Sri Ujjal Ghosh vs Prabir Kumar Chattopadhyay & ors

A post of cashier in Shimurali Sachinandan College of Education (hereafter the

college) was created by the Government of West Bengal, Higher Education

Department, vide memo dated July 20, 2009. Such memo required recruitment

to such post being made in strict observance of the procedure as prescribed in

Government Orders dated September 9, 2008 and November 19, 2007. Pursuant

thereto, advertisements were inserted in English and Bengali dailies inviting

applications from graduates for appointment on such post, within July 10, 2010.

Shri Prabir Kumar Chattopadhyay (hereafter the writ petitioner) had been

employed by the Governing Body of the college initially as a contractual job

worker with effect from August 3, 2004 and subsequently as a contractual clerk

with effect from September 2, 2006. He intended to compete with others for

appointment on such post of cashier and accordingly, had submitted an

application with a prayer to permit him participate in the process. His prayer was

refused on the ground that he had crossed the prescribed age limit for

appointment on the said post.

Aggrieved by the refusal, which was not in writing, the writ petitioner had

invoked the jurisdiction of this Court by presenting W.P. 16807(W) of 2010. An

interim order was made on August 13, 2010 by a learned Judge, whereby the

authorities of the college were directed to permit the writ petitioner to appear in

the interview which was scheduled to be held on August 19, 2010. However, an

order of injunction was passed restraining finalization of the panel. In

compliance with such order, the writ petitioner duly appeared at the interview;

however, the panel was not finalized.

The writ petition appeared for final hearing on October 4, 2010 before the self-

same learned Judge who had passed the interim order earlier. His Lordship noted that the writ petitioner was working in the college in an unapproved post

from August 3, 2004 and that a post of cashier having been sanctioned, the

college had initiated recruitment process wherein he had participated in

pursuance of the interim order dated August 13, 2010. Upon hearing the

appearing parties (the writ petitioner and the college), the learned Judge disposed

of the writ petition by judgment and order dated October 4, 2010, the operative

part whereof reads as follows:

"Since I am of the opinion that the maximum prescribed age limit in the case of the petitioner ought to be relaxed, I direct the college authorities to give effect to the panel prepared on the basis of such interview in which the petitioner participated in pursuance of the order of this Court. In the event the petitioner becomes eligible for appointment through the selection process already initiated, then his appointment shall be accepted by the Director of Public Instruction provided he fulfills other eligible (sic eligibility) criteria. The Director of Public Instruction shall not withhold approval solely on the ground of the petitioner having crossed the maximum prescribed age, in the event the petitioner is appointed by the college authorities. With this direction, the writ petition shall stand disposed of. Since this writ petition is being disposed of without calling for any affidavit, the allegations made in the writ petition shall be deemed to have not been admitted."

Pursuant to the aforesaid order, the authorities of the college finalized the

selection process by publishing a panel. While the writ petitioner figured at the

top of the panel, one Ujjal Ghosh was placed in the 2nd position in order of merit.

The panel having been forwarded to the Director of Public Instruction (hereafter

the DPI), he approved the same resulting in appointment of the writ petitioner on

the post of cashier.

The said Ujjal Ghosh was not a party to W.P. 16807(W) of 2010. Having learnt

that the writ petitioner was permitted to participate in the recruitment process

pursuant to the interim order dated August 13, 2010 and that the panel was

finalized once such writ petition was disposed of by the judgment and order

dated October 4, 2010, the same was carried in appeal by the said Ujjal Ghosh (hereafter the appellant) together with applications for leave to appeal and

condonation of delay.

A coordinate Bench found the appellant''s right to have been affected by the

impugned judgment and order and, accordingly, by order dated September 7,

2011, not only such Bench granted leave to him to prefer an appeal but also

condoned the delay in its presentation. In course of hearing of the appeal,

another coordinate Bench by an order dated November 8, 2013 directed Mr.

Biswas, learned advocate for the college to produce the entire records with regard

to the engagement of the writ petitioner as an adhoc clerk. Thereafter, no

effective hearing took place till at least September 2, 2015 when one other

coordinate Bench directed the authorities of the college to file an affidavit

annexing copy of the relevant records that might have a bearing on the present

appeal. On February 25, 2015, it was noticed that neither were the records

produced nor affidavit filed by the college despite the earlier directions.

