WP(C) 431/2008 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI By this common judgment and order, I propose to dispose of both these writ petit ions inasmuch as both these writ petitions are closely inter-linked and the deci sion, in any of the two writ petitions, may have a bearing on the outcome of the other writ petition, and, hence, both these writ petitions have been heard toge ther. 2. The material facts, which are not in dispute, and have given rise to the present writ petition, may, in brief, be set out as under: (i) The Assam Tribune, a local English daily, in its issue, dated 03.12.2006 , and The Dainik Janambhumi, a local Assamese daily, in its issue, dated 07.12.2 006, carried advertisement inviting applications to fill up, for a period of two years, a post of lecturer, in the Department of Botany, Dibru College, Dibrugar h. The post, though sanctioned, was to carry fixed pay of Rs.5,000/- and the app licants were to submit their respective applications within fifteen days from th e date of publication of the advertisement. The petitioner, who held requisite e ducational qualifications, applied for selection and appointment to the said pos t. The petitioner was accordingly invited, for interview, which was held on 27.0 3.2007. Following the interview, the Selection Committee prepared a merit list. The names, figuring in the merit list, read, in order of merit, thus: (1) Dr. Mahesh Gogoi - 1st nominee (2) Sri Pranab Paul - 2nd nominee (3) Miss Monmi Baruah - 3rd nominee (ii). On the ground that the petitioner, whose position in the merit list was first, had crossed the maximum upper age limit required for the post of lecturer in college, the Governing Body of the said college, in its meeting, held on 23. 04.2007, resolved to recommend the name of Pranab Paul, who was placed second, i n the merit list, to the Director of Higher Education, Assam, for obtaining prio r approval for appointment of the said candidate as a lecturer. The relevant ex tracts of the proceedings of the Governing Body read as under: The Principal i/c placed before the Governing Body meeting held on 23.4.2007 th e recommendation of duly constituted Selection Committee for the selection of le cturer in Botany along with the Government Circular dated 4th January, 2006 (Mem o No.AAP 115/72/PT-1/152). The merit list prepared by the Selection Committee is as follows - 1. Dr. Mahesh Gogoi 2. Sri Pranab Paul After going through the recommendation and the above circular, the Governing Bod y resolved as follows: Resolution No. 4(iii): The Governing Body resolved that as the 1st nominee in the merit list in the sub ject Botany has already attained the age over 37 years, on the date of selection , i.e., on 27.03.2007, the name of the 2nd nominee in the merit list Sri Pranab Paul be sent to the Director of Higher Education, Assam, with documents for prio r approval of appointment. Sd/- P. Majhi Pres ident Governin g Body Dibru College, Dibr ugarh Countersigned by Sd/- 02.08.2007 Principal, Dibru College, Dibrugarh. (iii). Having learnt about the fact that though the petitioner, in WP(C) No.222 8/2007, namely, Dr. Mahesh Gogoi, had been placed, in the merit list, in the fir st position, by the Selection Committee, the Governing Body had declined to reco mmend his name to the Director of Higher Education, Assam, for the purpose of ap pointment and had, instead of his name, recommended the name of the candidate, n amely, Pranab Paul, whose position was second in the merit list, the petitioner (whose position was first in the merit list) has come to this Court, with this w rit petition, seeking, inter alia, a direction to the Governing Body of the said College to recommend, for approval to the Director, Higher Education, Assam, th e name of the writ petitioner for appointment to the said post of lecturer of Bo tany. (iv) So far as the petitioner in WP(C) No.431/2008, namely, Miss Monmi Baruah , is concerned, her case is that the Selection Committee and the Governing Body were pre-determined to appoint Pranab Paul in order to deprive her (i.e., the pe titioner in WP(C) No. 431/2008) and it was for this reason that the name of Dr. Mahesh Gogoi (i.e., the petitioner in WP(C) No.2228/2007) was placed as the firs t nominee. The selection of Pranab Paul is, according to the petitioner, mala fi de. 3. I have heard Mr. AM Mazumdar, learned Senior counsel, for the petitioner in WP(C) No.2228/2007, and Mr. GP Bhowmik, learned counsel, for the petitioner, in WP(C) No.431 of 2008. I have also heard Mr. MK Mishra, learned Standing Coun sel, Education Department, for the respondent Nos. 1,2 and 4 in WP(C) 2228/2007 and for the respondent No.1 and 2 in WP(C) No.431/2008, Mr. P. Gogoi, learned co unsel, for the respondent No.3 in WP(C) No.2228/2007, Mr. AK Goswami, learned Se nior counsel, for the respondent Nos.5 and 6 in WP(C) No.2228/2007 and for the r espondent No.3 and 4 in WP(C) No.431/2008, and Mr. N. Choudhury, learned counsel , for the respondent No.7 in WP(C) No.2228/2007. 