Ms Narjima Begum vs The State of Assam

1.Heard Mr. B.D. Konwar, the learned Senior Counsel representing the petitioners. The respondent Nos.1, 2 & 3 are represented by Mr. P.N.

Goswami, the learned Standing Counsel for the Excise Department. The learned Senior Counsel Mr. K.N. Choudhury appears for the respondent

No.7. The subsequently impleaded respondent Nos.11 â€" 19 are represented by Mr. N.J. Khataniar, the learned Counsel.

The matter pertains to recruitment of 98 Excise Constables for which approval for appointment was granted on 9.9.2010. The vacancies were

notified with Matriculation as the educational eligibility and besides, sound health and prescribed physical standards were described as essential

requirement for the job of Excise Constables, who were to be deployed in field duties. The age limit between 18-38 years plus the minimum height

requirement for the candidates’ eligibility, was also indicated. The general notification for the vacancies was advertised on 16.9.2010 in two local

newspapers.

The field testing of the applicants were done in different district headquarters where the candidates were tested on their fitness, by subjecting the

male candidates to run 1.6 k.m. under 6.5 minutes and the female candidate to cover half this distance, within the same time frame.

According to the petitioners, the selected candidate Mamani Begum (respondent No.7) was not a fit person and more importantly, she is not taller

than 145 cm and hence she did not satisfy the height requirement of 154.94 cm. The next challenge is against the respondent Nos.11 â€" 19 who had

crossed the upper age limit of 38 years and therefore consideration of their candidatures by granting them age relaxation, is questioned by the

unsuccessful candidates.

ARGUMENTS

5.1 The learned Senior Counsel Mr. B.D. Konwar submits that extraneous consideration ensured the unmerited selection of Mamani Begum

(respondent No.7), who was short statured and did not satisfy the height or the fitness requirement.

5.2 According to Mr. Konwar, there is no legal justification for age relaxation for the over aged respondent Nos.11 â€" 19 and to bring home his

challenge he argues that the job profile of Excise Constables should discourage consideration of aged candidates, by condoning their older age. The

availability of large number of young eligible candidates is also highlighted by the Senior Counsel to question the wisdom of allowing the over-aged

candidates in the fray.

6.1 Defending the process of selection, Mr. P.N. Goswami, the learned Standing Counsel for the Excise Department in his turn, refers to the

State’s counter affidavit filed on 10.2.2014 to project that the height of the candidate Mamani Begum (respondent No.7) was measured during the

field test on 9.12.2010, by the three Member Selection Committee (constituted with the Excise Officer, the Sports Officer and the Medical Officer)

and they have certified Mamoni Begum’s height as 155 cm. Accordingly Mr. Goswami argues that shortness of height projected against the

respondent No.7 is nothing but an un-substantiated assertion of the unsuccessful candidates.

6.2 On the second challenge, the departmental lawyer highlights the fact that the respondents 11 â€" 19 were the beneficiaries of age relaxation

granted by the Government and they were impleaded subsequently on 8.5.2015 in the Misc. Case No.2539/2014. By virtue of condonation of their

upper age limit, Mr. P.N. Goswami submits that challenge to their recruitment on this ground is not maintainable as the required averments have not

been incorporated in the writ petition, for the over-aged category.

The beneficiaries of age relaxation are represented by the learned Counsel Mr. N.J. Khataniar and he submits that the upper age limit for the

respondent Nos.11 â€" 19 were condoned as per governmental policy and then these candidates succeeded through open competition. The Counsel

further submits that even the aged candidate could satisfy the fitness requirement during the field test and hence their over-age cannot be a factor, for

interfering with their appointment.

8.1 Defending the selection of Mamani Begum (respondent No.7), Mr. K.N. Choudhury, the learned Senior Counsel submits that when the candidate

has been certified to have met the physical standard and demonstrated her fitness in the field test, her selection cannot be challenged on the basis of

unsubstantiated allegation made by the unsuccessful candidates. The Counsel relies on SBI vs. G.K. Deshak reported in (1994) suppli. 1 SCC 70 to

argue that when the selection authorities had made a positive evaluation of the candidature, the High Court should not question the outcome of the

assessment of the Selection Committee.

