Calcutta High Court (Appellete Side)
Sitangsu Kumar Dey & Ors vs The Airports Authority Of India & Ors on 28 January, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
Form No. J (2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE ARINDAM MUKHEREJEE.
W.P.A 1621 of 2025
SITANGSU KUMAR DEY & ORS.
VS.
THE AIRPORTS AUTHORITY OF INDIA & ORS.
FOR THE PETITIONERS :: Ms. Shetparna Ray
.....Advocate
FOR THE RESPONDENTS
: Mr. Anup Kanti Poddar,
Mr. Ayan Poddar,
Mr. Soham Dutta,
Ms. Anjali Shaw,
Ms. Khusboo Ruia
.....Advocates
AS AMICUS CURIAE :
Mr. Parthasarathi Bhattacharyya
HEARD ON 28.01.2025
JUDGMENT ON : 28th January, 2025.
Arindam Mukherjee, J.:
The deficit court fees are paid.
1. Mr. Partha Sarathi Bhattacharya is appointed as amicus curiae in view of the urgency and peculiar facts and circumstance of the case, Mr. Bhattacharya has been rendered an able assistance to this W.P.A . 1621 of 2025 Court for adjudicating this writ petition which had to be heard and decided by today.
2. The Airports Authority of India (in short, "AAI") being the respondent no.1 in this writ petition published an advertisement for recruiting Junior Assistant (Fire Service) NE-4 along with Senior Assistant (Electricians) NE-6 and Senior Assistant (Accounts) NE-6 on 30th September, 2022. In this writ petition, we are only concerned with the vacancies declared against Junior Assistant (Fire Service) NE-4 as the petitioners had participated in such recruitment process initiated by issuance of an advertisement dated 30th September, 2022 (hereinafter referred to as, "the recruitment process of 2022").
3. Under the recruitment process of 2022, the age for applying against vaccines for Junior Assistant (Fire Service) was 18 to 30 years as on 30th September, 2022. The petitioner nos.1 and 2 who were applicants under Unreserved Category (in short, "UR") and the petitioner no.3 being an applicant under Economically Weaker Section (in short, "EWS") were within 30 years being the maximum age as on 30th September, 2022. The said advertisement also provided for age relaxation of 5 years for Scheduled Castes/Scheduled Tribes (in short, "SC/ST"), 3 years for Other Backward Classes, Non-Creamy Layer (in short, "OBC-NCL") candidates as on 30th September, 2022. The petitioner no.4 who applied under OBC-NCL category was also below 33 years as on 30th September, 2022. The recruitment process of 2022 also provided for relaxation of age for ex-servicemen and departmental Page 2 of 13 W.P.A . 1621 of 2025 candidates who were in regular services of AAI. A different age limit was provided for widows, divorced women and women judiciary separated from their husbands.
4. The recruitment process of 2022 proceeded uptill the final stage when the selection list was published. The petitioners were initially in the waiting list but in the final selection list prepared for filling up 32 vacancies under the said recruitment process of 2022 none of them could make through. The recruitment process of 2022 was cancelled by the Regional Executive Director (ER) by issuing a cancellation notice which appears to be dated 13th February, 2024. The declaration made in the said cancellation notice is set out hereunder:-
"This has reference to the recruitment Advertisement No.ER/01/2022 published on AAI website on 30.09.2022 for the post of Junior Assistant (Fire Service) (Post Code 03).
It is hereby notified for the information of all concerned that the recruitment for the post of Junior Assistant (Fire Service) (Post Code 03) against Advertisement No.ER/01/2022 STANDS CANCELLED due to administrative reasons.
Accordingly, the Final Result of provisionally selected candidates for the post of Junior Assistant (Fire Service) (Post Code 03) published at AAI website on 14.04.2023 STANDS CANCELLED".
5. The cancellation notice was challenged by several candidates by filing a writ petition being WPA 5280 of 2024. This writ petition was disposed of by an order dated 2nd May, 2024 upholding the decision of AAI to cancel the recruitment process of 2022. The order of the Page 3 of 13 W.P.A . 1621 of 2025 Learned Single Judge was assailed in appeal by which was numbered as MAT 1026 of 2024. This appeal was also disposed of by an order dated 5th July, 2024 upholding the order of the Learned Single Judge. The matter travelled to the Honb'ble Supreme Court wherein it was registered as Special Leave Petition (Civil Diary) 34053/2024 and was disposed of by an order dated 30th September, 2024, without interfering with the order dated 5th July, 2024 passed by the Division Bench of this Court.
