Paonam Nilamani Singh vs Union Of India

[1] Heard Ms. Geetarani Waikhom, learned Advocate appearing for the petitioner and Shri S. Suresh, learned ASG appearing for the respondents.

[2] The validity and correctness of the letter dated 02-07-2020 issued by the CO, 14 Manipur Bn. NCC, Imphal, Manipur and the letter dated 29-06-2020 issued by the Lt. Col. AD(A), NCC NER are under challenge in this writ petition and in addition thereto, it has been prayed by the petitioner to issue a writ of mandamus or any other appropriate writ to consider the case of the petitioner for selection to the post of the Associate National Cadet Corps Officer (ANO) of NCC Trp. No. 6, Nambol Higher Secondary School, 14(M) Bn. NCC, Imphal.

[3.1] According to the petitioner, he is presently serving as the Lecturer in the subject of Statistics at Nambol Higher Secondary School under the Education Department, Manipur. After Shri Sh. Shantikumar Singh who was the ANO of NCC Trp. No. 6, the Nambol Higher Secondary School, having been transferred from the School, the petitioner was allowed to look after the activities of NCC as the Caretaker (in-charge).

[3.2] A notification dated 29-09-2019 was issued by the Group Commander, NCC Group HQ, Imphal inviting applications for appointment to the post of ANO in the Senior Division/ Senior Wing and Junior Division/ Junior Wing in various Colleges/ Schools in Manipur and the requisite qualification for the male candidate should not be less than 21 years of age and should not be above 45 years as on 25-11-2019. The upper age limited is relaxable by three years i.e., 48 years of age at the sole discretion of the DG, NCC. The petitioner applied for the said post of ANO, for which the Principal, Nambol Higher Secondary School submitted an application dated 11-11-2019 to the CO, 14 (M) Bn. NCC, Imphal for the relaxation of the upper age as provided in the rules.

[3.3] After a proper scrutiny of the petitioner‟s application, his name was shown at Sl. No. 3 of the Nominal Roll of CTs who applied for the said post and the Nominal Roll was issued by the CO, 14(M) Bn. NCC, Imphal after his application being accepted by the respondents. The selection for the post of ANO in educational institutions, Manipur, is held only once in a decade and it is fortunate for the petitioner that the said notification dated 23-09-2019 was issued after a long wait prior to his being age-barred. A letter dated 04-02-2020 was addressed by the CO, 14(M) Bn. NCC, Imphal to NCC Group HQ „GOLF‟ furnishing the details of the CTs who applied for ANO for purpose of appearing before the Selection Board. On the next day i.e., 05-02-2020, a letter was issued by the Additional Officer, NCC Group HQ, Imphal informing all NCC Units to ensure that all the candidates were present at Group HQ Complex by 10:30 am on 13-02-2020 for the Interview before the State Selection Board.

[3.4] A letter dated 07-02-2020 was addressed by the CO, 14 (M) Bn. NCC, Imphal to all concerned Colleges/ Schools including the petitioner‟s Schools informing all the concerned CTs who have applied for the post of ANO to be present at Group HQ on 13-02-2020. The petitioner appeared before the Selection Board on 13-02-2020 as directed and performed at his best level.

[3.5] As the petitioner did not receive any official result of the selection test, he submitted representations dated 28-05-2020 and 16-06-2020 to the Additional Director, NER Directorate, NCC, Shillong and the Director General, NCC Headquarter, New Delhi. In response to his representation dated 28-05-2020, a letter dated 02-07-2020 was sent by the CO, 14(M) Bn. NCC, Imphal, Manipur to the School, through registered post, which was being used as the quarantine centre and accordingly, the petitioner could receive it only on 27-07-2020. A letter dated 29-06-2020, issued by the Lt. Col. AD(A), NCC, NER to the NCC Group HQ, Imphal, was enclosed therewith rejecting the prayer of the petitioner on the ground that he was not eligible to become ANO as per age criteria laid down by the HQ, DG, NCC and that he was beyond 48 years of age. Being aggrieved by the said letters, the instant writ petition has been filed by the petitioner contending inter-alia that he fulfilled all the criteria laid down for selection to the post of ANO at the time of submission of his application form. It is the CO Unit who had to obtain approval from the DG, NCC. After his upper age limit having been relaxed, he was allowed to appear before the Selection Board. He was a qualified teacher for holding the post of ANO of Trp. No. 6 Nambol Higher Secondary School, 14(M) Bn. NCC, Imphal. The negligence or lapses on the part of the official respondents could not be the ground to contend that he was ineligible for appointment as ANO. The non-selection of the petitioner to the post of ANO by the Selection Board by merely returning the application form was arbitrary and malafide which amount to violation of the principles of natural justice. The action of the respondents in not recommending /selecting him to the post of ANO was in violation of the Article 14 and 16 of the Constitution of India.

