IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 WP(C).No. 5559 of 2008(S) ------------------------- OA.250/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: ------------ 1. UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. THE COMMANDER WORKS ENGINEER (AF), SOUTH BELLARY ROAD, J.C.NAGAR POST, BANGALORE-560 006. 3. THE CHIEF ENGINEER, MILITARY ENGINEER SERVICES, HEADQUARTERS, SOUTHERN COMMAND, PUNE. 4. THE CHIEF ENGINEER (NAVAC) NAVAL ACADEMY, KOCHI-4. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR RESPONDENTS: ------------- D.RAJENDRAN, S/O.DAMODARAN, GR-D MAZDOOR, OFFICE OF THE ASSISTANT GARRISON ENGINEER (ELECTRICAL & MECHANICAL), C/O.GARRISON ENGINEER, FORT KOCHI, RESIDING AT DAD RESIDENTIAL COMPLEX, PALLURUTHY, KOCHI-6. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & K.T.SANKARAN, JJ. -------------------------------------------------------------------------------- Writ Petition (C) No.5559 of 2008-S -------------------------------------------------------------------------------- Judgment Balakrishnan Nair, J. The respondents in OA No.250/05 before the CAT, Ernakulam bench are the writ petitioners. The applicant therein is the respondent. The applicant applied for appointment to the post of Junior Engineer (Civil) when applications were invited for the same by the 2nd respondent in the OA, who is the second writ petitioner. He was not considered for appointment on the ground that he was over-aged. On the last date for receipt of applications, his age was 44 years, 11 months and 11 days. The respondent applicant challenged his non- consideration before the CAT by filing Ext.P2 OA. The writ petitioners resisted the application by filing Ext.P3 reply statement. The tribunal, after hearing both sides, allowed the OA by Ext.P1 judgment. This Writ Petition is filed, challenging Ext.P1 mainly on two grounds. The first ground is that the CAT Ernakulam bench does not have jurisdiction to entertain the claim as the commissions and omissions of the 2nd respondent based at Bangalore are under challenge. We notice that though the said point was taken in the reply WPC 5559/08 2 statement, the same was not argued before the CAT. This is evident as the said point does not find a place in Ext.P1. Therefore, a point not argued before the tribunal cannot be allowed to be urged before us. 2. The second ground is that the applicant has crossed the age of 44 years and therefore, he is rightly excluded from being considered. But, we notice that as per Annexure A6 produced along with Ext.P2, 43 years is the age limit for OBC candidates. We also notice that as per Rule 3 of Ext.R3 produced along with Ext.P3, the upper age limit for recruitment has been increased by two years. If that be so, the age limit for OBC candidates for selection to the post of Junior Engineer (Civil) is 45 years. So, the stand of the writ petitioners that the applicant respondent was over-aged and therefore, his claim was not considered, cannot be accepted. Therefore, on merits also, the writ petitioners do not have any case. 3. Even assuming the CAT, Ernakulam bench did not have jurisdiction, since justice has been done to the applicant by the order impugned, it is not necessary for this court to interfere with the same on the technical ground of lack of jurisdiction. See the decision of the Apex Court in Mohammed Swalleh v. IIIrd Additional District Judge (1988 (1) SCC 40). In the said decision, it WPC 5559/08 3 was held as follows : “It was contended before the High Court that no appeal lay from the decision of the prescribed Authority to the District judge. The High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground, the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But, the High Court was exercising its jurisdiction under Art.226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore, in the facts and circumstances of the case, justice has been done though, as mentioned hereinbefore technically, the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Art.226 of the Constitution, then no exception can be taken. As mentioned hereinbefore, justice has WPC 5559/08 4 been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken.” In view of the above decision of the Apex Court, it is unnecessary for this Court to interfere with Ext.P1. In the result, the Writ Petition fails and it is dismissed. Sd/- K.BALAKRISHNAN NAIR,JUDGE 25.02.2008 Sd/- K.T.SANKARAN, JUDGE True copy PA TO JUDGE sta WPC 5559/08 5