman" dated 29.9.02 invited applications from the prospective candidates for undergoing 4 years' Marine Apprenticeship Training without stipend. In the said notice the eligibility criteria for applying the said training course were given as under :-
"i) passed (Class 10 + 2) in Science Stream with minimum 60% marks in Physics, Chemistry and Mathematics for W.B.H.S.C. and 70% marks in the same subjects for other Councils.
ii) Age: As on 1.1.2003 the candidate should not exceed 22 years."
3. The grievance of the writ petitioner is that in pursuance of the said advertisement as published in "The Statesman" dated 29.9.2002 the petitioner having fulfilled the aforesaid eligibility criteria applied for undergoing 4 years' Marine Apprenticeship Training without stipend by paying necessary fees in favour of Shalimar Works (1980) Ltd. The petitioner's date of birth is 15.1.1983 and as such on 1,1.2003 the petitioner was below the maximum age limit of 22 years as fixed in the said advertisement. The petitioner was ultimately selected and got admission by Shalimar Works (1980) Ltd. Despite selection of the petitioner and fulfillment of all criteria as per the notice inviting applications published in the newspaper the petitioner's admission to the said course was subsequently cancelled by the Assistant Director General of Shipping by his communication dated 23.5.2003 which is impugned in the writ application.
4. The writ application was opposed by the respondent No. 3, Director General of Shipping.. It had been contended inter alia on behalf of the said respondent that Shalimar Works (1980) Ltd. invited applications for admission of candidates for 4 years' Marine Apprenticeship Training without stipend vide their advertisement dated 29.9.2002 wherein the criteria regarding age was shown as 22 years as on 01.01.2003 which was contrary to the guidelines issued vide M.S. Notice No. 24 of 2002 dated 3.10.2002 by respondent No. 3, the Director General of Shipping where the eligibility criterion regarding age was 20 years on the date of commencement of the course in any institution approved by the Director General of Shipping. The particular course commenced on 01.04.2003 and on that date the candidates should have been within 20 years of age. The petitioner completed 20 years of age on 14.1.03 whereas the course commenced on 1.4.2003. Since the petitioner did not fulfill requirement of the prescribed age on the date of commencement of the course, the respondent authority rejected the application of the petitioner for admission to the said course.
5. Further contention on behalf of the Director General of Shipping is that Shalimar Works (1980) Ltd. published a wrong advertisement in 'The Statesman" dated 29.9.2002 by prescribing maximum age limit as 22 years as on 1.1.2003 although under M.S. Notice No. 22 of 2002 dated 13.9,2002 the maximum age limit as prescribed was 20 years on the date of commencement of the course.
6. The learned single Judge has arrived at the finding that the said Shalimar Works (1980) Ltd. conducting the course violated the norms stipulated in M.S. Notice No. 22 of 2002 though the course is under affiliation of the Director General of Shipping and the same is under supervisory and administrative control of the said authority. It has been observed by the learned single Judge that due to wrong advertisement in the newspaper by enhancing the maximum age limit by Shalimar Works (1980) Ltd. the petitioner has not acquired any legal right to continue in his course irrespective of the fact that the petitioner was selected and got admission and in that view of the matter the petitioner has no legal right to continue in the course.
7. It has been further observed by the learned single Judge that the petitioner had taken a chance in terms of the wrong advertisement and when it came to the notice of the Ministry of Shipping that the advertisement was wrongly made, his admission was cancelled. The learned single Judge is of the view that the petitioner has no legal right to claim the relief as prayed for and it is the decision of the Ministry of Shipping who are conducting the course to formulate their own rules and regulations for admission of the students and a student cannot challenge the same by writ application.
8. In view of such findings the learned single Judge has ultimately dismissed the writ application. It has been further held by the learned single Judge that dismissal of the writ application will not debar the petitioner from taking appropriate civil action against Shalimar Works (1980) Ltd. for misguiding the petitioner by publishing a wrong advertisement which is contrary to the Circular being M.S. Notice No. 22 of 2002, regarding admission in a particular course and its maximum age on the date of commencement of such course.
