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2020 DIGILAW 807 (GAU)

H. Khawliana v. State Of Mizoram

2020-12-09

NELSON SAILO

body2020
JUDGMENT Nelson Sailo, J. - Heard Mr. A.R. Malhotra, learned counsel for the petitioner and Ms. Mary L. Khiangte, learned Govt. Advocate appearing for the respondent Nos. 1 to 4. I have also heard Mr. J.C. Lalnunsanga, learned counsel appearing for the respondent No. 5 and Mr. F. Lalengliana, learned counsel appearing for the respondent No. 6. 2. The case of the petitioner in brief is that he responded to the Advertisement dated 23.07.2018 (Annexure-2) issued by the Secretary, Mizoram Public Service Commission (MPSC), inviting application for appointment to the four (4) vacant posts of Circle Education Officer under the School Education Department of the State Government. The eligibility criteria amongst others was that aspiring applicants should not be below 21 years and above 35 years of age as on 27.08.2018. Further, in respect of SC/ST candidates, 5 years concession on the upper age limit was also permissible. 3. It is the case of the petitioner that although the respondent No. 6, who also responded to the advertisement was found to be overaged and her application rejected vide Communication dated 11.07.2019 (Annexure-3) but when the recommendation of the selected candidates was published by the MPSC vide Notification dated 18.12.2019 (Annexure-5), the respondent No. 6 was placed at Serial No. 2 in order of merit while the petitioner was placed at Serial No. 1 in the panel list. The respondent authority concerned by invoking the relaxation clause provided under Rule 8 of the Mizoram Education & Human Resources Department (Group 'B' post) Recruitment Rules, 1995 (Rules of 1995 for short) in respect of those employed under the Sarva Shiksha Abhiyan (SSA) relaxed the upper age limit of five (5) persons including respondent No. 6 to make them eligible to participate in the selection process. According to the petitioner, the Notification dated 02.09.2019 is only belated and an afterthought since the examination for selection to the post in question had already been conducted w.e.f 27th to 29th August, 2019. As the petitioner was aggrieved with the action of the respondent authority concerned, he submitted a representation before the respondent No. 2 on 08.01.2020 (Annexure-6) but however, the same was not considered. Thus, having no other alternative, he is before this Court through the instant Writ Petition. 4. Mr. As the petitioner was aggrieved with the action of the respondent authority concerned, he submitted a representation before the respondent No. 2 on 08.01.2020 (Annexure-6) but however, the same was not considered. Thus, having no other alternative, he is before this Court through the instant Writ Petition. 4. Mr. A.R. Malhotra, the learned counsel submits that since the date of birth of the respondent No. 6 is 26.06.1974, she would be around 44 years of age as on the date of the advertisement. Referring to Rule 8 of the Recruitment Rules of 1995, he submits that no doubt, the Governor of the State is empowered to relax any of the provisions of the Rules of 1995 with respect to any class or category of persons but to exercise such power, there has to be an opinion expressed and an order passed by recording reasons in writing. However, a perusal of the Notification dated 02.09.2019 would go to show that no specific reason has been assigned for invoking the relaxation clause and therefore, the Notification cannot stand the scrutiny of law besides being belated and an afterthought. 5. The learned counsel by also referring to the affidavit-in-opposition of the respondent No. 6 submits that the reason for the relaxation according to the official respondents was on account of humanitarian ground. He submits that the same cannot be a valid reason for invoking the relaxation clause. The established norms is that relaxation is to be given only in exceptional cases and importantly, in furtherance of public interest and fair dealing. Mr. A.R. Malhotra also submits that the decision to relax the relevant provisions of the recruitment rules is to be put in writing and an order passed in terms of Article 166 of the Constitution of India and conveyed to the concerned person or department. In the present case, there was no order passed when the examinations were conducted w.e.f. 27th to 29th August, 2019 and therefore, the respondent No. 6 could not have been allowed to sit for the exams. He submits that if the respondent authorities at all wanted to give age relaxation, the same should have been given wide publicity by incorporating the same in the advertisement itself so that those who are eligible can also avail age relaxation. He submits that if the respondent authorities at all wanted to give age relaxation, the same should have been given wide publicity by incorporating the same in the advertisement itself so that those who are eligible can also avail age relaxation. However, the same was not done and instead, the impugned Notification dated 02.09.2019 was issued for the five (5) persons after the written examination was conducted. As such, the impugned Notifications dated 02.09.2019, 18.12.2019 and 14.02.2020 in so far as the respondent No. 6 is concerned may be set aside. In support of submission, Mr. A.R. Malhotra, the learned counsel relies upon the following authorities:- i) Bachhittar Singh Vs. State of Punjab & Anr., (1963) AIR SC 395. ii) State of Kerela Vs. Smt. A. Lakshmikutty & Ors., (1986) 4 SCC 632 . iii) Bedanga Talukdar Vs. Saifudaullah Khan & Ors., (2011) 12 SCC 85 iv) K.S.B. Ali Vs. State of Andhra Pradesh & Ors., (2018) 11 SCC 277 v) Narjima Begum & Ors. Vs. State of Assam & Ors.,2019 4 GLT 260. 