Rajasthan High Court - Jaipur
U O I And Anr vs C A T Jaipur And Ors on 13 August, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR DB Civil Writ Petition No.10039/12 Union of India & Anr. Vs. Central Administrative Tribunal, Jaipur & Ors. Date:13/08/2012 HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. P.C. Sharma, for petitioners.
Mr. S.S. Solanki, for respondent No.2.
Writ petition has been preferred as against the order dated 23.4.2012 passed by the Central Administrative Tribunal, Jaipur Bench in O.A. No.101/12.
The respondent No.2/applicant has filed the Original Application before the Tribunal and prayed for issuance of the order or direction to quash the notification dated 19.10.2010 and the orders dated 14.12.2010, 16.9.2011 and 19.9.2011. Prayer was also made to direct the respondents in the Original Application (petitioners herein) to re-conduct the examination in furtherance of notification dated 5.9.2008 and give promotion to the applicant to the post of JE-II TDR for the year 2008 if he is found suitable alongwith consequential benefits.
It is not in dispute that applicant had appeared in the examination held pursuant to notification dated 5.9.2008 for the post of Junior Engineer Gr.II. However, this examination was cancelled by the employer-petitioners. The applicant was eligible for aforesaid examination as per notification issued on 5.9.2008. He was declared eligible vide order dated 26.11.2008. Thereafter, another notification was issued on 7.1.2010 which was also cancelled and again notification was issued on 19.10.2010 for filling up the vacancies including vacancies of the year 2008 but the applicant was not found eligible on the ground of his becoming over-age by the time fresh notifications were issued. Earlier, the applicant has filed O.A. No.19/11 which was permitted to be withdrawn with liberty to file fresh one. However, during pendency of Original Application before the Tribunal, he was permitted to appear in the examination in which he secured 68 marks. The Tribunal in the circumstances has held that vacancies which were notified on 5.9.2008 were still available and admittedly, on the date of issuance of notification dated 5.9.2008, the applicant was eligible to appear in the examination process which was cancelled and another notification was issued on 7.1.2010 which was also cancelled and again notification was issued on 19.10.2010 but, by that time, the applicant became overage. As the vacancies were of 2008, it was directed to consider the case of the applicant treating him within age limit. Direction was also issued to open the sealed cover and take further action as per the procedure to consider name of the applicant to be included in the panel, if he is otherwise found fit. The Tribunal has relied upon decisions of this court in Mahaveer Prasad Meena Vs. Union of India & Ors. (2005(3) RLW 1844), Prakash Chand & Ors. Vs. State of Rajasthan (155) (1990(2) RLW 582 and Dalveer Singh & Anr. Vs. State (Revenue) & Anr. (SB Civil Writ Petition No.3089/11 decided on 25.5.2011) and decision of the Apex Court in State of U.P. & Anr. Vs. Santosh Kumar Mishra & Anr. (Special Leave Petition (C) No.20558 of 2009 decided on 3.8.2010). Aggrieved by the order of the Tribunal, the writ petition has been preferred by the Union of India and others.
Shri P.C. Sharma learned counsel appearing on behalf of petitioners has submitted that as relaxation of age was not prayed for by the respondent-applicant in the Original Application filed before the Tribunal once first O.A. No.19/11 was withdrawn, it was not open to him to rely upon the interim order which was passed during pendency of first Original Application since there was no provision under the rules to relax the age, it could not have been relaxed. It was also submitted that order of cancellation of examination was not challenged, as such, the Original Application was not maintainable. Prayer has been made in the Original Application for quashment of notification dated 19.10.2010.
Shri S.S. Solanki learned counsel appearing on behalf of respondent-applicant has supported the order passed by the Tribunal while relying upon the aforesaid decisions and thus, prayed for dismissal of the writ petition.
After hearing learned counsel for the parties, we are of the considered opinion that no case for interference in the writ petition is made out as substantial justice has been done by the Central Administrative Tribunal while passing the impugned order. It was not in dispute that on the date of issuance of first notification dated 5.9.2008, the applicant was within the age limit. The said notification was cancelled and fresh notification was issued on 7.1.2010, which was also cancelled and another notification was issued on 19.10.2010 wherein vacancies of 2008 were available and in 2008, applicant was within the age limit. The Tribunal relying upon the aforesaid decisions has observed in Para-11 of the impugned order as under:-
In the case of Mahaveer Prasad Meena Vs. Union of India & Ors., RLW 2005(3) Raj. 1844, the Hon'ble High Court in similar controversy held that petitioner has been deprived of his legitimate right for the post for which he was certainly eligible when the first advertisement was issued on 21.01.2002. The vacancy was indeed available at that time. Therefore, the petitioner could not be held ineligible if at the time of subsequent notification he had crossed the age limit. In the case of Prakash Chand & Ors. Vs. State of Rajasthan (155), RLW 1990 (2) Page 582, the similar view has been taken by the Hon'ble High Court in the case of recruitment to the post of Constable. The ratio laid down in the case of Dalveer Singh & Another Vs. State (Revenue) & Anr. (SB Civil Writ Petition No.3089/2011 decided on 25.05.2011) and the case of State of U.P. & Anr. Vs. Santosh Kumar Mishra & Anr. (Special Leave Petition (C) No.20558 of 2009 decided on 03.08.2010) is also squarely applicable to the facts and circumstances of this case.