[4] In the affidavits filed on behalf of the respondents except the State of Manipur, it has been stated that the selection of ANO is governed by the provisions of the National Cadet Corps Act, 1948 (hereinafter referred to as "the Act, 1948" and the rules made thereunder. As per para 2(a)(ii) of the policy letter dated 04-04-2019, the upper age limit is relaxable by three years at the sole discretion of the DG, NCC. In terms of para 3(b)(i) of the policy letter dated 04-10-2018, the waiver of age relaxation in respect of candidates above 42 years who have been recommended by the head of Institution, will be obtained from the DG, NCC in advance and the same will be forwarded along with the application to the selection board. As per para 2 of the selection procedure as contained in the letter dated 18-02-2016, a statement of case for grant of age relaxation must be submitted in original duly countersigned at all levels and the Selection Board proceedings should accompany a summary of the candidates selected/ selected subject to age relaxation/ rejected/ absent etc. Such a statement of case is to be initiated by the concerned Institution/ College for further process through the chain of commands. The qualification requirement for selection and appointment of ANO was circulated to all the States of North-East vide letter dated 06-06- 2019. The application of the petitioner was accompanied by an application of the Principal but a statement of case was not initiated by the School in advance to obtain the approval of the DG, NCC, because of which the application was rejected at the battalion level. The submission of the petitioner‟s application form, without his upper age limit being approved by the DC, NCC or in other words, without the waiver document, was itself a contravention of the rules. The mere submission of the application does not mean automatic selection and it is for the Selection Board to consider it. In fact, his application was considered by the Selection Board which returned it as his being age-barred. The contention that the petitioner looked after NCC after Shri Sh. Shantikumer Singh being transferred, has been denied stating that he was not officially appointed as a caretaker. After the representation being received, the petitioner was informed that he was not eligible for appointment as ANO. On the basis of the wrong recommendation/ forwarding of his application, no right can be said to have been conferred upon him to claim for selection as ANO. In other words, mere recommending or forwarding his application form to the Selection Board could not be taken as the recommendation to the Selection Board for selection.

[5] In the rejoinder affidavit, it has been stated that in terms of para 5(f) of the Notification, a statement of case as mentioned therein shall be duly recommended by the CO Unit which shall be submitted along with the application form-II/III and this statement of case shall not be provided by the headmaster of the Institution. As per para 7 thereof, the Unit shall scrutinize the applications for corrections and forward the same to the Group HQ by 26-11-2019 and the application if not found in order or without the requisite documents, shall be summarily rejected. The application of the petitioner was duly accepted by the concerned officials of the NCC with the result that his name was listed in the nominal list and he was allowed to appear before the Selection Board. It is the duty of the CO Unit to obtain approval from the DG, NCC, for which the headmaster of the School had submitted an application. The fact that his name was in the nominal list and was interviewed, shows that his upper age was relaxed. The negligence on the part of the official respondents cannot be the ground to hold that the petitioner was ineligible. The non-selection of the petitioner by the Selection Board is arbitrary and malafide which amount to violation of the principles of natural justice and the same is liable to be set aside.

