MADHURESH PRASAD, J.

(Per Court)

1. The learned senior counsel representing the Administration has made submissions assailing the order of the Central Administrative Tribunal, Kolkata Bench (Circuit sitting at Port Blair). The order is dated 04.09.2024. By the said order, the Tribunal has directed as follows:

“13. Therefore, we direct the Respondent No.5 i.e. the Director, Education Department, Port Blair -744101, to consider the application of the applicant submitted in online mode and assign the correct marks to the applicant in accordance with the vacancy notification dtd. 07.1.2023 for the post of Graduate Trained Teacher (GTT), Mathematics (Bengali) in EWS category. Since vide impugned order dtd. 13.02.2024 this Tribunal has directed that, appointment to one (01) post of Graduate Teacher, pertaining to the vacancy in question in the present O.A, shall be subject to the outcome of the O.A”, therefore, the respondents are directed to recast the selection list and put the applicant in appropriate place as per the marks obtained by him and give him appointment if he is otherwise found eligible and communicate the decision to the applicant forthwith within a period of 04 weeks from the date of receipt of certified copy of this order. It is made clear that the whole exercise should be completed within a period of 02 months.”

2. In order to appreciate the issue, we are giving a brief narration of the events leading to the filing of the present writ petition.

3. The respondent/appellant came out with the vacancy notice dated 07.12.2023. The same was for recruitment of Graduate Trained Teachers in the different subjects and mediums in Group ‘B’ NonGazetted.

4. The petitioner/appellant was serving as a Sarva Siksha Contract Teacher (SSCT). He made an application in response to the said vacancy notice and has been considered to be ineligible on account of being over age.

5. It is not in dispute that the applicant/respondent was appointed as an SSCT when he was 28 years of age and is continuously serving since then. It is also not in dispute that at the time of making of application in response to the vacancy notice he had attained 41 years and 7 seven months of age.

6. It is submitted by the learned senior counsel for the Administration that from the vacancy notice dated 07.12.2023, it is apparent that age limit has been categorically specified in clause 3 of the vacancy notice.

7. Clause 3 (v) specifies the age relaxation admissible in respect of the reserve category candidates as per the table therein. The table contains the list of reserved categories. The petitioner being a contractual SSCT is covered by the age relaxation clause contained at serial No. 8 of the table, which reads as follows:-

“ … …

8 Age relaxation to DRM and contract employees including SSCT of A & N Administration

In accordance with instructions/orders issued by the Andaman and Nicobar Administration vide circular No. 45/1998-PW dated 19.09.2011 up to 40 years of age (as per DoPT, GOI.”

8. Referring to the circular dated 19.09.2011 referred in this table, learned senior counsel submits that in accordance with the same relaxation of upper age limit criteria was to be extended subject to a primary condition that at the time of their initial engagement as SSCT they were not over age. Taking into consideration this stipulations contained in circular dated 19.09.2011 the vacancy notice clearly specifies upper age limit relaxation for employees working as SSCT to be upto 40 years of age. Such relaxation cannot be further extended by extending any other benefit cumulatively.

9. Relevant extract of the circular dated 19.09.2011 reads as follows:-

“4. It has therefore been decided that all such candidates would be eligible to be considered for age relaxation subject to the actual period spent as SSCT/Adhoc/Contract for working in the department to which they are applying. However, in the case of DRMs/Adhoc/Contractual workers they total period spent in each of the departments of this Administration shall be counted irrespective of the department where they are applying for regular appointment, provided the post is general in nature and it doesn’t require any specific technical qualification. It goes without saying that all cases of age-relaxation are subject to the primary condition that at the time of their initial engagement as SSCT/Adhoc/Contract/DRM, these employees were not overage.”…

10. Learned senior counsel also submitted that in any recruitment process, the provisions of age relaxation cannot be construed on a cumulative basis. In support of such submission he relies upon the decision of the Full Bench of the Bombay High Court in the case of Maharashtra Public Service Commission vs. Sunil Santosh Pawar and others reported in 2019 (1) Mh.L.J 447.

11. Learned senior counsel has also submitted that a candidate cannot claim any exclusive relaxation in the age criteria as a matter of right. The same is subject to discretion of the recruitment authority. The discretion in the present case has been exercised by fixing the maximum limit for relaxation of upper age criteria up to 40 years of age. The petitioner therefore cannot claim any exclusive benefit of additional 2 years relaxation. In support of such submission, learned senior counsel relied upon the decision of the Supreme Court in the case of State of Uttar Pradesh and others vs. Shanti Devi reported in 2022 SCC OnLine SC 2037.

