Calcutta High Court (Appellete Side)
Md. Ismail Hoque vs Imran Hossain & Ors on 12 August, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
12.08.2014.
d.p.
M.A.T. 1281 of 2012
(CAN 10319 of 2012)
Md. Ismail Hoque.
Versus
Imran Hossain & Ors.
Mr. Amit Prakash Lahiri.
...For the Appellant.
Mr. Sarwar Jahan.
...For the Writ Petitioner/
Respondent No.1
Though this appeal arises out the second round of litigation initiated at the instance of the writ petitioner/respondent No.1 and he succeeded in the second round of litigation before the Learned Trial Judge who set aside the appointment of the private respondent/appellant herein and directed the Managing Committee to consider the case of the writ petitioner for renewal of his service as Samprasarak in the concerned MSK, but we feel that the entire trial of the writ petition was vitiated by entertaining the writ petition though the writ petitioner had no locus to maintain the writ petition because from his own declaration it appears that he failed to fulfil the eligibility criteria regarding the minimum age requirement. The minimum age of candidate for the concerned post was prescribed as 40 years.
However, there was a provision for grant of relaxation with regard to age criteria for the post concerned. It was provided in the recruitment guidelines that if suitable persons are not available with the above qualification then the minimum age requirement will be reduced to 35+ years. It was further provided therein that no relaxation of minimum academic qualification can be allowed under any circumstances.
The document which was produced by the writ petitioner/respondent No.1 before the concerned authority viz. Block Development Officer on 4th August, 2003 shows that he was at that time 31 years 6 months old. The said finding of the concerned Block Development Officer was affirmed by the concerned District Magistrate, Murshidabad in his order dated 26th December, 2006 wherein he also stated that the petitioner was underage at the relevant time, as he was below the age of 35 years.
We have already recorded hereinabove that the minimum age requirement was 40 years. However, there was a relaxation clause. In order to give that relaxation, the authority concerned must come to the conclusion that a suitable candidate having requisite academic qualification is not available in the locality. There is no evidence on record that a suitable candidate above the age of 40 years was not available in the locality and as a result, grant of relaxation of age was necessary. In the absence of such evidence, we will have to accept that the minimum age requirement of the candidate was 40 years in the instant case.
Since the writ petitioner was below the age of 40 years, he, in our considered view was not an eligible candidate for the concerned post.
This is not a public interest litigation. This is a litigation in which some relief has been claimed by a private individual. Unless the claimant of such relief can establish that he is an eligible candidate and his right has been affected as he was denied such engagement illegally, he cannot maintain the writ petition for want of locus. Again, such an ineligible candidate cannot maintain a writ petition challenging the legality of selection of another candidate.
Thus, considering the writ petition from this angle, we hold that the writ petition ought not to have been entertained as the writ petition is not maintainable.
The writ petition thus, stands rejected.
The appeal is thus, allowed.
The impugned order passed by the Learned Trial Judge on 5th June, 2012 in W.P No. 2878 (W) of 2007 stands set aside.
We are informed by Mr. Lahiri, Learned advocate appearing for the appellant that though his client has been regularly rendering his service as Samprasarak in the concerned MSK till date but he has not been paid his honorarium since the time of passing of the impugned order by the Learned Trial Judge.
We thus, make it clear that the engagement of the appellant should be allowed to be continued and the honorarium including all arrears which is admissible to him for the period during which he rendered his service should be paid to him within a period of four weeks from the date of communication of this order.
In view of the disposal of the appeal in the manner as aforesaid, no further order need be passed in the stay application.
The application for stay being CAN 10319 of 2012 is thus, deemed to be disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the learned advocate for the petitioner immediately.
( Jyotirmay Bhattacharya, J ) ( Tapash Mookherjee, J.)