Smt. R.Chitra v. The Union Of India And ORS.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ...

WP.CT/1/2024 Smt. R.Chitra Vs.

The Union of India and others Mr. Arul Prasanth ... for the petitioner Mr. Shatadru Chakraborty Mr. D. Dwivedi ... for the Administration January 8, 2024 [SR] Item No.9 This application has been filed challenging an order dated November 30, 2023 passed by the learned Central Administrative Tribunal, Kolkata Bench, at the Circuit Bench at Port Blair. By the impugned order, the learned Tribunal directed the authorities to declare the result of the petitioner, who was allowed to sit in the written examination at the selection process, by the order of the Tribunal. The respondent was also asked to decide the issue of appointment of the petitioner as per her merit order and be called for document verification in terms of the vacancy notice. Further, the respondents were directed to consider the candidature of the petitioner in the light of what had been directed and follow the terms and conditions of the vacancy notice.

The petitioner had approached the Tribunal under Section 19 to the Administrative Tribunal Act, 1985 praying for the following reliefs:

"(I) An order setting aside the impugned list of ineligible at appearing sl. No. 301 in the final list published during the month of November, 2020.

(II) An order setting aside the impugned order dated 11.02.2021 passed by the respondent authorities.

(III) And or alternatively set aside the list of eligible and ineligible candidates for appearing for the post of Nursing Officer against advertisement dated 25.09.2018 and 21.06.2019 published by respondent no.4." By the order dated March 10, 2021, the petitioner was granted liberty to participate in the selection, subject to the result of the original application. It was further directed that the result of the petitioner would not be published without leave of the Court. The matter came up before the learned Tribunal and by the impugned order, the OA was disposed of with the following directions:

(i) Respondents were at liberty to declare the result of the petitioner in respect to the written examination conducted by them, forthwith.

(ii) Thereafter, as per the merit order, the petitioner be called for document verification, in terms of the vacancy notice. (iii) Respondents should consider the candidature of the petitioner in the light of what has been directed and further follow the terms and conditions stipulated in the vacancy notice in deciding the candidature of the petitioner in her respective category.

Mr. Prasanth, learned advocate appearing for the petitioner submits that the order passed by the learned Tribunal was bad in law and is required to be set aside for the following reasons:- (a) Although the Tribunal allowed the petitioner to appear at the selection, which in turn amounted to relaxation of age bar, the Tribunal could not have directed the authorities to consider the candidature of the petitioner on the basis of the vacancy notice. (b) The Tribunal failed to consider the fact that 54 ineligible candidates ( who had crossed the age limit), had been allowed to appear at the examination on the

basis of the certain government circulars. Those circulars provided that age relaxation could be given to those candidates who were deprived from appearing at the selection processes on account of pendency of litigation and also to those candidates who were working in the departments continuously, for a period of time on adhoc or contractual basis. (c) On the basis of such circular, 54 candidates were given age relaxation and the list was published, but the petitioner was not allowed to appear with them. The learned Tribunal, taking note of such discrimination, had allowed the petitioner to sit in the examination, thereby condoning the overage. Thus, the direction to follow the vacancy notice, was misconceived, as the vacancy notification stipulated an age bar.

(d) As the petitioner qualified and was successful at the selection, the Tribunal ought to have passed a mandatory direction for her appointment.

Mr. Chakraborty, learned advocate appearing for respondents submits that the petition before this Court is premature. The petitioner's grievance was that ineligible candidates were shortlisted for the purpose of appearing at the selection process, but the petitioner was not. They had all crossed the age limit. The Tribunal, by an interim order allowed the petitioner to appear at the selection, just like those 54 candidates. The grievance of the petitioner came to an end the moment the interim order was passed. If the petitioner is

successful, the fate of the petitioner's appointment will be guided by the rules, regulations, circulars and the vacancy notice. If the circulars were applied in case of other candidates similarly situated as the petitioner, the authority would also follow the same route. The authority would not arbitrarily deny the petitioner her right to be appointed, if similarly situated candidates were given the appointment upon condonation of age bar.

Having considered the rival contentions of the parties, this Court finds that initially the petitioner challenged the action of the respondents in not allowing her to appear at the selection, on the ground of being over aged. The petitioner prayed for cancellation of the list of similarly situated ineligible candidates, 54 in number, whose names were published in the list of candidates who had been allowed to participate at the selection process.

The only question before the Tribunal at that stage was whether the petitioner should be allowed to participate in the selection process, just like those 54 candidates who were allowed upon granting age relaxation, or whether the entire list of 54 candidates should be cancelled. Such was the petitioner's case.

When the Tribunal allowed the writ petitioner to participate in the selection process, just like those candidates whose names had been published and who were permitted by the respondents to sit at the examination, nothing further remained to be decided in the original application. Under such circumstances, the Original application was disposed of directing the respondents to publish the result of

the petitioner and proceed in terms of the vacancy notice. General directions as to how the appointment should be considered were given. There is no specific direction with regard to the age bar.

The contention of Mr. Prasanth that a mandatory order should be passed by the Tribunal to appoint the petitioner, is misconceived. The result of the petitioner had not been published when the matter was disposed of. The Tribunal directed the authorities to act as per the vacancy notification. Moreover, the apprehension of the petitioner, that the authority would not relax her age, despite existence of circulars which directly applied in the case of the petitioner, is not backed by any concrete evidence. It is only a presumption or a fear.

Under such circumstances, unless the petitioner's right has been denied by the respondents and the petitioner has been discriminated from her counterparts, this Bench cannot presume that the petitioner would be treated in a different light. If, in the earlier rounds of selection, similarly situated persons were granted age relaxation, the authorities would not unnecessarily deprive the petitioner, this Bench believes. However, whether the petitioner stood in the same footing with such candidates, is a question of fact. This issue can only be decided by the respondents. The issue can be taken into consideration at the time of deciding the matter, as per the direction of the Tribunal.

The apprehension of Mr. Prasanth is that nine other candidates who were over aged will be appointed, but the petitioner will be deprived. He relies on a particular list. This

apprehension is also not backed by any evidence. The authorities are yet to decide the entire issue of appointment of the petitioner.

Under such circumstances, this application is disposed of with the above observations. Until and unless, there is a contrary decision from the authorities which either goes against the petitioner or in favour of the persons who were similarly circumstanced by the petitioner, the right to sue would not arise. However, it is always expected that the authorities will apply the same laws, same circulars, same process and method of selection for all and shall not act contrary to Article 14 and 16 of the Constitution of India. If the petitioner is not appointed, reasons shall be disclosed by the respondents. Whether other over aged candidates were selected, but not the petitioner, shall also be disclosed in such decision.

( Shampa Sarkar, J. ) ( Tirthankar Ghosh, J. )