Manipur Public Service Commission And Others vs Roshan Kshetrimayum And Others

Kh. Nobin Singh, J

[1] Heard Shri I. Lalitkumar Singh, learned Senior Advocate assisted by Shri I. Denning, learned counsels appearing for the appellant and Shri B.P. Sahu, learned Senior Advocate assisted by Shri Phungyo Zingkhai, learned counsel appearing for the respondent No.1. None appears for the other respondents.

[2] The instant writ appeal is directed against the judgment and order dated 12-05-2016 passed by the learned Single Judge in WP(C) No. 33 of 2014.

[3.1] Facts, in brief, are that the respondent No.1 being a Bachelor in engineering was initially appointed to the post of Laboratory Technician (Civil) in the Manipur Institute of Technology (hereinafter referred to as "the MIT") on contract basis for a period of 6 (six) months vide order dated 23-09-2005 but his service was regularized vide order dated 12-10-2005 issued by the Member Secretary/ Principal, MIT in the name of Vice-Chairman. At the time of his initial appointment, the MIT being a registered society, was under the administrative control of the Department of Higher and Technical Education, Government of Manipur and it came to be under the control and supervision of the Manipur University vide order dated 04-04-2006 with effect from 31-10-2005.

[3.2] On 07-05-2013, the Manipur Public Service Commission (hereinafter referred to as "the MPSC") issued an Advertisement inviting applications from amongst the eligible candidates for appointment to the post of Assistant Engineers in different departments of the State of Manipur. The age limit prescribed therein was in between 21 years and 35 years as on 01-07-2013 but is relaxable for Government servant appointed under the Government of Manipur to the extent of the period of continuous service in the post and a Government servant who belongs to SC/ST/OBC will get the facility admissible to a Government servant in addition to the relaxation admissible to SC/ST/OBC candidates. The upper age limit for OBC candidates has been relaxed by 3 (three) years. The respondent No.1 applied for the said post by treating himself to be a Government servant appointed under the Government of Manipur under the belief that he would be within the age limit. The respondent No.1's application was accepted by the MPSC and although he took part in the recruitment process, his name was not declared as one of the successful candidates.

The MPSC issued a memorandum dated 02-01-2014, after giving him an opportunity to explain his case, stating that the candidature of the petitioner is cancelled and the ground on which his candidature has been cancelled, is that he was over-aged because the MIT is a constituent college of the Manipur University and its employees are not the employees of the State Government.

[3.3] Being aggrieved by the said memorandum dated 02-01-2014, the respondent No.1 approached this Court by way of a writ petition being WP(C) No.33 of 2014 taking a stand therein that when the petitioner was appointed, the MIT was under the control of the Department of Higher and Technical Education, Government of Manipur and therefore, he was very much a Government servant and the benefits of age relaxation should be granted to him. It is nowhere mentioned in the advertisement that the continued service must be under the Government of Manipur and since he was appointed in the MIT which was a Government society, he shall be deemed to be a Government servant. Although the respondent No.1 belongs to OBC category, he did not apply as an OBC candidate but as a Government servant by seeking relaxation of age being granted to Government servants as provided in the advertisement and had the respondent No.1 applied as an OBC candidate, he would have automatically been entitled to three years of relaxation as provided in the advertisement. As the effect would be the same, he did not apply as an OBC candidate.

[4] The stand of the MPSC was that the advertisement used the expression "Government servant appointed under the Government of Manipur" and therefore, a person who is claiming relaxation, must be a Government servant working under the Government of Manipur. The respondent No.1 was an employee of a society and not under any department of the Government. Moreover, in order to clarify the issue, the MPSC sought the opinion of the State Government as regards the status of the employees of the MIT. The State Government vide its letter dated 21-12-2013 clarified that the employees of the MIT are not the employees of the State Government. The respondent No.1 being an employee of the MIT under the control and supervision of the Manipur University, a Central University, he cannot be considered to be a Government servant appointed under the Government of Manipur within the meaning of the relaxation clause provided in the advertisement. The stand of the State Government was similar to that of the stand taken by the MPSC.