9. Aggrieved, the writ petitioner has preferred the instant appeal assailing the findings of the learned single Judge which result in dismissal of the writ application.
10. The sole point to be considered in the instant appeal is whether or not the findings of the learned single Judge resulting in dismissal of the writ application filed by the appellant are legally sustainable in the face of the materials on record.
11. Mr., Sagar Bandopadhyay, learned advocate on behalf of the appellant contended that the appellant being within 20 years as on the cut-off date fixed in the advertisement, there was no justification on the part of the respondent authority to refuse approval of Proforma 'A' of the appellant and such act of refusal on the part of the respondent authorities was wholly unjustified and illegal. It was further urged by Mr. Bandopadhyay that admission to the course in question under Shalimar Works (1980) Ltd. was made through a selection procedure without any prior fixation of the date of commencement of the course. Mr. Bandopadhyay further urged that since the appellant was within 20 years of age as on the cut-off date fixed by Shalimar Works (1980) Ltd. in their advertisement, question of considering the age as on the date of alleged commencement of the course which was never fixed at the time of initiation of process of selection could and did not arise at all and there was absolutely no justification whatsoever on the part of the respondent authorities of the Ministry of Shipping, Government of India to disapprove the Proforma 'A' of the appellant.
12. As argued by Mr. Bandopadhyay, the learned single Judge failed to appreciate the scope and purview of the writ application and relied on M.S. Notice No. 22 of 2002 which was not at all given effect to by the respondent authorities. He further contended that while refusing to give approval of Proforma 'A' of the appellant by the communication dated 23.5.2003 the authority concerned relied on M.S. Notice No. 24 of 2002 and not on M.S. Notice No. 22 of 2002 and as such it was not at all proper to dismiss the writ application on the basis of M.S. Notice No. 22 of 2002.
13. It was urged by Mr. Bandopadhyay that since the petitioner was already selected in the course which commenced on and from 1.4.2003 and the selection procedure was already completed he must be allowed to pursue the course and under such circumstances non-approval of Proforma 'A' of the appellant by the authority concerned debarring him from proceeding further with the course of 4 years Marine Apprenticeship Training without stipend despite being selected was wholly unjustified and such action caused severe prejudice to the appellant. *
14. Mr. Jaytosh Majumdar, learned advocate for the respondent authority the Director General of Shipping, contended, on the other hand, that the respondent authority laid down the procedure and criteria for selection of candidates for various maritime courses and accorded approval to the institution for conducting such courses subject to fulfillment of the criteria prescribed for each course. It was urged by Mr. Majumdar that Shalimar Works (1980) Ltd. violated the guidelines issued by the Director General of Shipping and published the misleading advertisement indicating age limit as 22 years on 1.1.2003 instead of 20 years as prescribed vide M.S. Notice No. 24 of 2002 and since the maximum age limit prescribed for admission to 4 years' Marine Apprenticeship Training was 20 years on the date of commencement of the course, the respondent authority was not in a position to approve the selection of the appellant including some other candidates by Shalimar Works (1980) Ltd, in violation of the said guidelines and the existing norms. He drew our attention to Clause 7 of M.S. Notice No. 24 of 2002 dated 3.10.2002 issued by the Director General of Shipping where cut-off date for age limit was fixed as on the date of commencement of the course. He pointed out that Shalimar Works (1980} Ltd. invited applications for admission of candidates to the said course by their advertisement dated 29.9.2002 published in "The Statesman" wherein the age limit was shown as 22 years as on 1.1.2003 which was contrary to the guidelines as per M.S. Notice No. 24 of 2002 dated 3.10.2002 issued by the Director General of Shipping. It was argued by Mr. Majumdar that since the appellant was not found eligible for admission to the said course due to overage on the commencement of the course in terms of above-noted guidelines, the approval for selection of the appellant was not accorded by the respondent authority.
