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2007 DIGILAW 248 (CAL)

S. SUMATHI v. UNION OF INDIA

2007-04-02

PRANAB KUMAR DEB, SANJIB BANERJEE

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SANJIB BANERJEE, J. ( 1 ) AT first flush, it appears that the contention urged is one of substance and the order of the Tribunal was erroneously arrived at. Thankfully, only the reason given in support of the order appears erroneous and n6t the order itself. ( 2 ) THE writ petitioner applied as an other Backward Classes (OBC) candidate for the post of postal assistant. The relevant authorities invited applications for two posts, one in the general category and one from OBC applicants. The relevant recruitment rules provided that the upper age limit for OBC candidates was relaxable by three years where the outside age limit had been fixed at 25 years for other candidates. There was no relaxation for OBC candidates in respect of educational or other desired qualifications. ( 3 ) THE two posts were filled up in or about the year 2000, though the date is of no relevance in the ultimate analysis. The petitioner made a belated representation before the authorities that the candidate selected from among the OBC applicants had, in fact, stood first in the combined merit list and deserved appointment on merit rather than by reservation. The petitioner who was placed second in the merit list of OBC candidates, thus, claimed to be entitled to appointment in the reserved category. ( 4 ) UPON her representation not being considered favourably by the relevant authorities or upon the same not being disposed of with reasonable despatch, she applied before the Central Administrative tribunal, Calcutta Bench, Circuit at Port Blair. Such application was dismissed by an order of June 7, 2004 on the ground of limitation. A writ petition came to be instituted by this petitioner whereupon the first order of the Tribunal was set aside and this Court requested the Tribunal to consider the matter afresh in accordance with law. Following such order of March 10, 2005, the petitioner approached the Tribunal and sought condonation of the delay caused in filing the original application before the Tribunal. ( 5 ) THE Tribunal found that there was no reasonable explanation as to the inordinate delay and recorded a finding that the cause shown was insufficient and warranted rejection. The Tribunal, nevertheless, proceeded to consider the merits and, on the basis of a Government Circular of July 1,1998 found the petitioner's case unmeritorious. ( 5 ) THE Tribunal found that there was no reasonable explanation as to the inordinate delay and recorded a finding that the cause shown was insufficient and warranted rejection. The Tribunal, nevertheless, proceeded to consider the merits and, on the basis of a Government Circular of July 1,1998 found the petitioner's case unmeritorious. The following extract from the relevant Government memorandum was relied upon: - "it is clarified that only such SC/st/obc candidates who are selected on the same standard as applied to genera! candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/st/obc candidates, for example in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates etc, the SC/st/obc candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies. " ( 6 ) IT is evident from the records that one Chintala Yarrana secured the highest marks among all the applicants in the examinations conducted for selecting the appropriate personnel. It is also an undisputed position that Yarrana applied in the OBC category but did not need the benefit of relaxation in age. ( 7 ) THE original case run by the petitioner before the Tribunal and before this Court is somewhat altered at the final hearing. As noticed above, the petitioner's grievance was that Yarrana should have been selected as the most meritorious candidate and the petitioner ought to have been appointed as the best placed in the OBC category. It is now asserted that in seeking to support the selection of the two persons for the posts, the authorities had revealed facts which would disentitle Yarrana from claiming his post. Both before the Tribunal and before us, the respondent authorities have sought to justify their action by suggesting that the norms were relaxed for Yarrana and upon such relaxation of norms, his candidature could no longer be considered from the category of outsider or general candidates. The relevant authorities submit that Yarrana did not turn up for the computer examination and upon his having secured no marks in one of the several tests, he was ineligible to be considered at all. The relevant authorities submit that Yarrana did not turn up for the computer examination and upon his having secured no marks in one of the several tests, he was ineligible to be considered at all. It is further urged by the appointing authority that since Yarrana was an OBC candidate, such transgression of missing the computer test was overlooked and the relevant norms were relaxed to permit him to progress to the second stage of selection - that of objective test and interview. ( 8 ) THE petitioner now contends that since the recruitment rules did not permit such relaxation and it is the appointing authority's case that yarrana was otherwise ineligible upon his having missed the computer test, Yarrana was altogether unfit to be considered for the post. The petitioner now founds his right to be appointed from the OBC category by asserting that Yarrana stood disqualified. ( 9 ) THE appointing authority questions such change of tack by the petitioner. The principal prayer before the Tribunal and the main relief claimed in these proceedings are cited to ward of the new-found challenge. But, it is not necessary to adjudicate upon the permissibility of the present challenge, if it is otherwise found to be undeserving. ( 10 ) THE Tribunal's reasons for negating the petitioner's case are found in the two sentences preceding the one in which the relevant government memorandum has been quoted: - "as Shri Yarrana failed to secure any credit mark for computer knowledge, he was not eligible for selection under O C category, and, therefore, by relaxed standard, he could be offered appointment. It is because he had enjoyed the benefit of relaxed standard under the rules framed for the purpose of reservation by govt. of India, Deptt. of Personnel and Training O. M. No. 36011/1/98- estb. (RES) dated 1. 7. 