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2014 DIGILAW 549 (GAU)

Majahar Hussain v. State of Assam

2014-05-20

TINLIANTHANG VAIPHEI

body2014
Judgment Tinlianthang Vaiphei, J. 1. In this writ petition, the petitioner is questioning the legality of the appointment of the respondent No. 7 to the post of Junior Assistant in the Office of the Executive Engineer, PHED, Government of Assam, North Lakhimpur Division, Japisaijiya (respondent 5). The controversy arose on the following facts and circumstances. In response to the advertisement dated 1-12-2012 issued by the respondent No. 5 inviting applications from interested candidates for filling up one post of Junior Assistant in his office, the petitioner applied for the same. He is eligible for the post of Junior Assistant. He was subsequently called for and took part in the written examination and qualified for the interview scheduled for 27-6-2013. He accordingly appeared before the Selection Committee and is under the impression that he did quite well in the interview as he was able to correctly answer all the questions asked by the Committee. On the basis of his performance, he had been legitimately expecting that he would make it to the final select list. In the interview, three other persons, namely, (1) Shri Rubul Borah, (2) Shri Lalon Pathori and (3) Shri Pranjal Panging had also appeared in the interview. When no result of his interview was made for sometime, he made an enquiry and found to his dismay that the respondent No. 7 had been selected and appointed to the post of Junior Assistant. According to the petitioner, no select list was ever published by the respondent authorities. After facing considerable difficulties, he managed to obtain the result of the written test of both Junior Assistant and Section Assistant declared by the Selection Committee vide the Memorandum dated 25-6-2013 and the total marks obtained by him and the three other candidates. It is the allegation of the petitioner that the following are the marks obtained by him and the three other candidates: Roll No. Name of Candidates Total marks obtained Position 19 Shri Majahar Hussain (instant writ petitioner) 98.10 I 81 Shri Pranjal Panging 97.60 II 01 Shri Bubul Borah 86.70 III 46 Shri Lalon Pathori 79.60 IV 2. Thus, according to the petitioner, having scored 98.10 marks, he secured the highest marks amongst the four candidates in the selection process, and is, accordingly, entitled to appointment to the post of Junior Assistant. Thus, according to the petitioner, having scored 98.10 marks, he secured the highest marks amongst the four candidates in the selection process, and is, accordingly, entitled to appointment to the post of Junior Assistant. It is contended by the petitioner that the respondent authorities have acted discriminatorily, arbitrarily and illegally appointed the respondent No. 7 by overlooking him. The appointment order dated 29-6-2013, which was obtained by him subsequently, reveals that the respondent No. 7 was appointed to the said post two days after the interview was held. He thereafter made a representation to the respondent No. 5 projecting his grievances and pray for his appointment to the said post, but the same has not been attended to till now. He is, therefore, compelled to file this writ petition for appropriate orders. 3. The writ petition is opposed by the State-respondents as well as the respondent No. 7 by filing their respective affidavits-in-opposition. The State-respondents in their affidavit do not dispute that the petitioner scored the highest mark, but the respondent No. 7 was appointed when the petitioner was found to be overage: the decision of the Selection Committee is final. The State-respondents, however, submit that the decision of this Court would be honoured by them. As for the respondent No. 7, all that he said is that he has already joined the post on 1-7-2013 and that cancelling his appointment under the circumstance would cause irreparable loss, harm and injury to him. 4. In so far as the issue of overage is concerned, the petitioner in his reply affidavit clarifies that as he was conscious of this fact, he had also, at the time of submission of the application for the appointment, filed the representation dated 12-12-2012 to the respondent No. 4 disclosing the said information and prayed for relaxing the upper age limit for the post and allowing him to participate in the selection process. Though the respondent No. 4 and 5 evidently knew of his being overage, they allowed him to participate in the selection process. In view of this, the petitioner has along been under the impression that his overage was deemed to have been condoned, which cannot now be repudiated by them: the respondent authorities are now estopped from disqualifying him. Though the respondent No. 4 and 5 evidently knew of his being overage, they allowed him to participate in the selection process. In view of this, the petitioner has along been under the impression that his overage was deemed to have been condoned, which cannot now be repudiated by them: the respondent authorities are now estopped from disqualifying him. Moreover, according to the petitioner, there is a provision in the Office Memorandum dated 4-1-1992 permitting relaxation of the upper age limit up to the age of 45 years from 40. 