15. It was further urged by Mr. Majumdar that since Shalimar Works (1980) Ltd. violated the guidelines and published the misleading advertisement and admitted 3 candidates including the appellant whose age was beyond the maximum age limit prescribed for admission to such course, the show cause notice was served on Shalimar Works (1980) Ltd, and ultimately the said institute was de-recognized by the Director General of Shipping. Mr. Majumdar submitted that the appellant must not be allowed to take advantage of the wrong advertisement which was published in the newspaper in violation of the guidelines laid down by the authority concerned and the findings arrived at by the learned single Judge ought not to be interfered with. He cited C. S. J. R. and Ors. v. Dr. Ajay Kr. Jain, the Supreme Court observed:
"If something wrong has been done in violation of the rules, we cannot use that as an example to perpetuate an illegality."
16. It was contended by Mr. Majumdar that selection of the appellant was made by Shalimar Works (1980) Ltd. on the basis of a wrong advertisement published in violation of the guidelines prescribed by the authority concerned and the appellant must not be allowed to take advantage of such illegality. He further urged that under the above circumstances there was no justifiable ground whatsoever for interfering with the findings of the learned single Judge.
17. Mr. Ashim Kumar Das, learned advocate for the respondent No. 6 Shalimar Works (1980) Ltd. submitted that the then Head of Department of Human Resource Development of the Company made publication in the newspaper on 29.9.2002 mistakenly by mentioning the age limit as 22 years because M.S. Notice No. 24 of 2002 dated 3.10.2002 reached the respondent-company in later part of October, 2002 and the violation of the terms' of M.S. Notice No. 24 of 2002 had been detected on receiving the show cause notice from the respondent No. 3, the Director General of Shipping. It was further submitted by Mr. Das that on receipt of the reply dated 6.9.2003 to the show cause notice dated 11.8.2003 respondent No. 3 found the same to be unsatisfactory and by the letter dated 12.5.2004 respondent No. 3 had permanently withdrawn the approval granted to the aforementioned institute for conducting the said course and de-recognized the institute with effect from 10.5.2004.
18. We have carefully considered the respective submissions made by the learned advocates for the parties and gone through the materials on record.
19. Indisputable is the fact that the appellant was selected by Shalimar Works (1980) Ltd. for admission to 4 years' Marine Apprenticeship Training without stipend. It is quite evident from the materials on record that pursuant to the advertisement published in "The Statesman" dated 29.9.2002 the appellant submitted his application as one of the candidates for undergoing the said training. As referred to above, the maximum age limit as mentioned in the said advertisement was 22 years as on 1.1.2003. Copy of the said advertisement is marked as annexure P-l to the writ application.
20. From the materials on record it further appears that the Director General of Shipping has laid down that the candidates for selection to the said course should be within the prescribed age as on the date of commencement of the course. It has been so stipulated in Clause 7 of M.S. Notice No. 24 of 2002, copy of which is marked as annexure P-4 to the writ application.
21. We are told that date of commencement of the said course was 1.4.2003. It is the specific stand taken by the respondent authority, the Director General of Shipping, that the appellant was not within the age limit of 20 years on the date of commencement of the course which was prescribed by the authority concerned in M.S. Notice No. 24 of 2002 dated October 3, 2002 issued by the Director General of Shipping. The contention raised on behalf of the Director General of Shipping, Government of India, as referred to above, is that Shalimar Works (1980) Ltd. published the above-noted advertisement in "The Statesman" dated 29.9.2002 and the maximum age limit of 22 years as on 1.1.2003 mentioned therein as one of the criteria for admission to the said course is contrary to the guidelines prescribed by the Director General of Shipping in M.S. Notice No. 24 of 2002 and since there was wrong advertisement in the newspaper, the appellant cannot take advantage of such wrong advertisement. Precisely this is also the view taken by the learned single Judge in the impugned judgment.
22. The argument advanced on behalf of the appellant, on the other hand, is that the appellant satisfied the requirements including age limit in terms of the advertisement published in "The Statesman dated 29.9.2002 and even if there is any departure from the cut-off date for age limit as prescribed in Clause 7 of M.S. Notice No. 24 of 2002 dated October 3, 2002, the appellant who was selected by Shalimar Works (1980) Ltd. in terms of the said advertisement cannot be said to be at fault and he must not be deprived of the benefit already accrued to him.