Ultimately, an affidavit was filed by the college which was taken on record of the

appeal by an order dated March 4, 2015. The appeal was heard in part by the

said coordinate Bench on March 30, 2015 but because of change of

determination, marking of part-heard stood cancelled by an order dated June 19,

2015. It is thereafter that the appeal was listed before us.

By an order dated March 10, 2017, we had granted liberty to the appellant to file

a supplementary affidavit and the parties were given the liberty to exchange their

counter and rejoinder before the next date of hearing.

None has disputed that on the date of creation of the post of cashier i.e. July 20,

2009, the writ petitioner had crossed the age of 40 years. In terms of the

Government orders referred to in the memo creating the post, an incumbent

ought to have been not more than 37 years of age.

Mr. Lahiri, learned advocate for the appellant, by referring to the decision of the

Supreme Court reported in AIR 2012 SC 291 [Jamaluddin v. State of Jammu &

Kashmir & ors.] contended that by a judicial interpretation provision stipulating

upper age limit for appointment cannot be relaxed and, therefore, the learned

Judge was in error in observing that the maximum prescribed age limit ought to

be relaxed. It was also contended that no reason was assigned by the learned

Judge as to why the age limit ought to be relaxed in favour of the writ petitioner.

Referring to the affidavit filed by the authorities of the college pursuant to the

order dated September 2, 2015, Mr. Lahiri contended that the writ petitioner was

unduly favoured with marks for experience that he had acquired while serving

the college from 2004 in unsanctioned post(s). According to him discharge of

service in an unsanctioned post could not have been counted for experience and

if 5 (five) marks awarded in favour of the writ petitioner were deducted, the

appellant would automatically figure at the top of the merit list. He, accordingly,

prayed for (i) quashing of the impugned judgment and order, (ii) a direction on

the college to recast the panel deleting the name of the writ petitioner, and (iii) a

direction on the official respondents to appoint the appellant.

Mr. Kar, learned advocate representing the writ petitioner contended that the

discretion exercised by the learned Judge in favour of the writ petitioner ought

not to be lightly interfered. According to him, the writ petitioner had been serving

the college since 2004, albeit in unsanctioned posts, without any blemish and he

having returned successful in a duly conducted selection process, was entitled to

relaxation of age in terms of Rule 8 of the West Bengal Service Rules, Part - I. It

was further contended that the Government itself by a memo dated August 10,

2000 had condoned the overage of two candidates who were appointed on the posts of steno-typist and laboratory attendant in Netaji Mahavidyalaya and,

therefore, there is no reason to treat the writ petitioner differently.

Mr. Kar relied on the decision of the Supreme Court reported in (2006) 4 SCC 1

[ Secretary, State of Karnataka and others v. Umadevi (3) and others] and

submitted that a small window has been kept open through which service of

irregular appointees as distinguished from illegal appointees could be

regularized. According to him, since the writ petitioner''s initial entry in the

college was not illegal he is entitled to the benefit flowing from paragraph 53 of

the said decision.

Relying on the decision of the Supreme Court reported in (2014) 4 SCC 583

[ Amarendra Kumar Mohapatra v. State of Orissa], Mr. Kar submitted that the

writ petitioner having worked for 6 (six) long years in the college without any

complaint was entitled to regularization of his service.

Finally, Mr. Kar appealed to us to bear in mind the present socio-economic

conditions and the undue hardship to which the writ petitioner would be

subjected, after having served the college as a cashier for the last seven years

with credit. According to him, the writ petitioner has a family and it would not be

in the interest of justice to dislodge him from service at this distant point of time

when he has a little more in excess of a decade''s service left.

Mr. Biswas appearing for the college contended that the writ petitioner was not

granted permission to participate in the selection process because he was

overaged and it was only pursuant to the interim order dated August 13, 2010

that he could attend the interview as well as participate in the written test and

the computer test that were conducted. According to him, but for the

intervention of this Court, the writ petitioner would not have been allowed to participate in the selection process. He submitted that the college would comply

with any order that this Bench considers fit and proper, on facts and in the

circumstances.

We have heard the learned advocates for the parties and perused the materials

placed before us.