4. There is no dispute that in terms of the Government’s circular bear ing Office Memorandum No. AAP.115/72/PT.I/152A, dated 04.01.2006, the upper age limit for entry into the State Government services was increased from 36 to 37 y ears. Thus, the upper age limit for entry into the State Government services is 37 years. This upper age limit is, admittedly, relaxable up to the age of 45 yea rs. 5. Bearing in mind the above undisputed facts, let me, first, deal with the case of Dr. Mahesh Gogoi (i.e., the petitioner in WP(C) No. 2228/2007). WP(C) No. 2228/2007 6. Drawing attention to the provisions of Assam College Employees (Provinci lisation) Act, 2001, Assam Non-Government College Management Rules, 2001, Assam Civil Service Rules, 1998, Assam Education Service Rules, 1982, Assam State Coun cil of Educational Research and Training Service Rules, 2005, Mr. Mazumdar has c ontended that the provisions of the various Acts and Rules, which govern State G overnment’s services, make it clear that a candidate’s upper age limit has to be determined for the purpose of recruitment to be made to the Government service on the basis of his or her age on 1st of January of the year in which the advert isement is published. 7. What is, now, of paramount importance to note is that I have perused the A ct and the Rules, which Mr. Mazumdar has relied upon, and, on a pointed query ma de by this Court, Mr. Mazumdar could not specifically point out to any of the pr ovisions of the Act and/or the Rules, governing the service conditions of a lect urer of a college, which specifically lays down that for the purpose of recruit ment of a lecturer of a college, the age has to be reckoned from the first day o f January of the year in which the advertisement was published. In a case of pr esent nature, what one has to, therefore, decide is as to what will be the cut-o ff date in respect of the upper age limit of a candidate for the purpose of maki ng appointment to the post of lecturer of a college. It is worth pointing out t hat having considered a number of authorities on the question as to what shall b e treated to be the cut-off date in respect of the age of a candidate for recrui tment to a given service, the Supreme Court has, in Shankar K. Mandal and others Vs. State of Bihar and others, reported in (2003) 9 SCC 519, culled out the pri nciples governing determination of the cut-off date as under: (1). The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules. (2). If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications. (3). If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applicati ons were to be received by the competent authority. 8. From the principles, which have been culled out by the Apex Court, in Sh ankar K. Mandal (supra), what become clear is that if the relevant service rule fixes a date for the purpose of computing the age of a candidate eligible for ap pointment, such a date would be treated as the cut-off date in respect of the se rvice to which such service rules apply. If no cut-off date is prescribed by the rules, then, such date as may be appointed, in the advertisement, calling for a pplications. If, in this regard, the service rules and also the advertisement ar e silent, then, the eligibility criteria shall be applied by referring to the la st date appointed by which applications were to be received by the competent aut hority. 9. No service rules and/or specific Government instruction could be shown t o apply to a case of present nature, wherein selection of a lecturer of a Govern ment-in-aid College of Assam is involved. This apart, even the advertisements w ere silent as regards the cut-off date on the basis of which upper age limit wou ld be considered. In the present case, therefore, the cut-off date would be the last date appointed for making applications as per the advertisements. The adver tisement was published, in The Assam Tribune, on 03.12.2006, and in The Dainik J anambhumi, on 07.12.2006, and the applications were to be submitted within fifte en days from the date of publication of the advertisement. 10. Thus, the last day for making of applications was 24.12.2006. As the pre sent petitioner’s date of birth is 01.11.1969, he was 37 years 1 month and 22 da ys on the last day fixed for submission of the applications. When this petitione r was interviewed, his upper age limit had not been relaxed. In fact, he had not even applied for relaxation inasmuch as he has made the application for relaxat ion as late as on 28.03.2007, i.e., after he had already appeared in the intervi ew and, interestingly enough, till today, his upper age limit has not been relax ed. Thus, the petitioner was not even eligible to participate in the interview o r be interviewed. 11. Coupled with the above, what needs to be noted is that a candidate has t o be eligible for selection at the time, when he or she appears, in the written test, interview and/or viva voce, for selection. The mere fact that the candidat e has appeared in a written test, interview or viva voce will not make a candida te eligible if he or she was, otherwise, ineligible unless such disqualification or ineligibility is removed or relaxed before he or she appears in the written test, interview and/or viva voce unless, of course, the relevant recruitment rul es provide otherwise. Relaxation of age by the Government, after an interview i s completed, cannot be treated, in the absence of any specific rules or Governme nt policy, a valid ground for making the candidate eligible. 