[5] After having heard the learned counsels appearing for the parties, the learned Single Judge allowed the writ petition with the direction that the authorities shall offer appointment against the lone post of Assistant Engineer which falls under the unreserved category, by verifying the OBC status and the relevant certificate. While allowing the writ petition, the learned Single Judge held that the respondent No.1 could not get the benefit for the service rendered by him after the MIT came under the control of the Manipur University. But in the peculiar facts and circumstances of the case, the learned Single Judge was of the view that rejection of the plea of the respondent No.1 would not automatically lead to denial of relief to him for the reason that the fact that he belongs to OBC category as pleaded in the reply affidavit, has not been denied by the appellant and the explanation as to why he did not apply as an OBC candidate, was offered by him. The relevant para 14 of the judgment and order of the learned Single Judge reads as under:

"14. However, rejection of the plea of the petitioner on this count, in the opinion of this Court, would not automatically lead to denial of relief to the petitioner. The relaxation clause as mentioned above clearly provides for relaxation of 3 years for the OBC candidates. Normally, the relaxation clauses provided for SC or ST or OBC or any other reserved category is identified with the posts reserved under the respective categories in the recruitment process so that candidates belonging to these categories can be appointed against the posts reserved for them under the relaxed criteria as may be provided. In the present case what has been noted is that there were certain posts of Assistant Engineers reserved for the OBC category. Similarly, there were also certain seats reserved for ST category. Therefore, obviously if any candidate belonging to any of these categories of OBC or ST applies for the said reserved posts, he will be entitled to be considered for these posts with the relaxed criteria. This, however, does not mean that if any OBC or ST or any reserved category candidate is found meritorious and suitable for appointment under the Unreserved/General category, such candidate belonging to OBC or ST can not be appointed under the Unreserved Category. However, such candidate belonging to the reserved category may not be considered for appointment against Unreserved category under the relaxed criteria touching upon merit. In this regard, one may refer to the decision of the Hon'ble Supreme Court in Jitendra Kumar Singh v. State of U.P., (2010) 3 SCC 119, where the Hon'ble Supreme Court held that concession by giving relaxation in age or examination fees in respect of reserved candidates is merely to bring under the zone of consideration and does not upset the "level playing field", and can be considered for appointment against unreserved vacancy based on merit as stated in para 75 of the judgment which is reproduced herein below:

"75. In our opinion, the relaxation in age does not in any manner upset the "level playing field". It is not possible to accept the submission of the learned counsel for the appellants that relaxation in age or the concession in fee would in any manner be infringement of Article 16(1) of the Constitution of India. These concessions are provisions pertaining to the eligibility of a candidate to appear in the competitive examination. At the time when the concessions are availed, the open competition has not commenced. It commences when all the candidates who fulfil the eligibility conditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the preliminary test as also in the physical test. It is only thereafter that successful candidates have been permitted to participate in the open competition."

