Calcutta High Court (Appellete Side)
Rabiul Islam Sarkar vs State Of West Bengal & Ors on 30 July, 2018
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
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30.07.2018
Sl. No.21
Ct.12
BM
WP 5082 (W) of 2018
Rabiul Islam Sarkar
Vs.
State of West Bengal & Ors.
Mr. Washef Ali Mondal ... for the petitioner
Mr. Arindam Chattopadhyay ... for the State
Mr. Kanak Kiran Bandyopadhyay ... for the SSC
1. This is an application under Article 226 of the Constitution of India
wherein the writ petitioner is aggrieved by rejection of his candidature on
the ground that he was under age as per Rule 4 of the West Bengal School
Service Commission (Selection of Persons for Appointment to the Post of
Non-Teaching Staff) Rules, 2009.
2. The petitioner submits that an advertisement was made on August 8, 2016
for the selection for the post of Clerk and Group- 'D' staffs. In paragraph 13
of the eligibility criterion, the age limit has been specified as the age to be
taken on January 1, 2016. The petitioner submits that he was only 33
days below the age criterion and on the date of the advertisement and the
subsequent selection process he was very much qualified and eligible for
the selection.
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3. The petitioner relies on a coordinate bench judgement in W.P. 5443 (W) of
2015 (Mou Mazumder vs. State of West Bengal & Ors.) wherein a similar
fact situation had arisen and the coordinate Bench had directed the West
Bengal Board of Primary Education to consider the candidature of the writ
petitioner. The petitioner further relies upon a judgement and order passed
by the Division Bench of this Court in FMA 1997 of 2014 with CAN 5400 of
2014 (Bidyut Roy vs. State of West Bengal & Ors.) wherein the Division
Bench held that the age of the petitioner should be taken as on the date
the recruitment process had started. In this particular case, the
advertisement had come out in 2006 but the actual recruitment process
had actually started in 2009 (when the petitioner had attained the age of
18 years) and the appeal Court had been pleased to allow the petitioner
relaxation of age and directed the authorities to act accordingly.
4. Counsel appearing on behalf of the School Service Commission relied on
several Supreme Court Judgments to support his arguments that when a
specific date has been provided for in the rules/ advertisement, there is no
question of any relaxation to the said criteria of age. He firstly relied on
State of Rajasthan -v- Hitendra Kumar Bhatt reported in JT 1997 (7)
S.C. 287 wherein the Supreme Court held that a sympathetic view cannot
replace the principles established in law. The Supreme Court specified that
the cut-off date has to be adhered to and applied consistently for all
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persons and the same cannot be ignored for a particular person. The
relevant portion of the said judgment is provided below:
"6. ....... A cut-off date by which all the requirements relating to qualifications have to be
met, cannot be ignored in an individual case. There may be other persons who would
have applied had they known that the date of acquiring qualifications was flexible. They
may not have applied because they did not possess the requisite qualification on the
prescribed date. Relaxing the prescribed requirements in the case of one individual may,
therefore, cause injustice to others."
5. The petition further relied on Jasbir Rani and Others -v- State of Punjab
and Another reported in (2002) 1 SCC 124 that dealt specifically with the
issue of cut-off date pertaining to age. In this case, the government of
Punjab had invited for applications for post of Panchayat Secretaries and
had fixed the cut-off date for fulfilling the eligibility qualification pertaining
to age. The cut-off date was challenged on the ground that since Rule 5 of
the Punjab Panchayat Secretaries (Recruitment and Conditions of Services)
Rules, 1979 required a candidate to fulfill the eligibility qualification
pertaining to age on the date of his appointment, the fixing of a cut-off date
prior to the date of appointment was not authorized by the Rules and was
rather contrary to it. Dismissing their appeals, the Supreme Court held as
follows:
"11. No doubt, the Rule does not provide a cut-off date by which an applicant is to
satisfy the prescribed eligibility qualification pertaining to age. In the absence of a
statutory provision in that regard the date has to be fixed at the time of issuing the
advertisement. This is necessary not merely to enable the appointing authority to sort
out the applications of the eligible candidates from those candidates who do not fulfil the
prescribed qualification, but also to avoid criticism of favouritism and nepotism against
the authority. In the first advertisement issued in the case on 18-09-1997 the cut-off
date was fixed as 1-9-1997 i.e. about two weeks prior to the advertisement. In the
second advertisement which was issued one year after the first one ordinarily the
appointing authority could have similarly fixed a date a few days prior to the date of
issue of the advertisement; but as noted earlier, in the first advertisement the
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applications were invited from male candidates only; perhaps realizing that there was no
reasonable basis for confining the recruitment to male candidates only it was decided to
throw open the recruitment to eligible female candidates also and in pursuance of the
said decision the second advertisement was issued on 19-9-1998. In such circumstances
the appointing authority while issuing the second advertisement fixed the same cut-off
date as in the first. If this had not been done then there would have been a difference in
date by which the eligibility qualification pertaining to age was to be complied by male
and female candidates. Such action would have exposed the authorities to criticism of
discrimination. In the circumstances no exception can be taken to the action of the
authority fixing the same cut-off date in both the advertisements.