6. Ms. Mary L. Khiangte, learned Govt. Advocate submits that although the learned counsel for the petitioner has argued that Article 166 of the Constitution of India has not been complied with but the same is beyond the pleadings and therefore, the submissions made in this regard should not be accepted. Referring to the Testimonial Certificate of the respondent No. 6 annexed in the affidavit-in- opposition of the respondent No. 6, the learned Govt. Advocate submits that the respondent No. 6 was working as a Resource Person (Subject Specific) under the Mizoram SSA Mission since 31.03.211 and therefore, she is in the same line or allied cadre which will be useful for efficient discharge of duties in the post of Circle Education Officer. As such, taking this factor into consideration, age relaxation in favor of the respondent No. 6 and four (4) others similarly placed was given vide the Notification dated 02.09.2019. She further refers to the Office Memorandum dated 27.04.1992 annexed as 'Annexure-1' to the State's counter- affidavit and submits that relaxation of age for appointment to Government Service by direct recruitment is permissible when the same is specifically provided for in the scheme of the examination and approved in consultation with the MPSC. She further refers to the Office Memorandum dated 27.04.1992 annexed as 'Annexure-1' to the State's counter- affidavit and submits that relaxation of age for appointment to Government Service by direct recruitment is permissible when the same is specifically provided for in the scheme of the examination and approved in consultation with the MPSC. She submits that Rule 8 of the Rules of 1995 provides for the power to relax the recruitment rules and accordingly, the same was invoked and the approval of the MPSC was also obtained. As such, no illegality has been committed by the State respondents in granting age relaxation to the respondent No. 6. Under the circumstance, the writ petition should be dismissed for being devoid of merit. 7. Mr. J.C. Lalnunsanga, learned counsel referring to the affidavit-in- opposition of the respondent No. 5 submits that the Under Secretary to the Govt. of Mizoram, Department of Personnel & Administrative Reforms (DP&AR) wrote to the MPSC on 31.07.2019 stating that the Government after examining the matter, decided to relax the age of five (5) SSA employees so as to enable them to appear in the direct recruitment process for the post of Circle Education Officer. As such, the comments of the MPSC was sought. In view of the decision of the Government conveyed to the MPSC, the five (5) SSA employees which included the respondent No. 6 were allowed to appear in the examination held w.e.f 27.08.2019 to 29.08.2019 and the MPSC also conveyed its approval to the Under Secretary, DP&AR on 27.08.2019. No doubt the application of the respondent No. 6 was initially rejected by the MPSC on the ground of her being overaged but subsequently, in view of the decision of the Government to relax the age of the respondent No. 6 and four (4) other persons as conveyed on 31.07.2019 as stated earlier, she was allowed to participate in the selection process. The learned counsel also submits that although the exams for the post of Circle Education Officer was initially scheduled to be held in the month of November, 2019, but in view of the request made by the concerned department to have an early selection due to acute shortage of incumbents, the examination was pre-poned to the month of August, 2019. The learned counsel also submits that although the exams for the post of Circle Education Officer was initially scheduled to be held in the month of November, 2019, but in view of the request made by the concerned department to have an early selection due to acute shortage of incumbents, the examination was pre-poned to the month of August, 2019. The learned counsel submits that the respondent No. 6 was allowed to sit for the examination and participate in the interview after due consideration was given to the Rules of 1995 and the guidelines for age relaxation provided in Office Memorandum dated 27.04.1992. Therefore, no error was committed by the MPSC or the State respondents in selecting and appointing the respondent No. 6 to the post of Circle Education Officer. 