In view of the above, relaxation granted in age is not really a substantive relaxation of the essential eligibility criteria which affects the merit so as to disentitle any claim for appointment based on merit. Thus, even a candidate belonging to any of the reserved categories would be entitled to be considered for appointment under the unreserved/general category if he is found to meritorious enough and fulfil the minimum eligibility criteria laid down for the unreserved/general category without availing any relaxation clause, except age or examination fee. Accordingly, even if the petitioner is granted relaxation of age yet if he is meritorious enough, his claim for appointment against the unreserved quota cannot be ignored. In the present case, the petitioner can avail the relaxation of age only if he is considered either a Government servant, which is not, or as an OBC candidate. If the petitioner is indeed a candidate belonging to OBC category, he would be entitled to 3 years of relaxation granted for the OBC candidates as mentioned in the advertisement. However, the objection of the respondent MPSC as well as the State respondents is that the petitioner applied under the Unreserved category and as such he is not entitled to the relaxation of age granted to the OBC candidates. This objection at first blush may seem well merited but on further scrutiny does not hold water in the present facts and circumstances of the case. First of all, the claim of the petitioner that he belongs to OBC has been specifically pleaded in the pleadings as mentioned in para No. 12 of the reply affidavit filed by the petitioner. In para 12 it has been specifically pleaded that he belongs to the category of OBC and if he had applied as an OBC candidate there would not have been any age bar because of the relaxation granted to the OBC candidates. It has been further pleaded that, in view of the relaxation clause mentioned as above, for the Government servants appointed under the Government of Manipur, and as the petitioner was appointed while the MIT was under the State Government, he applied as a General category. The aforesaid specific plead taken by the petitioner that he belongs to the OBC category has not been denied by the respondents. Thus, the factum that the petitioner belongs to OBC category is not disputed, in which event he will get the benefit of relaxation of age. Of course, it will be subject to proper verification of the certificates in support of such a claim. Whether a person belongs to OBC or not, is a question of fact and an inherent attribute of a person which comes along from birth and even if a person has not specifically mentioned that he belongs to OBC category, it would not divest him of the status of OBC as the categorisation as OBC is inextricably linked to his caste, which is determined by birth not by choice. Thus, he would be entitled to the benefits of the OBC unless he falls under the creamy layer. Of course, he can give up his claim for appointment under the quota reserved for the OBC if he so desires. The MPSC and the Respondents would contend that by not applying as an OBC candidate, the petitioner has waived and forfeited his rights as available to an OBC candidate. This contention is quite natural and ordinarily would be accepted. However, because of the peculiar facts and circumstances of the case as discussed herein below, this Court is not able to accept the said contention. It is not denied by the petitioner that he had not applied as an OBC candidate but he applied under the Unreserved quota. However, he offers an explanation for the same. He contends that in order to avail the benefit of age relaxation, which is the only hurdle before the petitioner in his candidature, he opted to apply as a Government servant with the permission from the authorities of the MIT on the bonafide belief that as he was a Government servant, he would be entitled to relaxation of age, as such relaxation is granted to Government servants appointed under the State Government. He based his belief on the ground that when he was initially appointed as a Laboratory Technician in the MIT, the Institute was under the Government of Manipur. This mistaken notion that he is a Government servant and as such entitled to relaxation of age made him apply as a Government servant under the Unreserved category and not as an OBC candidate. Though, technically, the petitioner may be wrong in presuming that the petitioner was a Government servant appointed under the Government of Manipur as contended by the respondents, it cannot be said that such presumption was preposterous and absolutely unwarranted, as MIT, though was governed by a society, was under the control of the Higher Technical Education Department, Govt. of Manipur. Therefore, it cannot be said that he had deliberately misled the authorities of the MPSC or concealed material facts or that he had waived his rights and privileges of an OBC candidate or that he did not consider himself a candidate belonging to OBC. Therefore, by taking a liberal approach to the problem in issue, if it is accepted that due to bonafide presumption the petitioner had applied as a Government servant, by such application it cannot be said that he has ceased to be an OBC candidate for all purposes. In the present case, he is claiming relaxation only in respect of the age and not in respect of any other eligibility criteria and the Hon'ble Supreme Court has already held in Jitendra Kumar (supra) that relaxation in age does not in any manner upset the "level playing field". Relaxation in age does not compromise or amounts to relaxation of essential qualifications so as to give any undue benefit to a reserved candidate when considered for appointment against unreserved vacancy. A person belonging to a reserved category would be entitled to be appointed/adjusted under unreserved category so long as he fulfils minimum eligibility requirements for the unreserved category on the basis of merit in competitive examination. Of course, it can be said that since the petitioner did not apply as or declare himself as an OBC candidate initially, to that extent it may be deemed that he has waived his right to be considered for appointment under the OBC quota. However, even assuming that he has waived his right to be appointed against the OBC quota, and as such cannot claim for appointment against the OBC quota, yet, he cannot be denied the right to be considered for appointment against Unreserved quota based on merit. It is to be noted that under the Unreserved quota, anyone whether, General, SC or ST or OBC or any reserved category can be appointed provided he is meritorious enough and fulfills all the essential requirements fixed for the Unreserved category. The Unreserved quota is open to all irrespective of the category of the candidate, but the appointment under the Unreserved quota will be purely based on merit without taking any benefit of relaxation of any criteria. The Hon'ble Supreme Court has already held in Jitendra Kumar (supra) that relaxation in age or examination fee is no concession or relaxation of any essential qualification for the purpose of consideration for appointment under the Unreserved category based on merit. In that context, this Court is of the opinion that any such relaxation in age granted to an OBC candidate as mentioned in the advertisement cannot be denied to the petitioner if he is found to be belonging to OBC category. In the present case, if the petitioner is placed sufficiently high in the merit list, his claim for appointment against unreserved posts cannot be defeated merely because of the relaxation in age which may be granted to him as an OBC candidate provided there is vacancy available under the Unreserved category. In this case, even though the petitioner applied under the Unreserved category, and sought for relaxation of age as a Government servant under the Government of Manipur, it cannot be said that he has ceased to be an OBC candidate. He very much remains a candidate belonging to OBC. Though the petitioner may not be considered for appointment against the OBC quota as he did not apply as an OBC candidate as stressed by respondents, in the facts and circumstances of the case, it cannot be stated that the petitioner has ceased to be an OBC candidate for all purposes and he cannot be denied the benefit of relaxation of age, as discussed above. Whether the petitioner really belongs to OBC, however, will be a question of fact which can be verified by the authority, and if it is found that the petitioner indeed belongs to OBC category, this Court is of the view that the petitioner would be entitled to the relaxation of age and the claim of the petitioner cannot be rejected on the ground that he did not declare so at the time of filing the application. Once it is ascertained that a candidate belongs to OBC, it is the inherent right of the OBC candidate to claim relaxation of age as provided under the advertisement. Of course, as already observed, the petitioner may not have any claim for appointment under the reserved posts for the OBCs as he has not specifically claimed for it. However, as stated above, if the petitioner is placed sufficiently high in the merit list in the General category he may be considered for appointment under the General category if vacancy still exists. This Court would like to emphasise that the right of the petitioner to be considered for appointment as discussed above is contingent upon existence of vacancy under the Unreserved quota. This right of the petitioner cannot be enforced in absence of vacancy as, otherwise, it will upset and unsettle appointments already made who cannot be made to suffer on account of such claim of the petitioner as neither the authorities nor any of the other appointees were responsible for the situation the petitioner has created for himself."