12. Coming to the contention raised by Shri R.K. Jain that prescribing a cut-off date
prior to the date of appointment for the purpose of satisfying the eligibility qualifications
pertaining to age is impermissible under the Rule, we are not inclined to accept the
contention. Rule 5, as we read it, merely prescribes the eligibility qualification (minimum
and maximum) pertaining to age for appointment to the post of Panchayat Secretary.
The Rule neither prescribes a cut-off date nor bars fixing of such a date by the authority
competent for making the appointment. In the absence of any such provision it cannot
be held that Rule 5 even by implication prohibits fixing a cut-off date regarding the age.
13. ......
14. The position that emerges from the discussions in the foregoing paragraphs is that
the State Government cannot be faulted for fixing a cut-off date in the first
advertisement and in the circumstances of the case in adopting the same cut-off date in
the second advertisement. Therefore, there is no merit in these appeals which are
accordingly dismissed. There will, however, be no order for cost."
6. The last judgment relied on by the respondent authorities is Shankar K.
Mandal and Others -v- State of Bihar and Others reported in (2003) 9 SCC 519 wherein the Supreme Court laid down the principles after considering several earlier judgment of the Supreme Court. The relevant portion is provided below:
"5. ........ What happens when a cut-off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non- prescription has been considered by this Court in several cases. The principles called out from the decisions of this Court (see Ashok Kumar Sharma -v- Chander Shekhar, Bhupinderpal Singh -v- State of Punjab and Jasbir Rani -v- State of Punjab) are as follows:
(1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules.5
(2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications. (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority."
7. It is evident from the judgment in Shankar K. Mandal (supra) that when there is no cut-off date provided for in the rules then such date shall be as appointed for the purpose in the advertisement calling for applications.
8. On an examination of the Supreme Court judgment relied upon by the respondents, it is clear that the State has a right to fix a cut-off date in the advertisement given for selection. In the present case the same was done. The contention of the petitioner that a sympathetic view should be taken in his case as he was under age by only 33 days on the appointed date and had come of age when the selection process started cannot come to his rescue. The principle to be kept in mind is that several candidates would have followed the cut-off date and would have not applied as they were not eligible to do so. The fact that the petitioner applied even though he did not meet the eligibility criteria cannot mushroom into a right to seek for a sympathetic appointment.
9. Both the judgments cited by the writ petitioner do not refer to a single Supreme Court judgment on the issue. Owing to the same both the judgments are contrary to the principles enunciated by the Supreme Court 6 as indicated above and therefore lose their efficacy as binding precedents. The doctrine of precedents has been discussed in detail by me in my earlier judgment in the case of Sri Bijon Mukherjee -v- The State of West Bengal and Others bearing no. W. P. No. 6389(W) of 2017 that enunciates the ratio that this Court is bound by the law laid down in the Supreme Court judgments and not by a Division Bench or a Co-ordinate Bench judgment that is contrary to the Supreme Court judgments.
10. In view of the above reasoning, I dismiss this writ petition. On a compassionate plea having been made before this Court by the counsel on behalf of the petitioner, no costs are imposed.
11. Since no affidavits have been invited, the allegations contained in the writ petition are deemed not to be admitted.
12. All parties are to act on the server copy.
13. Urgent certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( Shekhar B. Saraf, J.)