8. The learned counsel also submits that it was open for the petitioner to challenge the participation of the respondent No. 6 in the selection process even before the results of the selection was declared vide Notification dated 18.12.2019 or even before she was appointed vide Notification dated 14.02.2020. However, it was only after the results were declared and the respondent No. 6 appointed to the post, the petitioner belatedly decided to file the instant writ petition. Thus, it is the writ petition which is an afterthought and therefore, the same should be dismissed. In support of his submission, he relies upon the Apex Court decision in the case of Pradeep Kumar Rai & Ors. Vs. Dinesh Kumar Pandey & Ors., (2015) 11 SCC 493 . 9. Mr. F. Lalengliana, the learned counsel also submits that there is nothing wrong in the age relaxation given to the respondent No. 6 inasmuch as, the respondent authority concerned in terms of Rule 8 of the Rules of 1995 is empowered to relax any of the provisions of the rules. He submits that the process for age relaxation was initiated by the respondent authorities well before the date of the examination and apparently, it was only due to the slow movement of the file that the approval was conveyed only on 27.08.2019 and the Notification impugned by the petitioner issued on 02.09.2019. He submits that the process for age relaxation was initiated by the respondent authorities well before the date of the examination and apparently, it was only due to the slow movement of the file that the approval was conveyed only on 27.08.2019 and the Notification impugned by the petitioner issued on 02.09.2019. That in view of the decision of the Government to grant age relaxation as was conveyed to the MPSC on 27.08.2019, the respondent No. 6 was given an Admit Card and allowed to sit for the written examination and thereafter, called for the interview on 18.12.2019. Therefore, when a decision was already taken to grant age relaxation even as on the date of the written examination, the respondent No. 6 cannot be denied to participate in the selection process. He submits that the respondent No. 6 cannot be held to be responsible for the delay in approving the age relaxation by the respondent authority concerned. 10. The learned counsel further submits that earlier the respondent No. 6 also participated in the selection process conducted by the MPSC for the post of Middle School Teacher and on being selected, she was appointed as such by the State Government in the School Education Department vide order dated 14.05.2019. However, as she was subsequently selected for the post of Circle Education Officer, she resigned from the post on 17.02.2020 and her resignation was formally accepted by the School Education Department vide Office Order dated 28.02.2020. He submits that the respondent No. 6 is by now 46 years of age and overaged to seek employment elsewhere. 11. The learned counsel also submits that the petitioner was all along aware of the fact that the respondent was allowed to sit for the written examination and thereafter, allowed to participate in the interview. He however did not challenge her participation in the selection process and it was only after the respondent No. 6 was appointed vide Notification dated 14.02.2020 that the petitioner filed the instant writ petition belatedly on 11.03.2020. The learned counsel submits that the petitioner is only estopped by his own conduct to challenge the selection and appointment of the respondent No. 6 and therefore, the writ petition may not be entertained at this stage. In support of his submission, the learned counsel relies upon the following authorities:- i) Suneeta Aggarwal Vs. State of Haryana & Ors., (2000) 2 SCC 615 . In support of his submission, the learned counsel relies upon the following authorities:- i) Suneeta Aggarwal Vs. State of Haryana & Ors., (2000) 2 SCC 615 . ii) Arun Deka (DR.) & Ors. Vs. State of Assam & Ors.,2006 3 GLT 107. 12. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record, the authorities relied upon by the parties and the records produced by the learned Govt. Advocate and the Standing Counsel for the MPSC. From the facts projected by the parties, the issue to be decided is as to whether the selection and appointment of the respondent No. 6 to the post of Circle Education Officer can be sustained having regard to the manner in which age relaxation was granted to her. 13. It may be noticed again that advertisement for the post in question was issued on 23.07.2018 and the eligibility criteria with regard to age was that the applicant should not be below 21 years and above 35 years of age as on 27.08.2018. Candidates belonging to SC/ST category could be given 5 years concession on the upper age limit. The date of birth of the respondent No. 6 as annexed to the impugned Notification dated 02.09.2019 is 26.06.1974. Therefore, as on the fixed date in terms of the advertisement, she was almost 44 years of age and therefore, clearly overaged. Her application was initially rejected by the MPSC but later on, in view of the age relaxation decided to be given in her favor by the State respondents and communicated to the MPSC on 31.07.2019, she was allowed to sit for the examination conducted w.e.f 27th to 29th August, 2019. 