Full Judgment Text
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CASE NO.:
Appeal (civil) 251 of 1994
PETITIONER:
Central Airmen Selection Board & Anr.
RESPONDENT:
Surender Kumar Das
DATE OF JUDGMENT: 21/11/2002
BENCH:
N. SANTOSH HEGDE & B. P. SINGH.
JUDGMENT:
J U D G M E N T
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.
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The High Court applying the principle of promissory
estoppel and relying upon the decision of this Court in Sri
Krishan Vs. The Kurukshetra University, Kurukshetra
AIR 1976 SC 376 and Ms. Sangeeta Srivastava Vs. Prof.
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.
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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.