[6] The stand of the respondents except the State of Manipur that the selection of ANO is government by the provisions of the Act, 1948 and the rules made thereunder, appears to have not been disputed by the petitioner. In a purported exercise of power conferred by the provisions of the Act, 1948, some policy letters were issued from time to time. The first policy letter which has been placed on record, is the one dated 18-02-2016 which lays down the selection procedure, promotion, appointment of caretaker etc. The para 2 and 10 thereof read as under:

"2. Selection Procedure:

(a) State Dtes must ensure that a candidate should be within the prescribed aged limit on the last date of submission of application. Last date of application should be the yardstick to determine the exact age.

(b) The names and appointment of all members and the Presiding Officer of the Selection Board will be clearly mentioned.

(c) In case of Selection of a lady ANO, the name of a non-official body lady member must be clearly mentioned. Sometimes only signatures are put without writing the name in full which creates a doubt.

(d) In some cases, the names create a doubt whether the individual is a male or female. The name must be clearly written. In case of female candidates Miss/ Mrs must be written.

(e) Statement of Case for grant of age relaxation must be submitted in original duly countersigned at all levels.

(f) Dates of filing application and holding of Selection Board must be written on top of the Selection Board proceedings and should be completed within one (01) year. And delay will not be accepted.

(g) Presidents of selection boards should put their signature & official seal with date and it must be the same date as of holding of Selection Board.

(h) Selection Board proceedings are required to be forwarded to this HQs within two weeks of holding of the Selection Board for clearance. And delay should be justified.

(i) Selection Board proceedings should accompany a summary of the candidates selected/selected subject to age relaxation/rejected/absent etc.

All of the above said proposal seeking HQ DGNCC approval must be submitted on the prescribed performa."

Para 3 of the policy letter dated 04-10-2018 reads as under:

"3. Enrolment age limit under Rule 16(b) & Rule 13(c) of NCC Act & Rules 1948 and 1949:-

(a) No change in existing maximum enrolment age limit i.e., 42 years extendable upto 45 years.

(b) In consonance with UK High Court judgment No. 6344/U.H.C./Service Section-II/WPSS/Nanital/ dt 25 May 2018 regarding waiver of age relaxation, the following procedure will be adopted for waiver of age for selection of ANOs:

(i) Waiver of age relaxation in respect of candidates above 42 years who have been duly recommended by the head of institution, will be obtained from this HQ in advance and the same will be forwarded along with application to selection board.

(ii) SOC in this regard duly recommended by chain of command should be forwarded by Dte to this HQ at least two months prior to holding of selection board."

Para 2(a) of the policy letter dated 04-04-2019 reads as under:

"2(a) Rule 16(b) & 13(c) of NCC Rules 1948 & 1949 (GD) (Age Limit for Appointment as ANO)

(i) No change in the lower age limit i.e. 21 yrs.

(ii) Upper age limit be relaxed upto 45 years from existing 42 years with a provision of further 3 years relaxation i.e., upto 48 years at the sole discretion of the DG NCC. No further relaxation will be granted on any count.

(iii) In accordance with para 3(b)(i) & (ii) of this HQ Police letter No.016/Policy/NCC HQ (D) dt 04 Oct 18, waiver of age relaxation in r/o ANOs above 45 yrs will continue to be obtained from HQ DG NCC in advance."

A Notification dated 23-09-2019 was issued by the NCC Group HQ, Imphal inviting applications for selection of ANO in educational institutions in Manipur. It contains the detailed eligibility conditions as regards the qualification, age limit, the manner as to how the application is to be submitted by the candidates etc. The relevant para 5 and 7 thereof read as under:

"5. Age Limit for Candidates.

(a) Male candidates applying for SD/JD/ANO should not be below 21 years of age and should not be above 45 years of age on 25 Nov. 2019 (i.e. last date of receipt of application)

(b) Female candidates applying for SW/JW/ANO should not be below 21 years of age and should not be above 45 years of age on 25 Nov 2019 (i.e. last date of receipt of application)

(c) The upper age limit is relaxable upto three years i.e. up to 48 years of age at the sole discretion of the DG, NCC. No further relaxation will be given/ provided.

(d) CTC of High School Certificate shall be enclosed with the application as a proof of the age of the candidates.