[6] The judgement and order of the learned Single Judge is under challenge in this writ appeal on the inter-alia grounds that the advertisement as regards the age relaxation is unambiguous and the respondent No.1 consciously applied as a general candidate with examination fee being paid for it. Moreover, the respondent No.1 has certified in the appropriate column that the information furnished by him is correct and complete to the best of his knowledge. In the reply filed by the respondent No.1, it has been claimed by him that he belongs to OBC category but no document in support of his claim was produced before the learned Single Judge. After the candidature of the respondent No.1 having been cancelled, the MPSC did not declare his result and therefore, the learned Single Judge erred in directing the State respondents to offer appointment which is absolutely against the rules.

[7] Article 16 of the Constitution of India provides for equal opportunity in matters relating to public employment. This constitutional mandate has been vividly and succinctly explained by a constitution bench of the Hon'ble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi, (2006) 4 SCC 1. Similarly, in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & ors, (2006) 2 SCC 482 the Hon'ble Supreme Court held:

"12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment or appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution."

As has been held by the Hon'ble Supreme Court as regards the constitutional mandate and in terms thereof, the MPSC issued the advertisement dated 07-05-2013 wherein the eligibility conditions have been prescribed and the relevant portion thereof with respect to the age relaxation reads as under:

"2. Eligibility Conditions:

(i) The candidate must be a citizen of India.

(ii) Age limit: (a) shall not be less than 21 years and not more than 35 years as on 1stJuly, 2013;

(b) The upper age is relaxable by 5 years for SC/ ST, 3 years for OBC and 10 years for persons with Disabilities. Candidates belong to SC/ ST / OBC who are also physically handicapped will be eligible for grant of cumulative age relaxation under both the categories. Provided that the upper age is relaxable for Government servants appointed under the Government of Manipur to the extent of the period of continuous service in the post/ service and a Government servant who belongs to SC/ST/OBC will get the facility admissible to a Government servant in addition to the relaxation admissible to SC/ST/OBC candidates.