14. From the materials available on record, it is seen that though the age relaxation was notified on 02.09.2019, but the process was initiated as on 19.07.2019 from the Directorate of School Education. It is further seen from the records produced that a decision was taken to grant age relaxation to the respondent No. 6 and other four (4) persons similarly situated and the persons whose age were sought to be condoned were Teachers engaged on contract basis under the SSA Mission. It is further seen from the records produced that a decision was taken to grant age relaxation to the respondent No. 6 and other four (4) persons similarly situated and the persons whose age were sought to be condoned were Teachers engaged on contract basis under the SSA Mission. It was also noted that the post of Circle Education Officer, which they have applied, is in the same line and the services rendered under the SSA Mission will be useful for efficient discharge of duties in the post of Circle Education Officer. The power of relaxation of any provision in the Rules of 1995 in consultation with the MPSC was also duly noted by the DP&AR. Accordingly, to enable them to compete for the post in question, relaxation was approved and sent to the MPSC on 31.07.2019. However, the MPSC did not respond immediately and it was only on 27.08.2019 that it acknowledged the relaxation. Thereafter, on 02.09.2019, the Notification granting age relaxation was issued by the State Government in the DP&AR. 15. The Apex Court in the case of Bachhittar Singh (supra) held that before something amounts to an order of the State Government, two things are necessary. The order has to be expressed in the name of the Governor as required by Clause (1) of Article 166 of the Constitution of India and it has to be communicated. It is noticed that in the given facts of that case, the Apex Court opined that until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and therefore, till it is communicated, the order cannot be regarded as anything more than a provisional in character. Applying the same principle to the present case, the participation of the respondent No. 6 in the written examination conducted w.e.f. 27th to 29th August, 2019 can be regarded as provisional and that the written examination by itself was not the final stage of the selection. The notification on age relaxation was then issued formally on 02.09.2019 which is undisputedly before the conclusion of the selection process. As such, the case of Bachhittar Singh (supra) rather helps the private respondent. 16. In the case of Pradeep Kumar Rai & Ors. The notification on age relaxation was then issued formally on 02.09.2019 which is undisputedly before the conclusion of the selection process. As such, the case of Bachhittar Singh (supra) rather helps the private respondent. 16. In the case of Pradeep Kumar Rai & Ors. (supra), the Apex Court concurred with the decision of the Division Bench of the High Court on the point that the appellants had participated in the process of interview and did not challenge it till the results were declared. There was a gap of almost four (4) months between the interview and the declaration of the result. However, the appellants did not challenge the same at relevant time. Only when the appellants found themselves to be unsuccessful, they challenged the interview, which according to the Apex Court could not be allowed. 17. In the case of Suneeta Aggarwal (supra), the Apex Court in the given facts of that case held that the appellant though approved by the selection committee for the post of Lecturer, the Vice Chancellor did not approve the same and instead directed re-advertisement. The post was re-advertised and the appellant again applied for the post and appeared before the Selection Committee for interview without protest. At the same time the appellant filed a writ petition challenging the order of the Vice Chancellor. The Apex Court therefore held that the High Court rightly refused to grant discretionary relief to the appellant since the appellant stood estopped by her own conduct from filing the writ petition. 18. The same principle as in the case of Suneeta Aggarwal (supra) was adopted by this Court in Arun Deka & Ors. (supra). Although there is a slight variation on the facts involved to the extent that the grievance of the petitioners was the manner and method of conducting the selection while the grievance of the petitioner in the present case is with regard to the participation of the respondent No. 6 in the selection process. At any rate, the ratio laid down by the Apex Court and this Court is that a person who has participated in a selection process on finding himself or herself to be unsuccessful cannot at a later stage turn around and challenge the selection process. 19. At any rate, the ratio laid down by the Apex Court and this Court is that a person who has participated in a selection process on finding himself or herself to be unsuccessful cannot at a later stage turn around and challenge the selection process. 