(e) CTC of the appointment letter, highest education qualification certificate, Professional certificate if any. Current pay certificate including pay scale issued by the Principal shall be attested with Application Form II/III.

(f) In case age relaxation is claimed under the provision as mentioned at para 5(c), a statement of case duly recommended by the CO Unit shall be submitted along with the Application Form II/III.

How to Apply.

(a) Applications in Form-II (Girls Battalions) and Form-III (Boys Battalions) duly filled and recommended by head of the institution shall be submitted to the respective NCC unit well before the last date of receipt of applications. The Unit shall scrutinize the applications for corrections and forward the same to the Group HQ by 26 Nov 2019.

(b) It will be ensured by units that the requisite certificates are enclosed with the applications.

(c) Application not found in order or without the requisite documents shall be summarily rejected."

[7.1] The issue involved herein relates to the interpretation of the rules and regulations as contained in various policy letters and the Notification dated 23-09-2019, on the basis of which applications were invited for appointment of ANO. Para 7 of the Notification dated 23-09-2019 provides the manner as to how the application forms are to be submitted by the candidates. The provisions of para 7 of the Notification are plain and unambiguous which require no interpretation at all and in terms thereof, the applications in the prescribed form shall be submitted to the NCC Unit well before the last date of receipt of the applications. The applications shall be recommended by the head of the Institution. The Unit shall scrutinize the applications to ensure that the requisite certificates are enclosed therewith. The applications not found in order or without requisite documents shall be summarily rejected. If the applications being found to be in order, the Unit shall forward the same to the Group HQ by 26-11-2019. This procedure for submission of application is common for all the candidates/applicants.

[7.2] Para 5 of the Notification provides that the male candidate should not be below 21 years of age and should not be above 45 years of age as on 25-11-2019, ie., the last date of receipt of the applications. In terms of para 5(c) thereof, the upper age limit is relaxable upto three years, i.e., upto 48 years of age at the sole discretion of the DG, NCC. In case age relaxation is claimed by any candidate under the provisions as mentioned at para 5(c), a statement of case duly recommended by the CO Unit shall be submitted along with the application form. What does the expression "a statement of case duly recommended by the CO Unit shall be submitted along with the application form" mean ? Does it mean that before the application form is submitted in terms of para 7, a statement of case is required to be recommended by the CO Unit so that it can be submitted along with the application form ?. If the answer is "yes", what is the procedure to be followed by the applicant/ candidate to get a statement of case recommended by the CO Unit before the application form is submitted by the candidates in the prescribed form ? What is the prescribed form of a statement of case ? The answers for these questions are not available in the rules and regulations as contained in the policy letters. In other words, the said rules and regulations are silent in respect thereof.

[7.3] Para 2(e) of the policy letter dated 18-02-2016 provides that the statement of case for grant of age relaxation must be submitted in original duly countersigned at all levels. What does the expression "statement of case for grant of age relaxation must be submitted in original duly countersigned at all levels" mean ? The said expression does not spell out as to who will submit the statement of case and as to whom it will be submitted. But the expression "duly countersigned at all levels" indicates that the submission of the statement of case shall be made to the higher level after crossing several levels because the expression "at all levels" will definitely mean more than one level. The higher level may mean the level of the NCC Directorate, NER, Shillong or the DG, NCC because from the rules and regulations as aforesaid, the CO Unit appears to be the first level while the NCC Group HQ, Imphal appears to be the second level. The application forms are required to be submitted to the CO Unit, the first level and if the application forms are found to be in order, the same shall be forwarded to the NCC Group HQ, Imphal, the second level. If the applications are found to be not in order, they will be rejected summarily and the question of forwarding them to the higher level will not arise.