6. The AAI thereafter issued an advertisement for recruiting Junior Assistant (Fire Service) NE-4 on 19th December, 2024 (hereinafter referred to as, "the 2024 advertisement"). Under the 2024 advertisement, the vacancies declared for Junior Assistant (Fire Service) NE-4 is 89 posts. The educational qualification and other criteria under the 2024 advertisement are the same as that of the recruitment process of 2022 save and except the increase in the vacancies from 32 to 89. The maximum age limit under the 2024 advertisement is 18 years to 30 years as on 1st November, 2024. The upper age limit for OBC-NCL is relaxable by 3 years and for SC/ST candidates by 5 years. The other age limits are also same as that of the recruitment process of 2022.
7. The last date for filling up the application form to participate in the recruitment process of 2024 is 28th January, 2025 (that is today). The writ petition has been filed on 18th January, 2025 and as such it cannot be said to be a delayed approach by the petitioners.
8. The petitioners say that between 30th September, 2022 and 1st November, 2024, the petitioner nos. 1 to 3 have surpassed the age of Page 4 of 13 W.P.A . 1621 of 2025 30 years while the petitioner no.4 has surpassed the age of 33 years. The petitioners being over-aged as on 1st November, 2024 are, therefore, unable to apply through the online mechanism as the same is not permitting the candidature of the petitioners to be uploaded therein. The petitioners say that due to the cancellation of the recruitment process of 2022, the petitioners could not effectively participate in the recruitment process of 2022 though they had applied for their candidature to be considered.
9. The petitioners also say that by eliminating the petitioners from applying under the 2024 recruitment process AAI, an authority under Article 12 of the Constitution of India, has infringed the right guaranteed to the petitioners under Articles 16 and 21 of the Constitution of India. The petitioners say that their right to life includes right to life decently with self-respect which is dependent upon getting a job. In the instant case, the petitioners are deprived from participating in the recruitment process to get a job in an authority under Article 12 of the Constitution of India and as such their rights under Articles 16 and 21 of the Constitution of India is affected. The petitioners also say that the 2022 recruitment process started with the publication of the advertisement on 30th September, 2022. If the said recruitment process continued till it was cancelled on 13th February, 2024, the petitioners were, therefore, eligible to get the job if selected even though they may have surpassed the maximum cut-off age because the passage of time during the recruitment process does not debar a candidate from getting the job on having become over-aged at the time of the Page 5 of 13 W.P.A . 1621 of 2025 appointment. The petitioners rely on the judgment reported in 1990 (2) 669 (A.P. PUBLIC SERVICE COMMISSION, HYDERABAD AND ANR. VS. B. SARAT CHANDRA & ORS.) in this context. The petitioners also say that for no fault of the petitioners, the petitioners being aspirant in getting a job by participating in the 2022 recruitment process lost such opportunity on the selection process having been cancelled. The petitioners, therefore, seek a relaxation of age to participate in the 2024 recruitment process. The petitioners have relied upon two judgments delivered by a Division Bench of Delhi High Court respectively on 14th March, 2023 and 6th April, 2023. The judgment dated 14th March, 2023 was delivered in WP(C) 2977 of 2023 & CM APPL. 11625/2023 & CM APPL. 11626/2023 (NITISH KUMAR & ORS. VS. UNION OF INDIA & ANR.) while that dated 6th April, 2023 was delivered in WP(C) 4185 of 2023 (SANTRAM PATEL AND ORS. VS. CENTRAL RESERVE POLICE FORCE AND ANR.). The selection process which fell for consideration in the order dated 14th March, 2023 is for appointment of Soldier Technical, Nursing Assistant/ Nursing Assistant Veterinary and Sepoy Pharma for the recruitment year 16.02.2023 till 15.03.2023 for domicile of district of Delhi State, Faridabad, Gurugram, Mewat (NUH) and Palwal District of Haryana State. The recruitment process which fell for consideration in the judgment and order dated 6th April, 2023 was in connection with the recruitment to the post of Constable (Technical & Tradesmen) (Male/Female) including Constable (Driver) in Central Reserve Police Force (CRPF-2023) issued vide advertisement dated 15th March, Page 6 of 13 W.P.A . 1621 of 2025 2023. The Division Bench of the Delhi High Court after considering the fact that the recruitment in both the cases were not held for a considerable period of time despite there being vacancies relaxed the age limit for participants. Relying upon the ratio laid down by the Division Bench in the judgment and order respectfully dated 14th March, 2023 and 6th April, 2023 the learned advocate for the petitioner has invited this Court to relax the age limit in case of the 2024 recruitment process to permit the petitioners to participate therein.