We find that decisions in Mahaveer Prasad Meena Vs. Union of India & Ors. (supra), Prakash Chand & Ors. Vs. State of Rajasthan (supra), Dalveer Singh & Anr. Vs. State (Revenue) & Anr. (supra) and State of U.P. & Anr. Vs. Santosh Kumar Mishra & Anr. (supra) are clearly attracted to the facts of the instant case. We find the order passed by the Tribunal to be in accordance with law. When earlier notification and examination held was cancelled, the applicant who is departmental candidate and appeared in the examination could not have been put to disadvantage. Subsequently, the applicant was found ineligible on the ground that he has crossed the maximum age limit. The applicant could not be denied opportunity to participate in departmental examination merely on the ground of merger of some other cadres. Age relaxation of two years was not enough in the case of applicant. Applicant had been unjustly deprived of promotion to the post of J.En. Gr.II for which he was eligible when the notification was issued in 2008. Thus, he could not have been held ineligible at the time the subsequent notification was issued after merger of cadres. It is not in dispute that passing of departmental examination is necessary for promotion to the post of J.En. Gr.II. Applicant could not have been denied opportunity of staking the claim in unreasonable manner. We find that substantial justice has been done by the Tribunal.
Learned counsel for the petitioners has relied upon the decision of the Apex Court in Pitta Naveen Kumar & Ors. Vs. Raja Narasaiah Zangiti & Ors., (2006) 10 SCC 261 in which the Apex Court has laid down that after the candidates who had applied pursuant to an advertisement, were allowed to appear at a preliminary examination (screening test), another advertisement issued inviting applications from those who were eligible but could not apply in response to the initial advertisement and the applicants were allowed to appear in another preliminary examination by relaxing age limit. This was done because since several years there had been no further recruitment. Thereafter, all the candidates, who were successful in the two preliminary examinations were allowed to appear in the final examination and a combined result was announced. The Apex Court held that the object of government notifications effecting those actions was not arbitrary. By reason of age relaxation only field of choice was increased but right to be considered for appointment of those who cleared the first preliminary examination without availing the age relaxation was not affected. The decision is of no avail to petitioners.
Reliance has also been placed by the learned counsel for the petitioners on the decision of the Apex Court in Dr. Ami Lal Bhat Vs. State of Rajasthan & Ors. (1997) 6 SCC 614 in which condition of eligibility for recruitment process came up for consideration of Their Lordships. First day of January following the last date fixed for receipt of applications; the Apex Court laid down that fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is in the discretion of the rule-making authority or the employer. One must accept that such a cut-off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some on the wrong side. That cannot make the cut-off date per se arbitrary unless the cut-off date is so wide off the mark as to make it wholly unreasonable. Fixing an independent cut-off date, far from being arbitrary, makes for certainty in determining the maximum age. Unless the date is gross unreasonable, the court would be reluctant to strike down such a cut-off date. In the instant case, examination had been cancelled and respondent-applicant was unfairly deprived of staking claim for higher post. The Apex Court has also laid down in the aforesaid case that power of relaxation is required to be exercised in public interest in a given case, such as, if other suitable candidates are not available for the post and the only candidate who is suitable has crossed the maximum age limit; or to mitigate hardship in a given case relaxation can be granted. In the instant case, we find that impugned order mitigates hardship, it does not suffer from illegality.
Counsel has also relied upon decision of the Supreme Court in E. Ramakrishnan & Ors. Vs. State of Kerala & Ors., (1996) 10 SCC 565 in which it has been laid down that it would be for the appropriate forum to relax the age requirement and the applicants have to stand in the queue and get selection through the PSC. There is no dispute with the aforesaid proposition. However, in the different facts of the instant case ratio of aforesaid decision is not applicable to the facts of the present case.
Reliance has also been placed by the learned counsel for the petitioners on the decision of the Apex Court in Sanjay Kumar & Ors. Vs. Narinder Verma & Ors., Appeal (Civil) 5430-5434 of 2004, decided on 8.5.2006 so as to submit that once having appeared in the examination, the examination cannot be questioned. We find that there is deprivation in the instant case of opportunity to appear in examination hence, question of estopple is not germane.
Resultantly, we find no illegality in the impugned order. The writ petition being devoid of merits deserves to be dismissed and is hereby dismissed. Stay application No.8652/12 is also dismissed.
(NARENDRA KUMAR JAIN-I)J. (ARUN MISHRA)CJ. GS
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, PA