5. There is no dispute that the petitioner scored the highest marks among the candidates including the respondent No. 7 and that at the time of submitting the application for the recruitment examination, he had filed an application on 12-12-2012 to the respondent No. 4 wherein he, while disclosing that he was about 40 years old at the time of the advertisement as against the upper age limit of 38 years, at the same time requested him to relax the upper age limit so as to enable him to participate in the recruitment examination. A copy of the said application is annexed at Annexure/R-1 to the affidavit-in-reply. There is also no dispute that there is an Office Memorandum dated 4-1-1992 issued by the Secretary, Department of Personnel (B), Government of Assam, relaxing the upper age limit for recruitment to civil services of civil posts in Assam to 45 years. The Office Memorandum was issued modifying the earlier Office memorandum dated 27-3-1980 and is reproduced below: "GOVERNMENT OF ASSAM DEPARTMENT OF PERSONNEL; PERSONNEL(B) DISPUR : : GUWAHATI No. ABP. 73/89/17-A: Dated Dispur, the 4th January, 1992 OFFICE MEMORANDUM The undersigned is directed to invite attention to the instructions contained in this Deptt's No. ABP 513/79/9 dated 27-3-1980 and to state that after careful consideration of all aspects of the matter Government have further decided that the relaxation may be granted up to the age of 45 years instead of 40 years as mentioned in sub-para (3) of para 2 of the aforesaid O.M. in accordance with the procedure prescribed in the said O.M. And consequent upon the above decision the age limit of years indicated in O.M. No. ABP. 73/89/1 dated 29-889 may also be treated as raised to 45 years. Sd/- J. Chakrabarty, Secretary to the Government of Assam, Personnel (B) Department." 6. 73/89/1 dated 29-889 may also be treated as raised to 45 years. Sd/- J. Chakrabarty, Secretary to the Government of Assam, Personnel (B) Department." 6. As already noticed, though the petitioner was undoubtedly overage at the time of submitting the application for the recruitment examination, yet he was allowed to participate in that examination and scored the highest total marks exceeding the total marks obtained by the respondent No. 7. It is nobody's case that the petitioner had concealed the fact he was overage. On the contrary, he disclosed this vital fact in his application dated 12-12-2012 to the respondent No. 4 when he sought for relaxing the upper age limit of 38 years. The question to be determined now is whether the respondent authorities are estopped from disqualifying the petitioner on the admitted facts and circumstances of this case. The principle of estoppel came up for consideration before the Full Bench of the Madhya Pradesh High Court in Bal Krishna Thvari v. Registrar of Awadesh Pratap Singh, University, Rewa & Ors., AIR 1978 MP 86 . In that case, the Registrar of the University intimated to the petitioner as far back as in December, 1975 that he was eligible to appear in the LL.B. (Part-I) examination. This was even before his application on the prescribed pro forma was filed. Further, the University admittedly issued an admission card permitting the petitioner to appear in that examination. Above all, the petitioner received the admission card and he appeared in all the papers from first to last 'without anybody objecting to his appearance. It was only subsequently that he got intimation by post directly from the University that his admission card was cancelled. He got intimation of cancellation of his admission card in his village after he had taken the whole of the examination. Admittedly, that was not a case of any fraud practiced upon the University of College authorities. It was not as if he had misstated any facts or had suppressed any facts. It also does not appear that there was any collusion between the petitioner and any of the University authorities. The following observations of the Madhya Pradesh High Court are illuminating as well as instructive: "Cases where occasion arises for refusal to permit a candidate to appear in an examination or cancel his examination may broadly be categorized thus: 1. It also does not appear that there was any collusion between the petitioner and any of the University authorities. The following observations of the Madhya Pradesh High Court are illuminating as well as instructive: "Cases where occasion arises for refusal to permit a candidate to appear in an examination or cancel his examination may broadly be categorized thus: 1. Where the candidate practiced fraud on the authorities, or was guilty of misstatement or suppression of facts in his application form on the basis of which admission to examination was granted; 2. Where there is some technical defect in the filling of the form or where there was any deficiency, such as shortage in attendance, which defect or deficiency could be condoned by the authorities in exercise of discretion vested in them under the statute, rules or regulations; 3. Where the candidate was patently ineligible on the particulars supplied by him; and 4. Where the question of eligibility depends upon interpretation of any provision of law, or rules or regulations having the force of law, and two interpretations are reasonably possible. In our opinion, (i) in the first category of cases no question of estoppel arises. The authorities will be within their rights to cancel the admission card or the examination on the discovery of fraud. This is because a person, who practise fraud or makes misstatement or suppresses material