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2010 DIGILAW 1239 (CAL)

Dipak Kumar Mallick v. UNION OF INDIA

2010-10-04

BHASKAR BHATTACHARYA, J.N.PATEL

body2010
Judgment : J. N. Patel, C.J. Heard the learned Counsel for the parties. These two appeals are directed against the judgment and order dated 30.9.2004 in W.P. No. 4911(w) of 1997, and judgment and order dated 22.6.2005 in WP. No 5582(w) of 2005 filed by the original writ petitioners. The learned counsel for the parties submitted that both the appeals can be heard and disposed of by a common judgment and order as these pertain to seeking appointment in Durgapur Steel Plant which is an undertaking of Steel Authority of India and related to notification dt. 14.2.1997 due to which appellant/petitioners were disqualified from being considered for employment. Hence these appeals are disposed of by common order. The appellant/writ petitioners registered their names in the Office of Employment Exchange of Durgapur as they were duly qualified. It is the case of the writ petitioners that they belong to backward class that is, writ petitioners 1 to 9 belong to schedule caste and 10 to 11 belong to OBC category. It is their case that during the year 1993 to 1997, the respondents, Durgapur Steel Plant (hereinafter referred to as DSP) called for names from the Employment Exchange of Durgapur of the candidates to fill up the vacancy in the post of Junior TOT and Senior TOT and alongwith others petitioners name were sent pursuant to which petitioners received letters to appear in the written examination. After having passed the written examination they were called for interviews, but the results were not declared. Subsequently, further names were called for the candidates to fill up the vacancy in the said post and by notice dated 14.2.97, it was informed that candidates who were already being considered twice for the said post would not be considered (the notification dated 14.2.97 is Annexure A to the petition). Subsequently, further names were called for the candidates to fill up the vacancy in the said post and by notice dated 14.2.97, it was informed that candidates who were already being considered twice for the said post would not be considered (the notification dated 14.2.97 is Annexure A to the petition). Therefore, the petitioners invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India are seeking a writ of mandamus commanding the respondents as to why the impugned notice being Annexure A should not be set aside, cancelled or quashed and directing the respondents to carry forward and maintain roster for filling up of post by direct recruitment by giving due advantage to candidates belonging from backward class by ignoring the restriction imposed by Annexure A and by relaxation of age for appointment as directed by O.M. No. 31/10/63 SCt/1 dated 27th March, 1963 and 2nd May, 1963, 24th April, 1970 and 24th May, 1983, O.M. No. 36912/22/93/Estt (SCT) and O.M. No. 36012/22/93/Estt (SCT) 29.10.1993 and 3rd October, 1981 and for subsequent period. In the subsequent WP No. 5582(w) of 2005, the appellant/writ petitioners have challenged the selection process primarily on the ground that their candidature was not considered inspite of the fact that they belong to backward class that is schedule caste and other backward caste inspite of the that the advertisement vide No. DSP/pers/SC STSRD/2004/1 was special recruitment drive for schedule caste schedule tribe and backward caste. The main contention of the writ petitioners was that there was no necessity of conducting special drive of recruitment of the schedule caste schedule tribe and backward caste in the year 2004 for regularization of the backlog as according to the petitioners if the posts meant for backward castes could not be filled in, in the year 1997 by virtue of restrictions imposed upon the petitioners by notice dated 14.2.97 that candidates who have been considered twice for the said post Junior TOT did not qualify for consideration. This according to petitioner/appellant resulted in pushing them to a disadvantaged position as they crossed the age of 32 years by the time the advertisement of 2004 was published wherein maximum age-limit for candidates of backward castes was prescribed as 32 years. Therefore, the respondents acted mala fide and arbitrarily for not considering the constitutional provisions under Article 335 and 46 of the Constitution of India. Therefore, the respondents acted mala fide and arbitrarily for not considering the constitutional provisions under Article 335 and 46 of the Constitution of India. According to the appellant/writ petitioners, they are victim of discrimination as in the year 2004, the respondents permitted all candidates who appeared for recruitment in the special drive for schedule caste schedule tribe and backward caste candidates though this was restricted in the year 1997 by not permitting candidates who are already considered twice for the said post due to the notice dated 14.2.97. Therefore, according