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2015 DIGILAW 1485 (GAU)

Bodrul Islam Chowdhury v. State of Assam

2015-12-03

T.VAIPHEI

body2015
JUDGMENT : In this writ petition, the petitioner is questioning the decision of the Director of Elementary Education, Assam (respondent 4) in no appointing him to the post of Sub-Inspector of Schools despite his selection for the post by the Selection Committee duly constituted by him. 2. In response to the advertisement dated 10-1-2014 issued by the respondent No. 4 inviting applications from candidates amongst Assistant Teachers of provincialized/Government Schools for the posts of Sub-Inspector of Schools, the petitioner, who is otherwise qualified, applied for one of the 128 posts so advertised. The advertisement stipulated that the candidate, among others, must have B.T./B.Ed. degree with at least 5 years of teaching experience in any provincialized/government schools with the upper age limit up to 40 years as on 1-1-2014 for general candidates. As the petitioner had already attained 47 years on the date of the advertisement, he submitted an application to the respondent No. 2 on 1-2-2014 seeking condonation of his overage to enable him to participate in the ongoing recruitment process for the said posts. The respondent No. 2 forwarded his application to the respondent No. 4 for doing the needful vide the letter dated 9-5-2014. In the meantime, he was allowed to and duly appeared before the Interview Board on 20-10-2014. When the final select list of 112 candidates was published on 23-7-2015, the name of the petitioner found a place at Serial No. 51. However, in the notification dated 30-7-2015 issued by the respondent No. 4, 107 out of 112 candidates were appointed leaving out the petitioner and 4 other candidates. On enquiry, he found that he was not appointed for the post on the ground that he found to be overage on the date of the said advertisement. As he had already submitted his representation for condoning his overage on 1-2-2014 to the respondent No. 2, who in turn, forwarded the same to the respondent No. 4 in time and was allowed to participate in the recruitment process, he was surprised by this whimsical decision. As he was denied of the appointment solely on the ground of his overage and the issue involved in the writ petition can be disposed of law points only, no affidavit-in-opposition was called for from the respondent authorities. 3. Both Mr. P.D. Nair, the learned counsel for the petitioner, and Mr. As he was denied of the appointment solely on the ground of his overage and the issue involved in the writ petition can be disposed of law points only, no affidavit-in-opposition was called for from the respondent authorities. 3. Both Mr. P.D. Nair, the learned counsel for the petitioner, and Mr. N. Sarma, the learned Standing Counsel for the Elementary Education Department, Assam, have been heard at length. Annexure-2 is a copy of the application of the petitioner addressed to the respondent No. 2 for condoning his overage. Annexure-3 is a copy of the letter dated 9-5-2014 of the Under-Secretary to the Government of Assam, Elementary Education Department, forwarding the application of the petitioner to the respondent No. 4 requesting the latter to follow the instruction contained in the Office Memorandum of the Government dated 4-1-1992. The said Office Memorandum evidently permits relaxation of age up to the age of 45 instead of 40 years. Obviously, the application of the petitioner for overage condonation could not have been allowed in the face of the amended permissible upper limit of 45 years. However, the respondent authorities did not reject the application of the petitioner and rather permitted him to participate in the recruitment process by appearing before the Interview Board on 20-12-2014, nay, he was not even selected for the post. These are undisputed facts on record. 4. According to the learned counsel for the petitioner, the petitioner never made any misrepresentation about his overage or fraud while applying for and appearing before the interview Board as evident from his application dated 1-2-2014 submitted to the respondent No. 2. He, therefore, submits that irrespective of the said Office Memorandum barring relaxation of age beyond 45 years, the respondent authorities are now barred by the principle of estoppel from taking the stance that the petitioner was overage and, therefore, not eligible denying the appointment to the petitioner. In support of his contentions, the learned counsel relies on the decision of the Madhya Pradesh High Court in Bal Krishna Tiwari v. Awadesh Pratap Sing University, AIR 1978 MP 86 and my decision in WP(C) No. 6227 of 2013 (Majahar Hussain v. State of Assam & others) On the other hand, the submission of Mr. In support of his contentions, the learned counsel relies on the decision of the Madhya Pradesh High Court in Bal Krishna Tiwari v. Awadesh Pratap Sing University, AIR 1978 MP 86 and my decision in WP(C) No. 6227 of 2013 (Majahar Hussain v. State of Assam & others) On the other hand, the submission of Mr. N. Sarma, the learned standing counsel for the Elementary Education Department, Assam, that once it is found that a candidate such as the petitioner had attained the age beyond the permissible limit of relaxation in terms of the extant Office Memorandum, making a representation for further relaxation is an exercise in futility and irrespective of whether his representation was rejected or not, he should have voluntarily refrained from participating in the recruitment process and could not have taken advantage of the inaction of the respondent authorities in not rejecting in time; ignorance of law is non excuse. As the petitioner was already 47 years at the time of the time advertisement and there is no provision for further relaxation of age beyond 45 years under the law, he is rightly denied of the appointment. He, therefore, contends that the writ petition has no merit and is liable to be dismissed with cost. 5. The principle of estoppel came up for consideration before the Full Bench of the Madhya Pradesh High court in Bal Krishna Tiwari case (supra) 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. 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 in Bal Krishna Tiwari (supra) 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 categorised 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. 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. (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 not 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.” 6. In the case at hand, undoubtedly, no fraud was practiced by the petitioner upon the respondent authorities at any time nor did he conceal his overage. True, he was allowed by the respondent authorities to participate in the recruitment process even though he candidly disclosed his overage and sought for the condonation thereof from the respondent No. 2 who duly forwarded his application to the respondent No. 4 for consideration. There is also no technical defect in his application for the post. True, he was allowed by the respondent authorities to participate in the recruitment process even though he candidly disclosed his overage and sought for the condonation thereof from the respondent No. 2 who duly forwarded his application to the respondent No. 4 for consideration. There is also no technical defect in his application for the post. Yet, the question of condoning overage beyond 45 years is not permissible by the extant Office Memorandum: in fact, no discretion is at all given to the respondent authorities to condone the overage of a candidate beyond the age of 45 years. But then, a statute or statutory rules/regulations framed under an Act cannot be equated with Office Memorandum issued by the respondent authorities. Even though there can be no estoppel against statute or statutory rules/regulations, the principle of estoppel can operate overriding the Office Memorandum, which does not have a statutory flavour. In other words, the Office Memorandum in question is in the nature of administrative instructions and has no statutory flavour. In this view of the matter, the case of the petitioner can be said to fall within the four corners of the first category refereed to in Bal Brishna Tiwari (supra). Here is a case in which the petitioner, after disclosing his overage and without suppressing/misrepresenting any vital fact, was permitted by the respondent authorities to participate in the recruitment process knowing fully well his overage but subsequently repudiated his selection and refused to appoint him. This is wholly inequitable and most unfair. In my judgment, the petitioner has been given a raw deal and is unnecessarily and arbitrarily denied of the appointment for which he has the legitimate claim to the post of Sub-Inspector of Schools. 7. In the result, this writ petition is allowed. The respondent No. 2 and 4 are, therefore, directed to consider the appointment of the petitioner to the post of Sub-Inspector of Schools under the Directorate of Elementary Education, Assam in accordance with law. The exercise shall be completed within a period of forty-five days from the date of receipt of this judgment. No cost.