8.2 Since the respondent No.7 is certified to have satisfied the height and other physical fitness criterion during the field test, Mr. Choudhury submits

that the burden of proof shifts to the petitioners to establish otherwise, under Section 102 of the Evidence Act and the Senior Counsel projects that the

petitioners have failed to discharge their responsibility by their failure to produce any contrary material, in the rejoinder affidavit.

8.3 The Senior Counsel argues that when the three Member Selection Board constituted by the Medical Officer, the Sports Officer and the Excise

Officer had certified that Mamani Begum (respondent No.7) satisfied the minimum height requirement, the Court should draw presumption in favour

of the selected person, under Section 14 of the Evidence Act.

8.4 Placing strong reliance on this Court’s earlier judgment dated 24.3.2011 in the WP(C) No.763/2011 (Kingkumani Sharma and 7 Others vs.

State of Assam and Others), where the High Court gave the stamp of approval to the very same process of selection of Excise Constables, the Senior

Counsel argues for dismissal of this case relating to the same recruitment process.

DISCUSSION AND DECISION

To deal with the argument against the over-aged candidates, the requisite pleadings are available in the Impleading Application i.e. the Misc. Case

No.2539/2014 as also in the compilation prepared therefrom by the writ petitioners. The respective birth date of the over-aged appointees, can be seen

from the annexed gradation list. The list shows that the respondent Nos.11 â€" 19 were born on various dates between 15.6.1968 to 26.9.1972.

Therefore, they did not fulfill the upper age limit of 38 years. Their over-age was individually condoned by the Commissioner of Excise on various

dates, starting from 23.9.2010 to 12.1.2012. The condonation letter(s) annexed to the counter affidavit filed on 3.2.2016, show that age upto 45 years

was condoned in a routine manner for the respondent Nos.11 â€" 19. The power of relaxation was invoked from the Govt. O.M. dated 27.3.1980 and

4.1.1992 respectively, by the Commissioner of Excise. But most importantly, the parties are well aware of the challenge and have accordingly

contested the case.

The condonation of the age limit for recruitment is permissible only in the interest of fair dealing or in public interest, as is specified in the Govt.

Circular No.AAP 34/50/26 dated 3.5.1951 read with the OM dated 27.3.1980. But the condonation order(s) issued by the Excise Commissioner, do

not however suggest that, power was invoked either in public interest or in the interest of fair dealing. Moreover, since Excise Constables are to be

deployed in field duties, it is also a matter of concern whether, physical fitness was compromised for the over-aged applicants. Undoubtedly an aged

person can also be a fit person but the question is whether age relaxation was justified in public interests when, thousands of young candidates were

available in the fray, for consideration. That apart, it is natural that fitness would gradually diminish as the person grows older. Therefore, it is difficult

to comprehend how condonation of upper age for the over-aged applicants would be justified either in public interest or to ensure fair dealing, when a

large number of younger candidates were already competing for recruitment.

On the above aspect, the Supreme Court in Dr. Ami Lal Bhat vs. State of Rajasthan, reported in (1997) 6 SCC 614, declared that the power of

relaxation can be invoked only in special circumstances and that too in public interest. For instance, it would be justified in a situation where, the only

suitable candidate has crossed the upper age limit. The Court has also deprecated the practice of relaxation for all and sundry aspirants.

In the subsequent judgment in Food Corporation of India vs. Bhanu Lodh, reported in (2005) 3 SCC 618, the Supreme Court enunciated the

applicable principles as follows:-

“13…………………..While the maximum age prescribed under the Recruitment Rules is 35/40 years for the concerned posts, departmental

candidates in the age of 52-53 years were proposed to be appointed. Even assuming that there is a power of relaxation under the Regulations, we

think that the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations. The power of relaxation is intended

to be used in marginal cases where exceptionally qualified candidates are available. We do not think that they are intended as an 'open Sesame' for all

and sundry.…………..â€​.

The ratio of Dr. Ami Lal Bhat (Supra) and Bhanu Lodh (Supra) if applied here to the over-aged category, the inevitable conclusion is that the

respondent Nos.11â€"13 cannot be considered to be exceptionally deserving for appointment to the post of Excise Constable, particularly when

younger candidates in large numbers were available for consideration in the recruitment process. Therefore, in my considered understanding, the

element of fair dealing or public interest will not be attracted in this case. Hence the age relaxation to lend validity to the candidature of the respondent

Nos.11 â€" 19 cannot be legally sustained and consequently their appointment is held to be vitiated.

