Vijay Gopal And ORS v. Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [ CIRCUIT BENCH AT PORT BLAIR ] *** PRESENT : THE HON'BLE JUSTICE AMRITA SINHA AND THE HON'BLE JUSTICE ANANYA BANDYOPADHYAY WP.CT/21/2023 VIJAY GOPAL AND OTHERS ... PETITIONERS VS.

UNION OF INDIA AND OTHERS ... RESPONDENTS For the petitioners :

Mr. Gopala Binnu Kumar For the Union of India :

Mr. Tulsi Lall For the respondent :

Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi Date of hearing :

22nd August, 2023 Date of Judgment :

25th August, 2023 AMRITA SINHA, J.

1.

The order dated 27th April, 2023 passed by the Central Administrative Tribunal, Kolkata bench in O. A. No. 351/431/2022, MA No. 351/101/2023 and MA No. 351/168/2022 in the matter of Shri Vijay Gopal and others vs. Union of India and others is impugned in the instant writ petition.

2.

The prayer of the petitioners seeking relaxation of the recruitment rules was rejected by the Tribunal. The petitioners are aggrieved by the same.

3.

The facts of the instant case are as follows:- a) In response to a vacancy notice published in the daily newspaper on 19th February, 2020 inviting applications from local eligible candidates for filling up the vacant posts of Master 1st Class and Chief Engine Driver (sea going) in the AFLOAT establishment of the Directorate of Shipping Services, A & N Administration, the petitioners applied for the same.

b) The prescribed age limit for recruitment in respect of both the posts was mentioned as not exceeding thirty years. c) As admittedly all the applicants were over aged accordingly, none qualified for recruitment.

d) The petitioners applied before the authority seeking relaxation of age limit for being considered for recruitment. e) Though their prayer for relaxation of the age criteria stood refused but the petitioners being otherwise found eligible have been engaged on contract basis by the Directorate of Shipping Services to perform the work of Master 1st Class and Chief Engine Driver (sea going).

f) The petitioners refer to the notification dated 12th February, 2016 publishing the Andaman and Nicobar Administration (Chief Engine Driver (sea going) in the Directorate of Shipping Services) Recruitment Rules, 2016, in support of the submission that there is a provision to relax the Rules with respect to any class or category of persons.

g) It is the specific case of the petitioners that for the purpose of obtaining the certificate of competence a candidate has to put in quite a few years of training and service which is difficult to attain within the prescribed age limit of thirty years.

h) The petitioners refer to series of request made by the Assistant Director (Admn.) to the Assistant Secretary (Shipping) recommending relaxation of age and qualification for appointment to the said posts. The recommendations mention that approval of the competent authority is to be taken to engage the candidates who are otherwise qualified to overcome the acute shortage faced by the Directorate to crew the vessels with qualified manpower to provide uninterrupted service in public interest.

i) As no response was forthcoming to the proposal for relaxation of age limit, the petitioners approached the

Central Administrative Tribunal with a prayer to direct the competent authority to forward/place the issue of age relaxation before the Lieutenant Governor (Administrator) for consideration under Rule 5 of the Recruitment Rules. j) The learned Tribunal by order dated 28th October, 2021 directed the competent authority to forward the proposal to the Lieutenant Governor for appropriate order to be passed within a stipulated time period. The Tribunal further directed that in the event the petitioners are found entitled to the relief as prayed, appropriate order in accordance with law be issued.

k) In compliance of the direction passed by the learned Tribunal, the department perused the case and was of the opinion that the upper age limit or qualification for direct recruitment should not be relaxed without prior concurrence of DoPT.

l) The department again forwarded the proposal for relaxation which was reexamined and relaxation was refused on the ground that since the matter has been under process for recruitment, the qualifications cannot be changed at this stage.

m) The aforesaid order of the Deputy Secretary (Shipping) was challenged before the Tribunal and by order dated 27th

April, 2023 the original application filed by the petitioners stood dismissed.

The order of dismissal of the original application is presently under challenge in the instant writ petition. 4.

Learned advocate for the petitioners contends that the age limit and the qualification mentioned in the Recruitment Rules and the vacancy notice is practically unattainable. The requisite education qualification and experience as prescribed in the Recruitment Rules is difficult to attain within the age limit of thirty years. 5.

The hardship in attaining the minimum qualification and experience has been mentioned in the original application. 6.

It has been submitted that as the prescribed qualification could not be attained within thirty years of age accordingly, none qualified for recruitment. In the absence of qualified candidates the Directorate is not in a position to recruit anybody for which the department is facing acute shortage of crew and as such is not in a position to render service to the public at large. In the interest of the department and with a view to provide uninterrupted service to the public, the recommendation of the department for relaxation of the age limit and educational qualification ought to be accepted by the Administration. 7.