to the appellant/writ petitioners, if the restriction indicated in the notice dated 14.2.97 would not have been in the field then the appellant/writ petitioners could have appeared in the written test and could have been selected but as the appellant/writ petitioners have been precluded from appearing in the written test by imposing unreasonable restriction that they have become overage and lost opportunity to appear in the special drive of recruitment undertaken in the year 2004. Therefore, the petitioners claim that they should be permitted to appear in the written test and interview of the examination conducted for recruitment of backward caste candidates so as to fill the backlog pursuant to the advertisement No. DSP/pers/SC STSRD/2004/1 by considering their permissible age limit as on 14.2.97. On the other hand, it was the case of the respondent No. 1 to 4 that for selection process of candidates in the said post of Junior TOT in the DSP, the local Employment Exchange of Durgapur was approached to sponsor eligible candidates for the said post which is made on the basis of marks obtained by the candidates in written examination with due relaxation to candidates belonging to reserve categories. It was their case that candidates for both reserve and unreserved categories who qualified were sent for medical examination and those who did not qualify were not issued any call letter. It is stated that the candidates who were unsuccessful were not separately and individually intimated of their results in the written test and interview and as the petitioners were unsuccessful candidates, they were not informed of their results. It is further contended that the Employment Exchange of Durgapur was asked not to sponsor the names of candidates who were already considered twice for the said post of Junior TOT. This was done with the object of drawing fresh candidates for selection process. It is further contended that the Employment Exchange of Durgapur was asked not to sponsor the names of candidates who were already considered twice for the said post of Junior TOT. This was done with the object of drawing fresh candidates for selection process. It is contended that due relaxation in age and selection criteria was given to candidates in reserve category in the selection process for the post of Junior TOT in DSP as per the Government directive, and reservation was also given as per Government directive. It is contended by the respondents that Employment Exchange of Durgapur could sponsor the names of candidates who belong to OBC as per the reserved quota, against the reserved candidates for the said post in 1995 and thereafter, copies of the Government guidelines (Annexure A) were received by the DSP which they have followed and that the recruitment for the said post has been done as per the roster for reserve categories. It is specifically denied that the restriction imposed by asking the Employment Exchange of Durgapur not to sponsor candidates who have been twice considered for the said post, the Management had conferred or intended to confer any benefit to higher caste depriving the weaker section as alleged. It is, therefore, submitted that there is no obligation on the part of the respondents to consider the same candidates repeatedly and those who burden the process of selection. It is also brought on record that in order to clear the backlogs in schedule caste and schedule tribe categories special recruitment drive was initiated as per the government directive. The petitioners who have been given fair chance for the post of Junior TOT in the selection process, have failed to qualify themselves inspite of giving relaxation according to the rules applicable to the reserve category, they have not succeeded on merits. Therefore, the petitioner is mainly trying to camouflage their own failure to qualify for selection as Junior TOT making baseless allegation. The petition deserves to be dismissed. Therefore, the petitioner is mainly trying to camouflage their own failure to qualify for selection as Junior TOT making baseless allegation. The petition deserves to be dismissed. By the time, the petition was taken up for decision by the learned Single Judge, it was found that the recruitment process was over as there was no interim order and, therefore, the limited grievance of the petitioners were restricted to the issue of the impugned notice that is, “candidates who had already being considered twice as TOT under DSP not to be considered as per requisition of DSP”. This notice was issued by the sub-regional Employment Exchange of Durgapur at the instance of respondent employer. At the time of hearing it was brought to the notice of the Learned Single Judge that in the subsequent employment notice the said restriction does not find place so petitioners who are otherwise eligible are entitled to apply. The Learned Single Judge found that due to subsequent events, the question as regards restriction has become academic and as the writ court does