[7.4] Para 3(i) of the policy letter dated 04-10-2018 provides that a waiver of age relaxation in respect of candidates above 42 years who have been duly recommended by the head of institution, will be obtained from this HQ in advance and the same will be forwarded along with the application to the Selection Board. On perusal of this para, it is seen that a waiver or for that matter, the approval, shall be obtained from the DG, NCC. Such an approval can be obtained by the candidates who have been recommended by the head of the Institution. What does the expression "in advance" mean ? Does it mean that the approval for relaxation of upper age shall be obtained by the candidates from the DG, NCC before the application forms are submitted by them ? The answer appears to be in the negative for the reason that there is no specific provision mentioned either in the policy letters or in the Notification laying down the guideline/ procedure relating to the manner in which the approval can be obtained from the DG, NCC. Is it the intention of the respondents except the State of Manipur that before the application forms are submitted by the candidates, they must directly approach the DG, NCC for obtaining the approval ? If the answer is "yes", the provisions as contained in para 5(f) of the Notification dated 23-09-2019 will be rendered redundant. It cannot probably be said to be the intention of the respondents.

[7.5] It may be noted that the provisions as contained in the policy letters mentioned hereinabove and the Notification are to be construed harmoniously so as to give them their proper meaning. A confusion has been created in the mind of the public for the reason that the provisions as contained in the policy letters, have not been incorporated in the Notification dated 23-09-2019. Although it has been contended on behalf of the respondents that the policy letters have been circulated to the concerned authorities of various States in the North-East, it is not clear as to whether the public was/ is fully aware of them or not. The candidates including the petitioner, appear to have submitted their application forms in terms of the provisions contained in the Notification because it is the latest/ immediate one laying down the procedures to be followed at the time of submitting the application forms. After having gone through the policy letters and the Notification, the only possible and harmonious interpretations thereof, are that an application in the prescribed form shall be submitted to the CO Unit by the candidate, well before the last date of receipt of the application forms, along with a recommendation of the head of the Institution. If the upper age relaxation is to be claimed by the candidate, the application form shall be accompanied by a statement of case. After the receipt of the application, it shall be scrutinized by the CO Unit and if the application form being found to be in order along with the requisite documents, it shall be forwarded to the NCC Group HQ, Imphal along with its recommendation. The application form of the candidate who has claimed for relaxation of the upper age limit, shall further be forwarded to the NCC Directorate, NER, Shillong after the same being countersigned by it. Similar is the case with the NCC Directorate, NER, Shillong which shall forward it to the DG, NCC after the statement of case being countersigned by it. In the event of the approval being granted by the DG, NCC, the application form shall be forwarded to the Selection Board along with it.

[8.1] In the present case, the petitioner, pursuant to the notification dated 29-09-2019 issued by the Group Commander, NCC Group HQ, Imphal, submitted his application form for appointment as ANO. Since the petitioner having claimed a relaxation of the upper age limitation, the Principal, Nambol Higher Secondary School submitted an application dated 11-11-2019 to the CO, 14 (M) Bn. NCC, Imphal recommending his case for relaxation of the maximum age as provided in the rules. This letter of the Principal of the School can be said to be a statement of case or in other words, it can be treated as a statement of case because there is no specific format of a statement of case being prescribed in the rules and regulations. It is not known as to how his application form was scrutinized by the CO Unit but it appears to have not been rejected summarily and therefore, his name was shown at Sl. No. 3 of the Nominal Roll of CTs who applied for the said post. It may further be noted that the Nominal Roll was issued by the CO, 14(M) Bn. NCC, Imphal which addressed to NCC Group HQ „GOLF‟ a letter dated 04-02-2020 furnishing the details of the CTs who applied for ANO for the purpose of their appearing before the Selection Board including that of the petitioner. On the next day i.e., 05-02-2020, the Additional Officer, NCC Group HQ, Imphal informed all the NCC Units to ensure that all the candidates were present in Group HQ Complex by 10:30 am on 13-02-2020 for the Interview before the State Selection Board, followed by a letter dated 07-02-2020 of the CO, 14 (M) Bn. NCC, Imphal informing all concerned Colleges/ Schools including the petitioner‟s Schools that all the concerned CTs who applied for the post of ANO, ought to be present at Group HQ on 13-02-2020 on which day the petitioner appeared before the Selection Board as directed and performed at his best level. As the petitioner did not receive any official result of the selection test, he submitted representations dated 28-05-2020 and 16-06-2020 to the Additional Director, NER Directorate, NCC, Shillong and the Director General, NCC Headquarter, New Delhi respectively and In response thereto, a letter dated 02-07-2020 was issued by the CO, 14(M) Bn. NCC, Imphal, Manipur which was received by the petitioner only on 27-07-2020 due to COVID-19 pandemic, enclosing therewith the letter dated 29-06-2020, issued by the Lt. Col. AD(A), NCC, NER to the NCC Group HQ, Imphal rejecting the prayer of the petitioner on the ground that he was not eligible to become ANO as per age criteria laid down by the HQ, DG, NCC and that he was beyond 48 years of age.