The petitioners argue that as they possess the essential qualification for recruitment as such the department has engaged

them on contract basis to perform the duties of the posts which were advertised for recruitment.

8.

Prayer has been made to direct the competent authority to take a call on relaxation.

9.

In support of the aforesaid submissions, learned advocate for the petitioners relies on the judgment delivered by the Hon'ble Supreme Court in the matter of Ashok Kumar Uppal and others vs. State of J & K and others reported in (1998) 4 SCC 179, paragraph no. 26, Sandeep Kumar Sharma vs. State of Punjab and others reported in (1997) 10 SCC 298, paragraph no. 7 and J. C. Yadav and other vs. State of Haryana and others reported in (1990) 2 SCC 189, paragraph nos. 6 to 13.

10.

The prayers of the petitioners are opposed by the learned advocate representing the respondents. It has been submitted that there is no provision in the Recruitment Rules to relax the age or educational qualification of a candidate seeking recruitment. 11.

It has been argued that fixing up the essential criteria for recruitment is the domain of the employer and an intending candidate cannot seek for any direction praying for relaxing the same. The Court ought not to pass any order directing the employer to fix up the essential criteria for recruitment at the instance of an ineligible candidate.

12.

It has been contended that the general power to relax as provided in the recruitment rules cannot be applied in the present case as the petitioners failed to fulfill the conditions as mentioned in the said Rule.

13.

Learned advocate representing the respondents distinguish the decisions relied upon by the petitioners and submits that none of the orders passed by the Hon'ble Supreme Court directs the authority to relax the criteria for recruitment. On the contrary, the decisions in respect of cases where relaxation was allowed, fell for judicial scrutiny.

14.

In support of their stand learned advocate for the respondents rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of Small Scale Industrial Manufacturers Association (Registered) vs. Union of India and others reported in (2021) 8 SCC 511, paragraph nos. 62-76.

15.

Prayer has been made for dismissal of the writ petition. 16.

We have heard and considered the submissions made on behalf of both the parties.

17.

The petitioners herein have admitted in no uncertain terms that they do not fulfill the criteria mentioned in the vacancy notice and they are ineligible for recruitment. The petitioners seek relaxation of the age limit and the educational qualification for being eligible for recruitment.

18.

The petitioners rely upon the general power of relaxation available in the Recruitment Rules and submit that the authorities may be directed to exercise the said power.

19.

The petitioners have tried to convince the Court by highlighting the level of difficulty and hardship one has to overcome to fulfill the requisite qualification prescribed in the Recruitment Rules. It is not the case of the petitioners that the requisite qualification at the prescribed age is absolutely unattainable. Their case is that the same is hard and difficult to attain.

20.

The fact that the department is unable to find out a suitable candidate for recruitment has also been stressed with submission that for the purpose of providing uninterrupted service to the public, the department has engaged the petitioners on contractual basis. 21.

It is interesting to note that even though the petitioners are aggrieved by the essential criteria mentioned in the Recruitment Rules but even thereafter they do not challenge the Recruitment Rules per se. They only seek relaxation of the requisite criteria for their recruitment.

22.

This Court is of the opinion that the employer is the best person to fix up the requisite criteria for recruitment of employees. It is not the function of the Court to pass direction upon the employer to relax the requisite criteria for the purpose of recruitment. Recruitment rules are framed by the employer after taking into consideration various factors. The Court ought not to interfere in the

matter and pass direction upon the employer for relaxing or varying the same.

23.

Assuming that suitable candidates are not available in response to the vacancy notice published, but the same is not a valid reason to tinker with the recruitment rules. It is for the department to find out means and mode to select eligible candidates for recruitment but certainly not at the cost of altering or varying the recruitment rules. If, for any reason, the department requires relaxation of the said Rules then, they are free to do so in accordance with law. If there is a valid reason for relaxing the said Rules then the department can very well proceed with the same and no direction from the Court is called for. The Court, not being an expert body to decide the requisite criteria for recruitment, ought not to venture into the said field and pass any direction to relax the prescribed rules. 24.

The precedents relied upon by the petitioners in support of their case do not help them in any manner whatsoever. In all the cases the relaxation which was granted by the authority fell for judicial scrutiny. The Court did not pass any order directing the authority to relax the rules for the benefit of a particular candidate or a class/category of candidates. The Court merely reviewed whether the relaxation was proper or not.

25.

The learned Tribunal dealt with the matter in details and rightly dismissed the Original Application on the ground that the age limit prescribed under the recruitment rules are basic requisite

criteria for recruitment and denial to relax the same cannot be subjected to judicial interference.

26.

This Court is of the opinion that in the facts and circumstances of the instant case, the order passed by the learned Tribunal does not call for any interference.

27.

The writ petition fails and is hereby dismissed. There shall, however, be no order as to costs.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.

( Amrita Sinha, J. ) I agree.

( Ananya Bandyopadhyay, J.)