[8] The validity and correctness of this advertisement appear to have not been challenged by anyone and therefore, all candidates who wish to apply thereunder, are bound by it. There is no material on record to show that the eligibility conditions as regards the age relaxation, have been questioned by the respondent No.1 before any appropriate forum. It is not in dispute that the respondent No.1 applied for appointment claiming the benefit of age relaxation being provided to a Government servant on the ground that he was appointed to the post of Laboratory Technician (Civil) in the MIT, a registered society which was under the administrative control of the Department of Higher and Technical Education, Government of Manipur and it came to be under the control and supervision of the Manipur University vide order dated 04-04-2006 with effect from 31-10-2005. At this juncture, it may be noted that the appointment of a person as an employee of a society controlled by the Government is different from that of a Government servant and such a person can never be said to be a Government servant. In other words, the respondent No.1 was not appointed by the State Government for the reason that his order of appointment was not issued by a Secretary of the concerned Department in the name of the Governor as per the rules of business, rather issued by the Principal in the name of Vice-Chairman, MIT. On top of that, the respondent No.1, at the time of advertisement being issued, was not a Government servant at all. He was well aware of it and knowing fully the eligibility conditions as prescribed in the advertisement, he applied for appointment claiming the benefit of age relaxation being provided to a Government servant and not as an OBC candidate, as is evident from his application. During the course of the recruitment process, the respondent No.1 was served with a memorandum dated 17-12-2013 to explain as to why his application be not cancelled on the ground of being overaged, to which he gave his reply. The MPSC on the basis of a clarification given by the State Government that he is not a Government servant, issued a memorandum dated 02-01-0214 cancelling his candidature. Being aggrieved by it, the respondent No.1 challenged it by way of a writ petition being WP(C) No.33 of 2014 making an endeavour to justify his claim and in addition thereto, he made an averment in the writ petition that he belongs to OBC but he did not apply as an OBC candidate on the ground that he was eligible for being granted the benefit of a Government servant. Surprisingly, there is no prayer in the writ petition that he be given the benefit of age relaxation as an OBC candidate nor did he produce any certificate issued by a competent authority that he belongs to OBC category. In fact, he was unable to satisfy the learned Single Judge that he was a Government servant nor was he able to prove that he belongs to OBC, by producing a certificate issued by a competent authority. Nothing prevented him from applying for appointment as an OBC candidate but he failed to do that at his own risk. Allowing him to be considered as an OBC candidate when he has already failed to claim the benefit thereof at the time of submitting his application, will tantamount to interfering with the advertisement or otherwise, the purpose of advertisement notifying the eligibility conditions to all concerned, will stand defeated resulting in the denial of equal opportunity to the candidates. The learned Single Judge erred in not appreciating the fact that the respondent No.1 was unable to prove that he belongs to OBC candidate by producing the relevant documents in respect thereof and therefore, the learned Single Judge ought not to have directed the respondents to offer appointment to the respondent No.1 against the lone unfilled post of Assistant Engineer verifying his OBC status. In his judgment and order, the learned Single has relied upon the decision rendered by the Hon'ble Supreme Court in Jitendra Kumar Singh Vs. State of UP, (2010) 3 SCC 119 wherein the question was as to whether the reserved candidates in whose favour the age relaxation and fee concession having been granted, can participate in the open competition on merit. The Hon'ble Supreme Court answered the question in the affirmative. The question involved therein is different from that of the present case. In other words, the facts of that case are not identical to that of the present one and therefore, the said decision will have no application at all. The issue involved herein is as to whether the respondent No.1 will be entitled to age relaxation being provided to a Government servant which he could not satisfy the learned Single Judge. The respondent No.1 has failed to cross the hurdle of being eligible to participate in the competition because of his being overage and therefore, his candidature has been cancelled resulting in the non-declaration of his result. Without his result being declared, the question of his appointment will not arise at all. The MPSC cannot be directed to grant age relaxation in favour of the respondent No.1 against the OBC category for which no claim was made by him in the application and to declare his result. Having heard the learned counsel appearing for the parties and perused the materials on record, we are of the view that the judgment and order of the learned Single Judge is not sustainable in law.

[9] In view of the above and for the reasons stated hereinabove, the instant writ appeal is allowed setting aside the judgment and order dated 12-05-2016 passed by the learned Single Judge in WP(C) No.33 of 2014.