19. In the present case, it may be seen that the petitioner did not raise any grievance in the participation of the respondent No. 6 in the selection process i.e., written examinations held w.e.f. 27th to 29th August, 2019 and the interview held on 18.12.2019 but when he found that he was not one amongst those in the merit list, he filed the present writ petition in the month of March, 2020. Therefore, having regard to the conduct of the petitioner, this Court finds that the petitioner cannot be said to have any legitimate grievance warranting the interference of this Court. 20. The case of Bedanga Talukdar (supra) relied upon by the learned counsel for the petitioner cannot have any application to the instant case inasmuch as, it is nobody's case that wide publicity with regard to relaxation ought to have been given through the advertisement. Relaxation as permissible in law in fact has been clearly provided in the Rules of 1995 and also in the Office Memorandum dated 27.4.2019. As such, the authority relied upon is found to be not applicable. 21. In respect of the case of Smt. A. Lakshmikutty & Ors. (supra) relied upon by the counsel for the petitioner, this Court finds that the facts involved in that case compared to the facts involved in the present case are not similar. As already stated above, the respondent No. 6 was permitted to appear in the written examination after the State Government decided to grant age relaxation and communicated the same to the MPSC on 31.07.2019. As already stated herein before, the participation of the respondent No. 6 can be regarded as provisional and which was later made final by the issuance of the Notification dated 02.09.2019. As such, the case referred to and relied upon by the counsel for the petitioner is found to be not applicable. 22. As already stated herein before, the participation of the respondent No. 6 can be regarded as provisional and which was later made final by the issuance of the Notification dated 02.09.2019. As such, the case referred to and relied upon by the counsel for the petitioner is found to be not applicable. 22. In so far as the case of K.S.B Ali (supra) is concerned, the Apex Court held that un-communicated Government memos in absence of being sanctified and acted upon by issuing formal order in terms of Article 166 (2) of the Constitution of India and communicated to the affected persons cannot be acted upon. There cannot be any argument about such requirement and in fact, the case of Bachhittar Singh (supra) was also referred to in this judgment. However, the fact remains that in the present case, in view of the decision of the State respondents to grant age relaxation to the respondent No. 6 and the other similarly situated four (4) persons, they were allowed to participate in the written examination and before the interview was conducted, a formal order was issued on 02.09.2019. The participation of the respondent No. 6 being provisional and importantly, in the absence of any objection and challenge made by the petitioner at the relevant time, the petitioner cannot legitimately raise a grievance at a belated stage. In other words, the petitioner will only be estopped by his own conduct and that the failure to question the participation of the respondent No. 6 will only have to outweigh the contention that there was no formal order passed in favor of the respondent No. 6 prior to holding the written examination or the same is not in conformity with Article 166 of the Constitution of India. 23. It may also be noticed that in order to be selected for appointment to the post of Circle Education Officer, the aspiring candidates have to go through the rigorous of the selection process, which include both written examination and interview. The respondent No. 6 apparently has spent a number of years in employment under the SSA Mission as a Resource Person (Subject Specific) on contract basis. Therefore, the relaxation of age by no means in my considered view can be categorized as one given under extraneous consideration. The respondent No. 6 apparently has spent a number of years in employment under the SSA Mission as a Resource Person (Subject Specific) on contract basis. Therefore, the relaxation of age by no means in my considered view can be categorized as one given under extraneous consideration. Even with the age relaxation, all the applicants have equal and fair chance to compete in the selection process and therefore, this Court is of the considered view that the case at hand is not a case wherein undue favoritism has been shown to the respondent No. 6. As such, the case of Narjima Begum & Ors. (supra) relied upon by the petitioner is not found to be applicable. 24. Thus, upon considering the case in its entirety, I am of the considered view that the writ petitioner cannot be said to have any legitimate grievance warranting exercise of the discretionary and extra-ordinary powers of this Court conferred by Article 226 of the Constitution of India. Accordingly, the writ petition being devoid of merit is hereby dismissed. No cost.