Mr. Kar did not dispute that the writ petitioner did not have any prior experience

of working as a cashier. It was also not disputed that whatever service the writ

petitioner had put in between 2004 and 2010 in the college, were in respect of

unsanctioned posts. These circumstances, in our opinion, are vital to hold in

favour of one and against the other.

In Jamaluddin (supra), the Supreme Court in paragraph 15 held as follows:

"15. In the present case the advertisement of the Public Service Commission issued in the year 2002, required the persons concerned to be of less than thirty-five years of age at the relevant time. That age-limit applied to all the candidates. There was no age relaxation in favour of the candidates belonging to the Scheduled Castes or the Scheduled Tribes, though there was a quantum of reservation provided for them. The earlier resolution of the Full Court of the High Court passed in February 1982, will therefore, have to be read as providing only for the quantum and not for any age relaxation. If there is no age relaxation in the rules, the same cannot be brought in by any judicial interpretation. ***"

(underlining for emphasis by us)

It would also be apposite at this stage to quote few paragraphs from the decision

of the Supreme Court reported in (2011) 7 SCC 397 ( Union of India v. Arulmozhi

Iniarasu ), which also arose out of a claim for regularization upon relaxation of

upper age limit. The Central Administrative Tribunal was of the view that the

ratio of the decision reported in (2008) 1 SCC 798 ( Nagendra Chandra v. State of

Jharkhand ) was applicable to the claim of the employees and, therefore, they were entitled to the same relief as granted in that case. The High Court did not

interfere, whereupon the Supreme Court was approached. After noting the well

settled principle of law in the matter of applying precedents, this is what the

Court held:

"15. Bearing in mind the aforenoted principle of law, we may now refer to the decision in Nagendra Chandra. It is plain from a bare reading of the said decision that the question which fell for consideration before a Bench of three learned Judges of this Court was as to whether the appointments of the appellants in that case were illegal or irregular. This Court opined that since the appointments made were not only in infraction of the recruitment rules but also violative of Articles 14 and 16 of the Constitution of India, these were illegal. It was thus, held that the appellants would not be entitled to get the benefit of the directions contained in Umadevi (3) case, which are applicable only to those qualified employees who were appointed irregularly in a sanctioned post. Having come to the conclusion that the subject appointments being illegal, the competent authority was justified in terminating the services of the employees concerned and the High Court was also justified in upholding the same, in our view, the relied upon observation in the penultimate paragraph of the judgment in Nagendra Chandra does not appear to be consistent with the ratio of the decision of the Constitution Bench in Umadevi (3) case. In the said decision it has clearly been held that the courts are not expected to issue any direction for absorption/regularisation or permanent continuance of temporary, contractual, casual, daily-wagers or ad hoc employees merely because such an employee is continued for a long time beyond the term of his appointment. It has also been held that such an employee would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. Therefore, in our opinion, the said observation cannot be said to be an exposition of general principle of law on the point that a long length of service, dehors the relevant recruitment rules for the post, is a relevant factor for waiver or relaxation of any eligibility criterion, including age-limit, for future regular selections for the post. Obviously, the observation, general in nature, was made by this Court in exercise of its jurisdiction under Article 142 of the Constitution of India and, therefore, cannot be treated as a binding precedent. It has to be confined to the peculiar facts of that case.

We may now advert to the second limb of the question in para 13. The issue need not detain us for long as in our view the factual position as obtaining in the present case does not fit in with the fact situation in Nagendra Chandra. In the instant case, indubitably, the respondents were engaged as part-time contingent casual labourers in the office of the Commissioner of Central Excise for doing all types of work as may be assigned to them by the office. Their part-time engagement was need based for which they were to be paid on hourly basis. Though their stand is that many a times they were required to work day and night but it is nowhere stated that they were recruited or ever discharged the duties of a ''Sepoy'' for which recruitment process was initiated vide public notice dated 14-1-2008 and the Tribunal as also the High Court has directed the appellants to grant relaxation in age-limit over and above what is stipulated in the recruitment rules/advertisement. In view of the stated factual scenario, in our opinion, the engagement of the respondents as casual labourers even for a considerably long duration did not confer any legal right on them for seeking a mandamus for relaxation of age- limit.

We have no hesitation in holding that Nagendra Chandra case has no application on facts in hand and the impugned direction by the Tribunal, as affirmed by the High Court based on the said decision, was clearly unwarranted."