23. It appears that the learned single Judge has laid stress on the earlier M.S. Notice being M.S. Notice No. 22 of 2002 and arrived at the finding that the institution Shalimar Works (1980) Ltd. who were conducting the course violated the norms stipulated in M.S. Notice No. 22 of 2002 though the course was under affiliation of the Director General of Shipping and the same was under the supervisory and administrative control of the said authority. It has been further observed by the learned single Judge that due to wrong advertisement in the newspaper by enhancing the maximum age limit of Shalimar Works (1980) Ltd., the petitioner (presently the appellant) has not acquired any legal right to continue in his course irrespective of the fact that the petitioner was selected and got admission. A careful perusal of M.S. Notice No. 24 of 2002 dated October 3, 2002 which was issued subsequently to M.S. Notice No. 22 of 2002 makes it quite clear that M.S. Notice No. 22 of 2002 did not indicate the date on which that notice would come into effect and since it had evoked immediate and varied responses from all concerned including the training institutions, meetings were held by the authority concerned and after taking all the suggestions into consideration carefully the Director General of Shipping issued of M.S. Notice No. 24 of 2002 in supersession of M.S. Notice No. 22 of 2002 and all other circulars connected therewith. So in our view in such state of affairs no reliance can be or should be placed on M.S. Notice No. 22 of 2002 since the new criteria for selection have been laid down in subsequent M.S. Notice No. 24 of 2002.
24. From the materials on record it further transpires that Assistant Manager (Personnel), Shalimar Works (1980) Ltd. sent the letter dated 30.6.2003 to Assistant Director General of Shipping, Ministry of Shipping, copy of which is marked as annexure P-6 to the writ application wherefrom it is quite apparent that Shalimar Works (1980) Ltd. published the advertisement in the newspaper on 29.9.2002 whereas they received M.S. Notice No. 24 of 2002 in the middle of October, 2002 and in the meantime they had selected four candidates including the present appellant. By the said letter they requested the authority concerned to give approval of selection of the candidates including the present appellant and assured that in future they would strictly comply with M.S. Notice No. 24 of 2002. As already indicated, the show cause notice dated 11.8.2003 was sent by the Senior Deputy Director General of Shipping to Shalimar Works (1980) Ltd. and in the reply thereto dated 6th September, 2003, copy of which is marked as annexure 'B' to the affidavit-in-opposition filed on behalf of Shalimar Works (1980) Ltd. it has been specifically averred that M.S. Notice No. 24 of 2002 reached the office of the said company in later part of October, 2002. So the fact that M.S. Notice No. 24 of 2002 dated 3.10.2002 was received by Shalimar Works (1980) Ltd. after publication of the advertisement in the newspaper and completion of selection process is quite evident on the face of such materials on record and this fact has not been disputed by the Director General of Shipping. It further, appears that the letter dated 9th February, 2004 was sent on behalf of the Director General of Shipping to Shalimar Works (1980) Ltd., a copy of which is marked as annexure 'D' to the affidavit-in-opposition filed on behalf of Shalimar Works (1980) Ltd. and by the said letter the Director General of Shipping strictly warned Shalimar Works (1980) Ltd. and directed them to be very careful in selection of the candidates in future failing which an appropriate action deemed fit would be taken against them. As already referred to, the Director General of Shipping subsequently withdrew the approval granted to the said institute for conducting the course and de-recognized the institute with effect from 10.5.2004.
25. The concatenation of circumstances emerging from the above materials on record leave no room for skepticism that the appellant was selected for admission to the particular course and he was within the age limit as prescribed in the advertisement which was published in the newspaper prior to receipt of M.S. Notice No. 24 of 2002 by Shalimar Works (1980) Ltd. Here again we may point out even at the cost of repetition that selection process was also over prior to receipt of M.S. Notice No. 24 of 2002 dated 3.10.2002 by the said institute. So the principle of natural justice demands that the appellant should not be deprived of the opportunity already afforded to him and that is evidently more so when there was no fault whatsoever on the part of the appellate who submitted application pursuant to the advertisement published in the newspaper and was already selected for admission to the particular course. In our view subsequent report of M.S. Notice No. 24 of 2002 by the said institute from the Director General of Shipping and withdrawal of recognition of the institution to conduct such course with effect from 10.5.2004 will not stand in the way of selection of the appellant to the said course which was made long before the said institute was de-recognized by the Director General of Shipping.