facts cannot claim estoppel. Fraud vitiates everything, (ii) In the second case, if admission card has been issued to the candidate and he has appeared even in one paper of the examination, estoppel will operate against the authorities. The reason is that the authorities will be deemed to have represented to the candidate that the defect has been cured or the deficiency has been condoned. Where the examination has not yet begun, whether the authorities will be estopped from cancelling the admission card will depend upon the facts of each case, (iii) In the third category of cases, there will be no estoppel, the principle being that there can be no estoppel against the statute. For instance, if the candidate has not passed the B.A. examination and has applied for LL.B. examination, even if an admission card has been issued and even if the candidate has stated the facts truthfully, the authorities will be entitled to cancel the admission card and the examination. For instance, if the candidate has not passed the B.A. examination and has applied for LL.B. examination, even if an admission card has been issued and even if the candidate has stated the facts truthfully, the authorities will be entitled to cancel the admission card and the examination. (iv) It will depend upon the peculiar facts of each case falling under the fourth category whether or not estoppel will operate against the authorities to cancel the examination once a candidate has appeared in a single paper. In such a case, the authorities may be deemed to have accepted the other possible interpretation, which is in favour of the candidate. The present case falls under the fourth category. We have pointed out above that the interpretation of the expression "ex-student candidate" admits of two reasonable interpretations, when examined in the light of all the relevant definitions. The petitioner first received permission from the Register as far back as in December, 1975. Secondly, admission card was received by the University and delivered to the petitioner through proper authority. The petitioner appeared in and took the entire examination. In these circumstances, the University could riot turn around and say that there was a mistake in issuing the admission card on the other possible interpretation of the definitions. This is a case of promissory estoppel." 7. In the instant case, there is no question of fraud practiced upon the respondent authorities, nor is the petitioner guilty of misstatement or suppression/misrepresentation of materials. In fact, he disclosed the deficiency in his age to the respondent No. 4 while seeking relaxation of the upper age limit for him. As already noticed, in terms of the said Office Memorandum dated 4-1-1992 issued by the Department of Personnel (B), Government of Assam, there is already a provision for condonation of the deficiency in the age of the petitioner, which he had sought for vide Annexure-R/1 at or about the time of submitting his application for the post in question. Neither is this a case where the petitioner is found to be ineligible for the post. It is also not the case in which the question of his eligibility depends of the interpretation of any provision of law or rules or regulations. Under the circumstances, I hold that the case of the petitioner falls under the second category of the cases laid down in Bal Krishna Thoari case (supra). It is also not the case in which the question of his eligibility depends of the interpretation of any provision of law or rules or regulations. Under the circumstances, I hold that the case of the petitioner falls under the second category of the cases laid down in Bal Krishna Thoari case (supra). 8. That apart, instead of rejecting the candidature of the petitioner, the respondent authorities should have given an opportunity of hearing to him before taking such a drastic step. After all, the petitioner was undoubtedly found to be scoring the highest total marks among the candidates including the respondent No. 7. Had he been afforded such an opportunity, he could have profitably placed the said Office Memorandum before the respondent authorities which could have easily dissuaded them from denying the appointment to him: principles of natural justice have been violated thereby in this view of the matter also, the impugned decision of the respondent authorities cannot be sustained in law. At this stage, it may be noted that no other ground has been urged by any of the respondents to disqualify the petitioner for appointment to the post of Junior Assistant. As the discretion of the respondent authorities has reduced to such an extent that only one choice is left, this is a case in which a positive direction can be issued by this Court. Union of India v. Anglo-Afghan Agencies, AIR 1968 SC 718 . For what has been stated in the foregoing, this writ petition is allowed. The impugned order dated 29-6-2013 issued by the respondent No. 5 appointing the respondent No. 7 to the post of Junior Assistant is hereby quashed. Let a writ of mandamus issue calling upon the respondent authorities to appoint the petitioner to the post of Junior Assistant under the North Lakhimpur Division, PHE Division, North Lakhimpur subject to production by him of medical fitness certificate and police verification report. The entire exercise shall be carried out by the respondent authorities within a period of two months from the date of receipt of this judgment.