These decisions appear to give a clear answer to the problem at hand. Unless the

rules applicable to the selection process confer a power of relaxation, such

relaxation cannot be brought about by a judicial fiat.

The Government Orders dated November 19, 2007 and September 9, 2008 do not

envisage relaxation of upper age limit. Sensing trouble, Mr. Kar sought to take

shelter of Rule 8 of the West Bengal Service Rules.

Reference to Rule 8 by Mr. Kar, in our opinion, is misconceived for more reasons

than one. Rule 8 confers a power on the Heads of Departments, in exceptional

cases where they or their subordinate officers are competent to make the

appointment, and for reasons to be recorded in writing, to condone an excess in

age over the prescribed limit. First, employees of a college are not civil post

holders governed by the West Bengal Service Rules. If indeed the employees of

the college were civil post holders governed by such rules, the jurisdiction of the

State Administrative Tribunal was required to be invoked in terms of the

provisions of the Administrative Tribunals Act . The writ petitioner himself having

approached this Court seeking appropriate writ, we are not prepared to accept

the argument that in terms of Rule 8 the writ petitioner was entitled to

condonation of age. Secondly, the memo dated July 20, 2009 creating the post of

cashier required the college to follow Government Order Nos. 585-Edn(CS) dated

September 9, 2008 and 915-Edn(CS) dated November 19, 2007. Although the same do not specifically lay down the criterion regarding age, the parties have

agreed that at the relevant time the upper age limit was 37 years. As has been

held in Jamaluddin (supra) and Arulmozhi Iniarasu (supra), by a judicial fiat the

age limit cannot be relaxed. Simply because the writ petitioner had discharged

service as job worker and thereafter as a contractual clerk, which were not

sanctioned posts, we find sufficient merit in the argument of Mr. Lahiri that the

writ petitioner without having any semblance of right to participate in the

selection process was conferred such right by an erroneous order of the writ

court and that things ought to be set right. Thirdly, it is the own version of the

writ petitioner that he had sought for permission to participate in the selection

process for recruitment on the post of cashier but the college had refused him

such permission which, ultimately, prompted him to approach the writ court for

redress. Even if Rule 8 were held to be applicable insofar as the case of the writ

petitioner is concerned, the college having declined to condone an excess in age

over the prescribed limit, it was not open to the writ court to substitute itself for

the Head of the Department (read: the Governing Body of the college) and permit

the writ petitioner''s participation in the process of selection.

Insofar as the point raised by Mr. Kar that the upper age limit has been relaxed

in respect of two other employees is concerned, we may answer it by reproducing

another paragraph from the decision in Arulmozhi Iniarasu (supra). It reads:

"26. Lastly, as regards the submission that the action of the appellants is highly discriminatory inasmuch as some similarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. ***"

We shall now move on to deal with the other points.

It appears from the documents furnished by Mr. Biswas that the college had

resolved in its meeting held on July 12, 2004 to recruit a job worker on no work

no pay basis to meet certain problems then existing in the college and the

Chairman of the Governing Body was authorized to finalize the selection without

delay. The writ petitioner came to be appointed on August 1, 2004 on condition

that he would be paid Rs.93/- per day as contractual job worker for clerical job

including computer typing. From time to time, such appointment was renewed.

In 2006, the writ petitioner was appointed on contractual basis as a clerical staff

(Class - III) with effect from September 2, 2006 for a year initially. The writ

petitioner was to be paid Rs.4,000/- per month and on reappointment, it was

resolved to pay him Rs.10,000/- with effect from June 1, 2009. As noticed above,

service rendered by the writ petitioner between 2004 and 2010 were in

unsanctioned posts.

What would be effect of such service? Reference, at this stage, can also be made to

a Full Bench decision of this Court reported in 2013 (1) CHN (CAL) 9 [Gobinda

Chandra Mondal v. Rabindra Mahavidyalaya]. It has been held in paragraph 25

thereof as follows:

"25. If the appointment is made without undertaking selection procedure under Rule on ad hoc or temporary basis engaging the candidates having requisite qualification namely age and education at the time of appointment against substantive post the candidates in those cases shall be allowed to compete and/or participate in the selection process along with other eligible candidates at the time of regular recruitment process condoning the age as they have acquired right to be considered. Of course, their services must be continuous and without any break in the vacancy of substantive post at the time when the regularization is demanded and selection process undertaken. But in case where the appointees are not qualified at all and they have been engaged for rendering services as an ad hoc basis or temporary measure their case cannot be considered under any circumstances either against substantive post or the post yet to be created."