26. One startling feature which strikes us is that while prescribing criteria for selection of candidates for various pre-sea training courses, the Director General of Shipping prescribed the age of the candidates as on the date of commencement of the course as per Clause 7 of M.S. Notice No. 24 of 2002 whereas fixation of date of commencement of such course lies with the discretion of different agencies through whom the courses are conducted. In our view this gives rise to grave anomaly and shocking discrimination which offends Article 14 of the Constitution of India. If different dates for commencement of the course are fixed by different agencies or institutes, as the case may be, through which courses are conducted, it obviously gives rise to variable standards or conditions and some candidates may be within the prescribed age limit on the date of commencement of the course fixed by one agency or institute whereas some other candidates being of the same age may be found to be above the prescribed age limit if subsequent dates of commencement of such courses are fixed by other agencies or institutes. So in our view, such inherent fallacy of the unusual policy regarding cut-off date for age limit as adopted by the authority concerned militates against the doctrine of equality embodied in Article 14 of the Constitution of India. It is settled law that the guarantee of the equal protection would extend not only when an individual is discriminated against in the matter of exercise of his right or in the matter of imposing liabilities upon him, but also in the matter of granting privileges. If as regards the subject matter of the legislation the position of two persons is the same, there should be no discrimination between one person and another in such case. Exclusion of arbitrariness is the core of justice. So the policy must be based on some valid principle which itself must not be irrational or discriminatory.
27. In Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. the Supreme Court quoted the following words of Prof. Reich in an Article on "The New Property" in 73 Yale Law Journal 733 - "that Government action be based on standards that are not arbitrary or unauthorized".
28. In M/s. Kasturi Lot Lakshmi Reddy etc. v. The State of Jammu & Kashmir and Anr. the Supreme Court has laid down that where any governmental action fails to satisfy the test of reasonableness and public interest and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid.
29. Having regard to the above noticed principles of the law we impress upon the authority concerned to prescribe the age limit as on a specified date which will be applicable uniformly in case of all candidates who intend to apply for admission to various pre-sea training courses and for that the guideline framed relating to cut-off date for age limit is required to be suitably amended. Since we have already pointed out that, the policy adopted relating to cut-off date for age limit is inherently fallacious, the case of C. L. S. R. and Ors. (supra) as cited by Mr. Majumdar, the learned advocate on behalf of the Director General of Shipping, has got no manner of application in the instant case.
30. For the foregoing reasons we are of the view that the impugned judgment and Order of dismissal of the writ application passed by the learned single Judge cannot be sustained.
31; The appeal is accordingly allowed. The impugned judgment and Order passed by the learned single Judge on 23.2.04 in W.P. No. 1276(W) of 2004 are set aside. The decision of the Director General of Shipping communicated vide letter No. 3-TR(44)/2002-AB dated 23.5.2003 issued by the Assistant Director General of Shipping so far as the same relates to disapproval of Proforma 'A' of the appellant in respect of 4 years' Marine Apprenticeship Training be quashed. The Director General of Shipping, Ministry of Shipping, Government of India, is directed to give approval of Proforma 'A' of the appellant, Md. All Akbar, and to allow the appellant to enroll himself in the said 4 years' Marine Apprenticeship Training of Shalimar Works (1980) Ltd. on the basis of the selection already made so that the appellant can pursue the said course and participate in the training for the remaining period. The writ application is thus allowed.
In view of disposal of the appeal the stay application is also disposed of. There will be no Order as to costs.
Before parting with the case we do hope that the Director General of Shipping, Ministry of Shipping, Government of India, will suitably amend the guideline relating to cut-off date for age limit in the light of our above observations to eradicate possibility of any discrimination among the candidates who intend to apply for admission to various pre-sea training courses.
Prayer for stay of operation of the order, made by the learned advocate for the respondent, Director General of Shipping, is considered and rejected.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.
A. Kabir, J.
32. I agree.