not decide such matter by making an observation that since the question is of importance, it should be left open for decision in future in an appropriate case, if occasion arises and dispose of the petition as infructuous. The appellants/writ petitioners have impugned the order mainly on the ground that the trial court failed to take into consideration the notice dated 14.2.97 issued by the Employment Exchange of Durgapur in which it was indicated that the candidates who were already considered twice in the said post in the DSP, would not be considered as per requisition of DSP and therefore, the selection should have been set aside and so also the notice imposing unreasonable restriction and stipulation on the Employment Officer of Employment Exchange of Durgapur, the same being violative of Article 16 of the Constitution of India. The learned counsel for the parties submitted their written arguments. The learned counsel for the parties submitted their written arguments. It is the case of the appellants/writ petitioner that the notice dated 14.2.97 is in violation of Article 16(1) and 16(4) of the Constitution of India and that the court has ignored the well settled principle laid down by the Supreme Court in the case of Indra Sawhney vs. Union of India [1992 (Supp) 3 SCC 217] wherein it was held that “whether a particular class is adequately represented in the Services under the State is a matter within the subjective satisfaction of the appropriate Government based on materials in possession of the Government and the existing condition of the society. In the case of K. C. Vasanth Kumar vs. State of Karnataka [AIR 1985 Supreme Court 1495] wherein it was held that the State has to take care of the backward classes. In the case of Shrilekha Vidyathi vs. State of U.P. [AIR 1991 Supreme Court 537] wherein it was held that in order to satisfy the test of Article 14 every state action must be informed by reasons and actions taken prejudicially against a person is arbitrary if there is no reason. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. In the case of Ogla Tellis vs. Bombay Municipal Corporation [AIR 1986 Supreme Court 180] wherein it was held that there can be no waiver of fundamental rights. No individual can barter away the freedom conferred upon by our constitution. In the case of Brun vs. Amalgamated Engineering Union {(1971) 2 QB 175} wherein it was held that the discretion of a statutory body is never unfettered. It is a discretion which is to be exercised in accordance to law. The statutory body must be guided by relevant consideration. If its discretion is influenced by extraneous consideration which it ought not to have taken into account then the decision cannot stand. No matter that the statutory body may have acted in good faith, nevertheless, the decision will be set aside. In the case of Satwant Singh vs. Assistant Passport Officer [AIR 1967 Supreme Court 1836] wherein it was held that Article 14 is the aspect of the rule of law. No matter that the statutory body may have acted in good faith, nevertheless, the decision will be set aside. In the case of Satwant Singh vs. Assistant Passport Officer [AIR 1967 Supreme Court 1836] wherein it was held that Article 14 is the aspect of the rule of law. Every Executive action if it is to operate to the prejudice of a person must be supported by some legislative authority, what a legislative action would not do executive could not do so, also. In the case of Jai Singhani vs. U.O.I. [AIR 1967 Supreme Court 1427] wherein it was held that if a decision is taken without any principle or without any rule then it is impractical and such decision is the antithesis of a decision taken in accordance with the rule of law. The authorities cited at Bar by the learned counsel for the appellants in their written submissions are not germane to the issue before us as these relates to relaxation of marks for qualifying the examinations and that the court has power of judicial review of the issues raised in the petition and that there is no estoppel against or in favour of fundamental right, though petitioners appeared for written examination and oral interview cannot be said to have accepted the said restriction which according to them is in contravention of Article 14, 19 and 21 of the Constitution of India. The learned Counsel for the respondents submitted that the object of placing such restriction mentioned in the notice dated 14.2.97 was to draw fresh candidates from all the categories both reserved and unreserved and that there is no bar to make such regulation under Article 14 and 16 of the Constitution of India. Therefore, there is no violation of fundamental and constitutional right of the petitioners and the appeal deserves to be dismissed. It was also contended before us that at the time of hearing of the petition by the Learned Single Judge the learned counsel for the petitioners mistakenly submitted that nothing has remained in the writ petition and the same have been accepted. We do not