(underlining for emphasis by us)

In our reading of the aforesaid decision, a person discharging service on adhoc or

temporary basis in an institution/organization can seek relaxation of age limit in

very rare cases. The age factor could be condoned if the person has been working

on adhoc or temporary basis on a sanctioned post, which is sought to be filled up

on substantive basis. Condonation of the age factor would not be permissible if

such person had been working either on an unsanctioned post, or working on

adhoc basis on a sanctioned post but seeks condonation of age while seeking to

participate in a process initiated for substantively filling up a different sanctioned

post. This being the ratio of the decision in Gobinda Chandra Mondal (supra), we

have no doubt in our mind that the writ petitioner cannot claim that his service

ought not to be disturbed upon interdiction of the impugned judgment and order.

Let us now consider whether paragraph 53 of the decision in Uma Devi (supra) in

any way comes to the rescue of the writ petitioner. Having read the same, we are

afraid that it does not. Paragraph 53 deals with the case of duly qualified persons

who might have been appointed on duly sanctioned vacant posts irregularly, and

not illegally, have continued to work for ten years or more without the intervention

of the orders of the courts/tribunals. That is not the case here and, therefore,

reliance placed thereon is misconceived. The writ petitioner joined service without

facing any competition from others. There was no (sanctioned) post on which he

could be appointed. His entry in service thus, was, through the back-door and it is

settled law that such entrants have no legal right to maintain a writ petition.

The decision in Amarendra Kumar Mohapatra (supra) has also been perused. The

questions that arose for decision before the Supreme Court have been noted in

paragraph 21 of the decision. In this appeal, we are not concerned with the

question of constitutional validity of any legislation and, therefore, the ratio of

such decision does not come in aid of the writ petitioner.

Finally, the point of hardship needs to be considered. We are conscious that as a

result of the above discussions the writ petitioner is on the brink of losing his job

and, thus, his livelihood; however, sight cannot be lost of the legal position that

discretion exercisable by a writ court cannot be coloured by sympathetic

considerations. We regret our inability to save the appointment of the writ

petitioner on the ground urged.

For the foregoing reasons, we set aside the judgment and order dated October 4,

2010 and dismiss W.P.16807(W) of 2010.

The result thereof is that the writ petitioner shall cease to remain in service as

cashier of the said college with immediate effect. However, since the writ petitioner

has earned his remuneration by working as such, we do not propose to take away

any monetary benefit from him, for, that would cause hardship to him.

Assessment of the relative merits of the candidates who participated in the process

is not a subject matter before this Court. Such assessment was also not

challenged by anyone other than the appellant. We, however, do not propose to

approve such assessment since that is not a matter within our domain. We are of

the clear view that this matter ought to be looked into by the DPI.

In the circumstances, we further direct the college to recast the panel deleting the

name of the writ petitioner on the basis of the marks awarded to the candidates. The recast panel shall be forwarded to the DPI for his further approval within a

month from date of receipt of a copy of this judgment and order. The DPI shall give

his decision regarding approval of the recast panel within a month of its receipt.

The DPI while examining the recast panel shall ascertain whether marks have

been appropriately awarded to all the candidates for ''experience'' and then proceed

to approve it. If the DPI is of the opinion that the panel does not deserve approval,

he shall be at liberty to pass appropriate order in accordance with law. However,

none of the empaneled candidates shall be treated to be over-aged since on the

last date for receiving applications pursuant to the advertisements issued by the

college they were within the prescribed age limit.

In the event the panel is approved by DPI, the authorities of the college shall

proceed to issue appointment letter in favour of the first empanelled candidate

within 15 (fifteen) days from date of receipt of approval.

The writ petition shall stand dismissed and the appeal is disposed of, without

order for costs.

Photocopy of this judgment and order, duly counter-signed by the Assistant Court

Officer, shall be retained with the records of W.P. 16807(W) of 2010.

Urgent photostat certified copy of this judgment and order, if applied, may be

furnished to the applicant at an early date.