The next issue to be considered is whether the learned Single Judge’s rejection of the earlier challenge in the WP(C) No.763/2011 for the

recruitment process would justify a similar fate for the present group of challengers. The petitioners in that case could not participate in the selection

process as their basic case was that the vacancies of Excise Constables were not advertised in the newspaper. The selection of unfit person was also

alleged in that proceeding. It was however seen by the learned Judge that besides circulation of the vacancies in the employment exchanges, notice(s)

were also published in the Assam Tribune and in the Agradoot newspaper. Thus the Court did not find any merit in the challenge by those who did not

participate in the selection process. Besides, the selected candidates were not arrayed in the proceeding and sweeping allegation without any

foundation were found to be made in the earlier case. Bearing in mind these deficiencies, that challenge was found devoid of merit and thus the

learned Judge declined to interfere with the selection process.

But what is distinguishable in the current proceeding is that, specific pleadings are made on how the selection process is vitiated and the concerned

selectees have also been arrayed as respondents in the case. Therefore, I am of the considered opinion that the previous decision rendered by the

learned Single Judge on 24.3.2011 in the WP(C) No.763/2011 should not stop the Court from examining the merit of the later challenge.

When the bona fide of the selection exercise is questioned on specific parameters, such as a candidate not measuring upto the height requirement

and unwarranted condonation of upper age limit for the over-aged group, the scrutiny of the Court should not be a roving enquiry but should stay

confined to only the specific challenge made against the specific selectees.

As regards the pointed challenge on the deficient height of Mamani Begum (respondent No.7), this Court had earlier issued an order on 21.5.2014

for measuring her height on 16.6.2014 but in the subsequent order passed by the learned Judge, on 16.6.2014 in the I.A.(Civil) No.1847/2014 filed by

the respondent No.7, the personal appearance of Mamani Begum (respondent No.7) was temporarily dispensed by the Court.

Mr. B.D. Konwar, the learned Senior Counsel submits that it is a simple matter of verification of the height which can be done even now without

any difficulty. It is the specific case of the petitioners that the candidate Mamani Begum (respondent NO.7) is of short stature and does not satisfy the

height requirement of 154.94 cm. In the field evaluation done on 9.12.2010, the height of this candidate is shown as 155 cm. The height of an adult

person would normally remain static and the allegation here is not marginal but the projected shortfall is of around 10 cm. from the requirement of

154.94 cm. That apart, the selection of respondent No.7 is projected to be for extraneous consideration as she was a close relative of the Excise

Commissioner.

As earlier noted, at one stage of the proceeding, the learned Judge had ordered for personal appearance of the respondent No.7, to have her

height measured under Court’s supervision but this was temporarily stalled by the subsequent order of the Court, at the instance of the respondent

No.7. When the consistent argument is that a short statured person is wrongly certified to have satisfied the height requirement, the Court feels that

instead of trying to undermine either version, steps should be taken to settle the issue finally instead of acting on presumption, perception or projection.

If the certification in the field test is correct, the appointee should have no hesitation to have her height re-verified. But what is significant here is that

she is stoutly resisting the move and this is unnatural for a person, if the truth is on her side. In such circumstance the cause of justice would be better

served if the controversy is settled once for all. Moreover the correct height of respondent No.7 can be ascertained without prejudice, by a simple

exercise of re-measurement. If the respondent Mamani Begum satisfies the height requirement, her selection and appointment stands protected. But if

she is found to be shorter than the prescribed height, her selection and appointment would be unmerited and the appointee must then face the

consequences. Accordingly, direction is issued to the authorities to verify the height of the respondent No.7 and if she doesn’t measure up to the

required specification, the follow up action should be taken, with due opportunity to the appointee.

In so far as the respondent No.11 â€" 19 are concerned, when we bear in mind that large number of youthful candidates who satisfy the age

requirement were available, the age relaxation for those beyond 38 years cannot be legally sustained, either on the criteria of public interest or even

under fair dealing. The candidature of the over-aged group in my perception, will be directly hit by the ratio of Dr. Ami Lal Bhat (Supra) and Bhanu

Lodh (Supra). It is accordingly declared that the appointment of respondent Nos.11â€"19 was unmerited. As a result, the authorities should take steps

for termination of the illegal appointees by issuing notice and providing opportunity to the over-aged category. It is ordered accordingly.

With the above order, the case stands allowed without any order on cost.