Central
Airmen Selection Board & Anr Vs. Surender Kumar Das [2002] Insc 485 (21 November 2002)
N. Santosh
Hegde & B. P. Singh.B. P. Singh, J.
In
this appeal by special leave the appellants herein have impugned the judgment
and order of the High Court of Orissa at Cuttack dated 12th March, 1992 in
Original Jurisdiction Case No.1969 of 1991, whereby the High Court allowing the
writ petition filed by the respondent herein, directed the appellants to
appoint the petitioner on the post of Airman in the technical trade under the
Indian Air Force, and to send him for training.
The
High Court set aside the decision of the appellants not permitting the
respondent to join the aforesaid post after selection, on the ground that he
was not eligible for the said post in terms of the advertisement. In doing so,
the High Court invoked the principle of promissory estoppel and held that
having selected the respondent for appointment, and the respondent having
discontinued his studies in the Orissa School of Mining Engineering, the
appellants could not be permitted to prevent the respondent from joining the
post.
It is
not in dispute that an advertisement was published in the Employment News of
17th 23rd February,
1990 inviting
applications from eligible candidates for appointment to the post of Airman in
the technical trade under the Indian Air Force. The advertisement prescribed
that the candidate should be born between 31st March, 1971 and 1st July, 1997, but the upper age limit was relaxable by two years in case
of those who had passed the Intermediate examination. It is also not in dispute
that the date of birth of the respondent is 13th July, 1970. Therefore, he was not eligible for the post as he was over
age, but however age relaxation was permissible in the case of the respondent
if he had passed the Intermediate examination.
The
petitioner was invited to appear at a written test and thereafter the primary
examination etc. He was thereafter medically examined and found suitable for
appointment. His name appeared in the All India merit list and a call letter
was issued to him to report at the Airman Selection Centre, Bhubneshwar on
11.3.1991. However, when the respondent reported at the aforesaid Centre, he
was informed that his selection had been cancelled. The respondent thereafter
represented to the authorities concerned but to no avail. He was, therefore,
compelled to file the writ petition before the High Court which was allowed by
the impugned judgment and order.
The
High Court applying the principle of promissory estoppel and relying upon the
decision of this Court in Sri U.N. Singh, AIR 1980 Delhi 27, held that the
authorities having selected the respondent and having called upon him to report
at the Selection Centre, they could not be permitted to cancel the selection on
the ground that he was over age. In coming to this conclusion the Court
observed that the respondent was not guilty of having misrepresented any fact.
Moreover,
the petitioner gave up his studies which he was pursuing in the Orissa School
of Minning Engineering, and thereby acted to his detriment. On these facts, the
High Court found that the principle of promissory estoppel could be invoked
against the appellants. The writ petition was accordingly allowed.
Unfortunately,
the High Court has neither noticed nor fully considered the factual averments
in the counter affidavit filed on behalf of the appellants. It has only noticed
the fact that the selection had been cancelled on the ground that on the date
of application the petitioner was over age. It observed that since the date of
birth was correctly disclosed in the application, it was known to the
authorities that the respondent did not fulfill the eligibility condition
regarding age. As per the advertisement the upper age limit was relaxable by
two years inter alia, in case of candidates who had passed the Intermediate
examination. The petitioner had not made any statement in his application that
he had passed Intermediate examination.
We
have perused the counter affidavit filed on behalf of the appellants before the
High Court, and we have also perused the application submitted by the
respondent for his appointment which has been produced before us as 'Annexure
A' to the special leave petition filed in this Court. In the counter affidavit
filed before the High Court, it was stated by the appellants that they were
misled by the particulars furnished in the application submitted by the
respondent. Though the petitioner was not eligible for selection, since he was
over age, his case was considered for enrolment because he had stated in his
application that he possessed the +2 qualification, i.e. he had Higher
Secondary qualification which made him eligible for appointment after grant of
relaxation in the matter of age.
However,
when the final checking was done it was found that the petitioner had failed in
the subject chemistry in his +2 examination and, therefore, he was not
justified in claiming that he had passed +2 examination which entitled him to
claim relaxation in the matter of age. This aspect of the matter has
unfortunately escaped the notice of the High Court. From the application
submitted by the petitioner, it appears that under the column "name of
examination passed", it is stated "HSC" and "CHSE +2".
The HSC examination was conducted by the Board of Secondary Education, Orissa
and CHSE +2 by the Council of Higher Secondary Education, Orissa. The mark
sheets were also attached therewith. The appellants found that though the
respondent claimed to have passed the CHSE +2 examination, which could have
enabled the authorities to grant relaxation of age in his case on account of
Higher qualification, the relevant mark sheet annexed to the application
disclosed that he had in fact failed in the CHSE +2 examination, since he was
not awarded the minimum passing marks in the subject Chemistry. Even before the
High Court, the respondent did not claim to have passed either the Intermediate
examination or a Higher Secondary +2 examination which was considered to be
equivalent.
The
question, therefore, is whether in a case of this nature the principle of
promissory estoppel should be invoked.
It is
well known that the principle of promissory estoppel is based on equitable
principles. A person who has himself misled the authority by making a fake
statement, cannot invoke this principle, if his misrepresentation misled the
authority into taking a decision which on discovery of the misrepresentation is
sought to be cancelled. The High Court has proceeded on the basis that the
petitioner had not made any misrepresentation in his application to the effect
that he had passed the Intermediate examination. As we have found above, this
finding of the High Court is erroneous, contrary to record and therefore must
be set aside. In his application, the respondent had claimed that he had passed
the Secondary examination as well as the Higher Secondary +2 examination, and
it is clear from the counter affidavit filed on behalf of the appellants that
his candidature was considered on the basis that he had passed the Higher Secondary
+2 examination, as in that case he was entitled to claim relaxation in the
matter of age. However, the mark sheet annexed to the application disclosed
that the respondent had failed in the subject Chemistry and therefore, his
claim in the application, that he had passed the Higher Secondary +2
examination, was factually incorrect and a clear misrepresentation. In these
circumstances we are satisfied that the respondent could not be permitted to
invoke the principle of promissory estoppel, and the High Court was clearly
erred in law in invoking the said principle in the facts of this case. The judgement
and order of the High Court therefore cannot be sustained.
Counsel
for the appellants submitted that even in the absence of any misrepresentation,
in a case of this nature where a candidate not eligible for appointment is
selected by mistake contrary to the terms of the advertisement and the rules,
when such mistake is detected the authorities are bound to correct the mistake
and recall the order of selection. The principle of promissory estoppel cannot
be invoked in such cases. He sought to distinguish the decisions relied upon by
the High Court. In view of the finding we have recorded earlier in this
judgment, it is not necessary for us to express any opinion on this question,
and may be, in an appropriate case the aforesaid question may merit
consideration.
In the
result this appeal is allowed. The impugned judgement and order of the High
court is set aside, and writ petition filed by the respondent dismissed.
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