98, he was taken as an OBC candidate. " ( 11 ) THE argument put forward by the appointing authority and accepted by the Tribunal was fallacious. The relevant recruitment rules did not permit relaxation of any norm other than the age-limit. Thus, no additional relaxation of the rules or the requirements for selection could be made for any candidate, reserved or general. " ( 11 ) THE argument put forward by the appointing authority and accepted by the Tribunal was fallacious. The relevant recruitment rules did not permit relaxation of any norm other than the age-limit. Thus, no additional relaxation of the rules or the requirements for selection could be made for any candidate, reserved or general. The appointing authority's anxiety to urge such ground was to justify the appointment of Yarrana despite the appointing authority's interpretation of the procedure for selection being that every candidate had to take every part in the five- part, two-stage examination to be eligible for selection. Such interpretation of the selection process is without basis. It was only the aggregate that would decide the best and if a candidate was good enough to secure the highest aggregate despite missing a part, he was entitled to the post. There was no additional relaxation that was needed to be made for Yarrana and, consequently, there was no need to justify the decision to allow yarrana to participate in the second stage of the examination as he was, on the combined marks of the three-part first stage, one of the top five in the reserved category and fit to progress to the next phase. ( 12 ) IT was such stand of the appointing authority that the petitioner pounced upon to suggest that as it was being urged that some relaxation was made for Yarrana, beyond what was permitted by the rules, Yarrana's appointment was bad. It now remains for the petitioner's original contention to be tested: whether Yarrana was entitled to jump from the reserved category to the general category on his merit. ( 13 ) THE relevant Government memorandum provides that "when a relaxed standard is applied in selecting SC/st/obc candidates. . . the SC/ st/obc candidates are to be counted against reserved vacancies. " In this case, there was relaxation in the recruitment rules as to age limit. The relevant memorandum took within its fold all manners of relaxation including age limit. The last sentence of the relevant part of the memorandum provides that candidates, who have applied in a reserved category where relaxation has been permited on any count, would be considered only against reserved vacancies. The relevant memorandum took within its fold all manners of relaxation including age limit. The last sentence of the relevant part of the memorandum provides that candidates, who have applied in a reserved category where relaxation has been permited on any count, would be considered only against reserved vacancies. The expression "such candidates" appearing in the last sentence would not mean such candidates as had obtained benefit of the permitted relaxation, but would apply to such candidates as had applied in the reserved category where relaxation was permitted. The operative words are "when a relaxed standard is applied in selecting SC/st/obc candidates. . . " The "relaxed standard" in the invitation for a post would decide whether an applicant in the reserved category therefor could jump, on merit, to the general category; whether the individual reserved category candidate actually obtained the benefit of the relaxation would be no consideration. In the event, however, there are recruitments to posts without any relaxation on any ground afforded to the candidates applying for the number of posts reserved for special categories, then the toppers from candidates applying under the reserved category could claim one or more of the unreserved posts if one or more of them fared better than the best candidate or the eligible candidates in the unreserved category. ( 14 ) THERE is sound logic behind the Government clarification in the relevant memorandum. At the time of scrutiny of applications received for the posts of which some are reserved, admit cards would be issued to eligible applicants merely by verifying whether they maintained the minimum requirements. If, say, the reserved candidates are allowed relaxed norms as to age limit, educational qualifications and experience, the scrutineer has only to satisfy himself as to the eligibility of the applicant and make over to him the ticket to participate in the examination, whatever the form thereof. There is no further special category carved out from among the reserved applicants as to those that would be eligible to apply in the other category but had sought appointment to the reserved post. ( 15 ) DOUBTLESS that applicants who are found worthy to proceed to the second stage of the selection process would have their applications subjected to closer scrutiny than the exercise carried out at the counter at the initial stage of receipt of the applications. ( 15 ) DOUBTLESS that applicants who are found worthy to proceed to the second stage of the selection process would have their applications subjected to closer scrutiny than the exercise carried out at the counter at the initial stage of receipt of the applications. But, if applicants from the reserved category were permitted to jump on merit to the general category, there would be undesirable consequences that the Government clarification seeks to avoid. ( 16 ) SUPPOSE, for the ten posts for which applications are invited in a case, two are reserved with relaxed norms. Say, the recruitment rules require, as in the instant case, that the number of applicants that should be called for the second stage should be five times the number of posts available in the respective categories. Suppose again, that all ten reserved candidates in our given case secure higher marks at the first stage than the best in the general category. It is then possible that the failed applicants in the reserved category have more or about the same marks as the best in the general category such that it would be theoretically possible for the unsuccessful reserved applicants to overhaul the best applicant from the general category if they were permitted to progress to the second stage. Suppose also, that most of the reserved applicants, including some of those found unworthy to be called for the second stage, did not require relaxation in norms and could have applied for the posts in the general category. If the clarification were to be interpreted to mean that applicants from the reserved category who did not obtain the benefit of the relaxed norms would, in our given case, be required to be invited to participate in the second stage even if they were outside the top ten of the meritorious applicants in their category at the end of the first stage, it would then call for all the applicants from the reserved category better placed than those found eligible in the general category to be treated as part of general category and they could, consequently, oust the toppers from the original general category. Such an anomalous situation is not contemplated by the clarification. ( 17 ) IT appears, therefore, that Yarrana was rightly selected as the most appropriate candidate from the reserved category. Such an anomalous situation is not contemplated by the clarification. ( 17 ) IT appears, therefore, that Yarrana was rightly selected as the most appropriate candidate from the reserved category. Since, there was only one vacancy for the post from the reserved category, upon Yarrana's selection, the petitioner could have no grievance. ( 18 ) FOR the record, it is to be noted that the oft-cited decision reported at AIR 1987 SC 1353 was placed by the petitioner to suggest that an application under Section 5 of the Limitation Act should be liberally considered. This was placed to attack the Tribunal's rejection of the prayer for condonation of delay. But, it is irrelevant in the context of the decision that the Tribunal rendered on merits and a decision that, though for different reasons, we uphold. ( 19 ) THE writ petition is dismissed. There will be nor order as to costs. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with all requisite formalities.