10. On behalf of AAI it is submitted that the age criteria specified in the 2024 advertisement is clear and specific. The maximum age of the candidates under the UR or EWS categories as on 01.11.2024 has to be 30 years and below but 18 years or above. Similarly, in case of OBC candidates as on 01.11.2024 the maximum age has to be 33 years. The advertisement does not provide for any relaxation of age apart from that which has been specifically mentioned therein. In such circumstances, no relaxation of age can be granted. On behalf of AAI the provisions of the Airport of India (Recruitment and Promotion) Regulations, 2020 has also been relied upon to demonstrate that no relaxation of age is permissible. AAI has further relied upon the following judgments :-
(i) (2006) 8 SCC 671 (Kendriya Vidyalaya Sangathan & Ors. vs. Sajal kumar Roy & Ors.)
(ii) (2011) 12 SCC 85 (Bedanga Talukdar vs. Saifudaullah Khan & Ors.)
(iii) Judgment delivered on 08.02.1995 in CA No.52 of 1993 by the Hon'ble Supreme Court in Rajasthan Public Service Commission vs. Smt. Anand Kanwar & Ors.) Page 7 of 13 W.P.A . 1621 of 2025
11. By relying upon the judgment of Kendriya Vidyalaya (supra) it is submitted by AAI that just because the recruitment has not taken place for few years an aspirant cannot be granted age relaxation. Relying upon the judgment of Bedanga Talukdar (supra) it is submitted by AAI that the ratio laid down in the two judgments of the Delhi High Court are contrary to the ratio laid down by the Hon'ble Supreme Court in Bedanga Talukdar (supra). It is further submitted that unless the advertisement provides for age relaxation such relaxation cannot be done under any circumstances. Moreover, just because the previous recruitment process was cancelled without there being any mala fide act on the part of AAI the age relaxation cannot be granted to the petitioners allowing them to participate in the 2024 recruitment process. It is also submitted on behalf of AAI that the two judgments of the Delhi High Court relied upon by the petitioners is based on the ratio laid down in another judgment dated 20th January, 2023 passed in WP(C) 90 of 2023 (Sachin & Others vs. Central Reserve Police Force and Another). On behalf of AAI it is further submitted that the ratio laid down in Sachin & Ors. (supra) assist the case of AAI and for that reason no age relaxation should be granted. It is also submitted by AAI that no vested right had accrued in favour of the petitioners as they were not the selected candidates under the 2022 recruitment process for which the petitioners are required to be given relaxation of age due to cancellation of the 2022 recruitment process.
12. After hearing the parties and considering the materials on record, I find that the petitioners apparently have all other eligibility Page 8 of 13 W.P.A . 1621 of 2025 criteria except having become over-aged between 30.09.2022 being the cut-off date under the 2022 recruitment process and 01.11.2024 being the cut-off date under the 2024 recruitment process. All the petitioners are below 35 years in age. They are the young working force in the country. Although, the provisions of Article 21 cannot be stretched to the extent of securing job as right to work is provided in Article 41 of the Constitution which is in the nature of Directive Principles under Part IV of the Constitution but Article 16 provides for equality of opportunity in matters of public employment. Even though it can be contended that job in AAI is not public employment yet borrowing the analogy it is clear that unless this young working class is granted the opportunity to participate in a recruitment process for a respectable job, their right under Article 16 read with Article 45 cannot be protected. Moreover, the country will be deprived of its young human resources from being given an opportunity to work. It may be a hypothetical example but a candidate who participated in the 2022 selection process may be found more suitable than any candidate who is permitted to participate in the 2024 recruitment process only on ground of age limit. The object of an employer should always be to get the best hands under its employment. It is nobody's case that the recruitment process of 2022 was cancelled due to mala fide action on the part of the AAI. This Court also cannot go into the rightfulness of the decision taken by AAI to cancel the 2022 recruitment process as the same has been upheld up to the Hon'ble Supreme Court. In this writ petition, this Court is considering the Page 9 of 13 W.P.A . 1621 of 2025 consequence of the cancellation. The consequence of the cancellation is that despite there being 32 vacancies declared in 2022 no eligible person having the requisite qualification with the age limit got the opportunity to participate and fill up the said 32 vacancies. The 2024 advertisement has provided for filling up of 89 vacancies, it is to be presumed that the same contains the 32 unfilled vacancies due to the cancellation of the 2022 recruitment process on the same having been carried forward.