12. Hence, when the petitioner, in WP(C) No.2228/2007 (i.e, Dr. Mahesh Gogoi ), was, admittedly, ineligible for being considered for appointment, he could no t have been interviewed by the Selection Board on 27.03.2007. This apart, when i t came to the notice of the Governing Body, (as the proceedings of the Governing Body meeting, held on 23.04.2007, reflect) that the petitioner was over-aged an d his age had not been relaxed, the Governing Body was wholly within the ambit o f its authority not to recommend the petitioner’s name as indicated hereinabove. The mere fact that the petitioner, in WP(C) No.2228/2007 (i.e., Dr. Mahesh Gogo i), had been allowed to appear in the interview or had been interviewed by the S election Board does not vest, in the petitioner, any right to either demand appo intment or to contend that his name ought to have been recommended. Even if, sub sequent to his interview, the petitioner has applied for relaxation of his age t o the Government and even if the petitioner’s upper age limit is, now, relaxed b y the Government, it would not clothe the petitioner with a right, far less an i ndefeasible right, to demand that his name be recommended to the Director, Highe r Education Assam, for the purpose of obtaining approval for appointment to the said post of lecturer in the Department of Botany. 13. A reference, with regard to the above aspect of law, may be made to T. J ayakumar Vs. A. Gopu & another, reported in 2008 AIR SCW 6620, wherein the Supre me Court has observed and held, 10.We are not aware of any principle of law und er which once a candidate is allowed participation in the selection process the selection authority is precluded from examining whether his application was comp lete, in order, within time or otherwise acceptable. A defect in the application form that renders the candidate ineligible might be overlooked in the initial s creening and as a result he may be called for interview and may get a chance to take part in selection process but that alone does not mean that the candidate c annot be held ineligible for selection at a later stage once the defect in the a pplication comes to light. It is surely open to the Tribunal to examine whether the reason assigned by the selection authority for holding a candidate ineligibl e for selection was valid or unreasonable and arbitrary. If the reason for exclu ding a candidate from the selection process is found to be unreasonable or arbit rary the Tribunal may certainly intervene but if the reason itself is valid the Tribunal cannot interfere simply because the candidate was allowed participation in the selection process by being called for interview. The principle of estopp el has no application in such a case. 14. From the observations made, in T. Jayakumar (supra), what becomes clear is that when a candidate, who was ineligible to participate in a selection proce ss, is allowed to participate by mistake or otherwise, he or she cannot be treat ed to have become eligible, or his/her eligibility cannot be treated to have bee n waived, merely because of the fact that he has participated in the selection p rocess. Thus, the mere fact that there has been precedent, in the past, where up per age limit, for the purpose of appointment, has been relaxed after a candidat e stood selected, who was, otherwise, not eligible to even participate in the se lection process without relaxation of his/her age, cannot be made a valid ground for obtaining appointment. Hence, in the present case too, the fact that the pe titioner, Dr. Mahesh Gogoi, has applied for relaxation of his upper age limit an d even if the petitioner’s upper age limit is, now, relaxed by the Government, i t would not cure the ineligibility with which petitioner’s candidature, on the d ate of making of the application or on the date of interview, suffered from. In short, the relaxation of the petitioner’s age, even if granted, will not relate back to the date of the interview. 15. It has been further contended by Mr. Mazumdar that in the present case, since the petitioner had stood first in the interview, his name ought to have be en recommended by the Governing Body to the Director of Higher Education, Assam, and it was for the Director to decide as to whether the petitioner can be appoi nted or not. I find absolutely no force in this submission inasmuch as the fact remains that on the date, when the petitioner was interviewed, he was ineligible for being interviewed. Hence, the Governing Body could not have recommended, fo r obtaining approval for the purpose of making appointment, the name of such a p erson, who was not even eligible to participate in the selection process. 