[8.2] From the aforesaid factual matrix, it appears that the application form of the petitioner was not forwarded further to the higher levels for the purpose of consideration of his claim for relaxation of his upper age limit. The application form of the petitioner was admittedly received by the CO Unit in time and since it was not rejected on the ground that the petitioner had become age-barred or the approval had been denied by the DG, NCC, he was allowed to participate in the interview. But his application was returned by the Selection Board with the remark "over age". If that be the case, the petitioner‟s application form could have been rejected at the stage of scrutiny itself instead of it being returned by the Selection Board, if it was not found to be in order. The petitioner ought not to have been called for the interview at all but for the lapses on the part of the NCC officials at the first two levels, he appeared before the Selection Board without knowing that his application form would be returned without his case being considered by it. The fact that he was allowed to appear before the Selection Board along with other candidates, had given him a false hope. The manner in which the petitioner had been treated by the officials of the NCC at the first two levels, is unfortunate and unreasonable. It is nothing but an act of insulting the petitioner for no fault of his. In fact, it is the fault of the respondents, for which they are solely responsible. It is absolutely an irresponsible act and gross negligence on the part of the respondents. The Respondents being institutions, ought to act fairly and reasonably in public interest. From the facts and circumstances of the present case, it is seen that the officials of the NCC who are at the first two levels, appear to have no full knowledge about the rules and regulations as contained in the policy letters or appear to have forgotten them completely with the result that the same were not incorporated in the Notification dated 23-09-2019 which made the public unaware of the details for the appointment of ANO. The petitioner appears to have submitted his application form on the basis of the said Notification only. The action of the officials of the NCC at the first two levels or for that matter, the respondents, is highly unfair and unreasonable being violative of Article 14 of the Constitution of India. But the facts remains that since no approval was obtained from the DG, NCC, as aforesaid, for one reason or the other, the petitioner had become ineligible for consideration for appointment as ANO. For want of the approval from the DG, NCC, the application form of the petitioner was returned by the Selection Board with the remark "over age". It is neither the fault of the Selection Board nor is it that of the DG, NCC but it is certainly the fault and negligence of the first two levels, because which the application of the petitioner was not considered by the Selection Board. What is the remedy available with the petitioner in such circumstances. Considering the overall facts of the present case and having heard the counsels appearing for the parties, this Court is of the view that no writ of mandamus can be issued after the process of selection having completed. Except an appropriate action being taken against the fist two levels by the higher authorities, the relief as prayed for by the petitioners cannot be granted by this Court. Although there are allegations against the respondents of being malafide, no materials have been placed on record by the petitioner to prove them. One point that can be noted at this juncture, is that had the actions of the respondents and in particular, the first two levels been malafide, they would have not called the petitioner for the interview. In any case, it is the petitioner who has suffered the humiliation due to the fault and negligence on the part of the respondents and in particular, the first two levels. It is, therefore, open to the respondents except the State of Manipur, to consider his case, if possible, on humanitarian ground, otherwise the hope and expectation of the petitioner who has a lot of interest in NCC, will stand shattered for no fault of his and his career of being in the NCC will stand ruined forever. So far as the petitioner is concerned, since no relief can be granted by this Court, it is open to him to approach the appropriate forum for redressal of his any other grievance, if any and if so advised.

[9] In view of the above and for the reasons stated hereinabove, the instant writ petition is dismissed with no order as to costs.