13. The net result as discussed hereinabove is that a class of candidates who were otherwise eligible and had participated to get a job under the 2022 recruitment process was deprived of the same due to cancellation of the said recruitment process and is now being eliminated from participating in the 2024 selection process on having become over-aged during the interregnum. The question of being selected or being unsuccessful or being in the waiting list is not a paramount factor in the instant case. The core issue is that a class of eligible candidates after submitting their candidature on the cancellation of the 2022 recruitment process have been deprived of an opportunity to participate in a recruitment process which includes the vacancies which were invited to be filled in by the 2022 recruitment process. Even after perusing the judgments of the Hon'ble Supreme Court relied upon by the AAI, I find that there is a factual difference amongst the cases discussed in the said judgments and that in hand. In none of the cases considered by the Hon'ble Supreme Court a recruitment process after being initiated and carried forward up to a substantial stage was cancelled after Page 10 of 13 W.P.A . 1621 of 2025 passage of more than about one and a half years. The Hon'ble Supreme Court had considered the cases where the recruitment process did not take place for over years. In that perspective the judgments lay down the ratio that age relaxation cannot be permitted if on the date of advertisement a candidate is found to be over-aged even if he was deprived from participating in the selection process which could have been but were not conducted in between. One should not lose sight of the fact that a recruitment process is a policy decision. Whether the State or its agencies will recruit or will do so is a matter left to the domain of the employer being part of policy decision. No one can compelled the State or its agencies to initiate a recruitment process by seeking mandatory orders. In that perspective, there could be no dispute as to the ratio laid down in the judgments of the Hon'ble Supreme Court relied upon by AAI. It is also correct that the Hon'ble Supreme Court and the other High Courts have time and again held that the eligibility criteria stipulated in an employment notice has to be strictly adhered to unless a contrary expression is borne out therefrom. It is also correct that in the advertisement of 2024 there is no contrary view expressed for relaxing the eligibility criteria. It is also a settled position of law that Courts should be cautious while interfering with the eligibility criteria fixed by the selection committee as the same is a product of a long thought process with application of mind. However, the interference to the eligibility like relaxation of age was considered and allowed by the Hon'ble Supreme Court in the judgment reported in 2022(4) SCC 643 (High Court of Delhi vs. Page 11 of 13 W.P.A . 1621 of 2025 Devina Sharma). There is as such no absolute bar although there exist a stringent limitation to interfere with the eligibility criteria like age in an appropriate case to subserve the purpose of justice.
14. In the light of the aforesaid discussion, I find that the petitioners or candidates who had participated in the recruitment process by 2022 should not be deprived of participating in the 2024 selection process only on having become over-aged. The benefit of age relaxation to allow participation to the petitioners will again deprive other participants which should be avoided.
15. In the aforesaid facts and circumstances, I find that the candidates who had participated in the 2022 recruitment process and has become over-aged as on 1st November, 2024 should be allowed to participate in the recruitment process of 2024. The candidates who were 30 years or below as on 30th September, 2022 under General Category (UR)/EWS and had participated in the 2022 recruitment process should be allowed to participate in the recruitment process despite having become over-aged as on 1st November, 2024 under the 2024 recruitment process if they are desirous. In order to permit such candidates to participate, the online application date has to be extended after due notification since today is the last date of making application.
16. The online application as prefixed shall end today i.e., on 28th January, 2025. The Selection Committee of AAI shall notify the relaxation of age granted by this order in respect of only the participants of 2022 recruitment process in the official website and in the English and vernacular newspapers having wide circulation in Page 12 of 13 W.P.A . 1621 of 2025 the eastern region within 15 days from date. The notification shall clearly specify the date of resumption of online application in case of the participants of 2022 recruitment process only and fix a time period which shall not be less than 7 days to permit such candidates who are desirous to make the online application.
The writ petition is accordingly disposed of.
17. All the parties including the Selection Committee of the 2024 recruitment process shall act on the basis of server copy of this order duly downloaded from the official website of this Court without insisting upon production of a certified copy.
18. It is made clear that the age relaxation to the candidates who participated in the 2022 recruitment process as an one time measure depending on the peculiar facts and circumstances of the case and shall create no precedence in case of other recruitment processes.
19. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(ARINDAM MUKHERJEE, J.) Milan/ Asraf Page 13 of 13