16. What is also of immense importance to note is that the petitioner was in terviewed, on 27.03.2007, and he applied for relaxation of his age on 28.03.2007 . This clearly shows that there was not even an application for relaxation of ag e on the date, when the petitioner had been interviewed. In such circumstances, merely because of the fact that the petitioner has subsequently applied for rela xation of his age as late as on 28.03.2007, the decision of the Governing Body i n its meeting, held on 23.04.2007, cannot be said to be illegal and cannot be in terfered with. 17. Because of what have been discussed and pointed out above, I find absolute ly no merit in this writ petition, i.e, WP(C) No.2228/2007, and this writ petiti on must, therefore, fail. WP(C) 431/2008 18. Let me, now, turn to the case of the petitioner in WP(C) No.431/2008. Th e grievance of this petitioner, namely, Smt. Monmi Baruah, is that in the select ion process, in question, this petitioner secured higher marks in respect of her academic results and teaching experience compared to Pranab Paul (i.e., respond ent No.5 in WP(C) No.431/2008), but in the interview, which was to carry 30 mark s, while respondent No.5, namely, Pranab Paul, was given 26.11 marks, the petiti oner was given 9.2 marks only. Making the accusation that she was not given as m uch marks in the interview as she had deserved, the petitioner has challenged th e selection of respondent No.5, namely, Pranab Paul. As far as respondent No.6 t o this writ petition, namely, Dr. Mahesh Gogoi, is concerned, his writ petition, which gave rise to WP(C) No.2228/2007, has already been held, as mentioned abov e, wholly without merit. 19. While considering the case of this petitioner, Smt. Monmi Baruah, it nee ds to be noted that with regard to the selection of candidates for appointment t o the post of lecturers in deficit grant-in-aid colleges of Assam, the Governmen t of Assam, Education (Higher) Department, Dispur, Guwahati, has already publish ed guidelines under Office Memo No.B(2)H 242/2002/240 dated Dispur the 20th Feb/ 2003. As per these guidelines, the marking system for the candidates, in respect of lecturers, has been prescribed as follows: Marking system on different counts will be as follows: Academic qualifications Teaching experience Knowledge of the subject Interview Total Mxm 65 Mxm 5 (1 pt. for complete year of the teaching in Govt./Deficit colle ges only) 15 15 100 20. In the case at hand, the selection process has taken place in terms of t he guidelines aforementioned. The vires, justification and/or legality of these guidelines have not been challenged. In such circumstances, the mere fact that t he petitioner has received, in the interview, marks, which are lesser than the m arks secured by the respondent No.5, can be really of no significant consequence . 21. Coupled with the above, one can also not ignore that the guidelines afor ementioned have been in force since the year 2003 and this petitioner knew that the selection would be processed in terms of the said guidelines. She still chos e to appear without protesting against the justification of the guidelines; but after she has found that she has not been selected, she has come to this Court. In such circumstances, I do not find that this petitioner has been able to make out any case for granting her relief, which she has sought for. It may be mentio ned, while considering this aspect of the case, that it has been the consistent view of law that a candidate, who has fully participated in a selection process and failed to qualify the same, cannot turn around and challenge the legality o f the selection process on the ground that the procedure followed was not proper and fair. A reference, in this regard, may be made to the case of Madanlal and others Vs. State of Jammu and Kashmir, reported in (1995) 3 SCC 486, wherein th e the Supreme Court has held: Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obta ined in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeare d at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Th us the petitioners took a chance to get themselves selected at the said oral int erview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shu kla it has been clearly laid down by a Bench of three learned Judges of this Cou rt that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challengi ng the said examination, the High Court should not have granted any relief to su ch a petitioner. 22. I am also guided to adopt the above view from the law laid down in Om Pr akash Shukla Vs. Akhilesh Kumar Shukla (AIR 1986 SC 1043), wherein it has been l aid down as follows: moreover, this is a case where the petitioner in the writ petition should not h ave been granted any relief. He had appeared for the examination without protest . He filed the petition only after he had perhaps realized that he would not suc ceed in the examination. The High Court itself has observed that the setting asi de of the results of examinations held in the other districts would cause hardsh ip to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not respons ible for the conduct of the examination. 23. Situated thus, one has no option, but to hold that this writ petition to o, namely, WP(C) No.431/2008, is wholly without merit and must fail. 24. Because of what have been discussed and pointed out above, both the writ petitions, namely, WP(C) No.2228/2007 and 431/2008, are hereby held to be witho ut merit and shall accordingly stand dismissed. 23. No order as to costs.