think that such a ground can be raised in appeal for the first time and even otherwise considering the facts of the case at the time the writ petition was taken up for final hearing the recruitment process was over and virtually the writ petition had become infructuous. We do not think that such a ground can be raised in appeal for the first time and even otherwise considering the facts of the case at the time the writ petition was taken up for final hearing the recruitment process was over and virtually the writ petition had become infructuous. Therefore, it cannot be said that the counsel for the appellant made a concession compromising the fundamental rights of the writ petitioners. The only point which arises for determination is whether the appellant/writ petitioners were deprived of their right to participate in the selection process due to the restriction imposed by the impugned notice dated 14.2.97 restricting the number of attempts for participating in the selection process. The notice dated 14.2.97 provided that candidates who had already being considered twice for the said post under DSP will not be considered as per requisition of DSP cannot be said to be unreasonable so as to attract the vice of arbitrariness. It is the case of the respondents that they have restricted the selection process with the object of drawing fresh candidates from both reserved and unreserved categories for consideration and this was only for the selection which was held as per the requisition under 1997 as during the subsequent selection the same had been withdrawn. One of the important elements of the right to equality is reasonableness and in service jurisprudence imposing such restriction in the selection process is a common feature. We have seen that restricting candidates to apply for selection to a particular post to a limited attempt is not unknown in employment and is common in cases of civil services examinations, where the number of attempts is restricted. Even this principle is applied to entrance examination for professional courses like medical and engineering. In the present case, the restriction has been applied to candidates belonging to both reserve and unreserved class. But that by itself would not make it unreasonable. In the present case, it is the contention of the appellant/writ petitioners that this restriction has been placed with an object to deprive candidates belonging to reserved category from participating in the selection process so as to give advantage to candidates belonging to unreserved categories and thereby creating the backlog. We do not find any substance in this contention of the appellant, that this was done to discriminate candidates like the petitioners. We do not find any substance in this contention of the appellant, that this was done to discriminate candidates like the petitioners. In the second case, the main challenge was to the order issued by the Deputy Manager, Personal of Steel Authority of India Limited, DSP dated 30.11.2004 by which the appellant/writ petitioners were informed that they do not fulfill the eligibility criteria with respect to age stipulated in the above notification/advertisement for the caption post. Admittedly, the petitioners have crossed the maximum age which was stipulated in the notification/advertisement as 32 years and therefore, the application for their candidature for the recruitment of the said post could not be considered. The Learned Single Judge found that the contention of the appellant/writ petitioners that they have been denied opportunity of offering candidature in the past on an invalid ground, therefore, at the present moment the authority is not entitled to say that having crossed the age of 32 years, the petitioners would not be eligible for the said post, was not accepted and rightly so as the eligibility condition of recruitment in respect of the age of the candidate was that he should not cross 32 years of age and the petitioners have crossed the age bar. In the case of Sanjay Kumar Manjul vs. Chairman, UPSC [ 2006 (8) SCC 42 ], the Supreme Court observed that statutory authority is entitled to frame the statutory rules laying the terms and conditions of service and also the qualifications essential for holding the particular post and it is only the authority concerned which can take the ultimate decision. It is further observed that “it is well settled that the superior courts while exercising their jurisdiction under Article 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post”. We have already stated that the aforesaid restriction do not violate Article 16 of the Constitution of India which is a constitutional right to equality of opportunity and employment in public offices. Such restriction as to number of attempts do not in any manner deprive a person of his right to seek employment in Office and can be said to be arbitrary or discriminatory. Therefore, we do not find any merit in the appeals. Both the appeals are dismissed with no order as to costs. I agree.