12. The petitioner, being admittedly above 40 years therefore has rightly been excluded as being ineligible. The decision of the learned Tribunal and the direction issued by the Tribunal to consider the petitioner’s candidature as an eligible candidate and to place him at an appropriate place as per marks obtained, and to give him appointment if found eligible, is thus unsustainable.

13. Another submission advance by the learned senior counsel is that the stipulations contained in the Office Memorandum dated 20.05.1988 cannot be in any way altered or whittled down by issuance of the order No. 2758 (supra).

14. Learned senior counsel has specifically referred to paragraph 2 of the Office Memorandum dated 20.05.1988. Office memorandum dated 20.05.1988 reads as follows:

“No.15012/1/88-Estt.(D)

Government of India

Ministry of Personnel, Public Grievances & Pensions

Department of Personnel & Training

Estt.(D) Section

***

New Delhi, dated 20th May, 1988

OFFICE MEMORANDUM

Subject: Relaxation of upper age limit for Departmental candidates to Group ‘C’ posts.

The undersigned is directed to invite attention to the instructions contained in this Department O.M.No.F.4/4/74-Estt(D) dated the 20th July, 1976, and the Office Memorandum of the same number dated 9th April, 1981, regarding relaxation of age limits for departmental candidates for appointment to Group ‘C’ and ‘D’ posts.

2. The Staff Side of the National Council suggested that the age limit for the departmental candidates for appointment to Group ‘C’ and ‘D’ posts should be liberalized. They contended that in the case of Group ‘D’ employees there is no scope for promotion in the normal course and there is justification to increase the age limit at least for the Government servant to compete for higher grades by direct recruitment. The matter has been carefully examined and it has been decided that the departmental candidates may be allowed to compete along with candidates from the open market upto the age of 40 years for Group ‘C’ posts in the case of general candidates and 45 years in the case of Scheduled Castes and Scheduled Tribes. This concession will be subject to the usual conditions that the direct recruitment posts n Group ‘C’ posts are in the same line or allied cadres and a relationship could be established that service rendered in the posts will be useful for efficient discharge of the duties in the other categories of posts.

3. The Ministry of Finance etc. are requested to bring the above decision to the notice of all the attached and subordinate offices under them for guidance.

Sd/-

( MV. Kesavan)

Director”

15. We have considered the order dated 04.09.2024 of the learned Tribunal impugned in the present writ proceeding, the averments made in the writ petition, Office Memorandum dated 20.05.1988, the circular dated 19.09.2011 and the order No. 2758 dated 20.10.2022 issued by the Andaman and Nicobar Administration, Secretariat as well as two reports in the case of Sunil Santosh Pawar (supra) and Shanti Devi (supra) relied upon by the learned senior counsel for the petitioner.

16. At the very outset we observe that it is trite that any recruitment process is to be guided by the terms and conditions in the advertisement by which the same has been set in motion. The terms and conditions in the advertisement are applicable to all candidates and are required to be so implemented uniformly. Unless the terms and conditions of the advertisement are shown to be violative of the Article 14 and 16 of the Constitution of India, in conflict with the recruitment rules, or for such other reasons; it is in the interest of justice and fairness that the process of recruitment proceeds in accordance with the terms of the advertisement.

17. We therefore consider it appropriate to firstly consider the terms of the vacancy notice dated 07.12.2023 under which the vacancies were notified. The vacancy notice specified the number of vacancy of Graduate Trained Teacher in different subject. It also specified the eligibility criteria including age limit; the selection procedure including award of mark, as well as the formula for calculating weightage of marks. The procedure for application was also specified in the vacancy notice. The vacancy notice contains prescription regarding the entire recruitment process including format of experience certificate to be submitted by the candidates in proof of their experience.

18. Learned senior counsel is correct in his submission to the extent that Clause 3(v)8 of the notice dated 07.12.2023 lays down the extent of relaxation to be given in the upper age limit to the SSCT, i.e up to 40 years of age. Since this clause incorporates reference to circular dated 19.09.2011, extracted above, we find substance in his submission that the relaxation is subject to a primary condition in the circular dated 19.09.2011 that at the time of their initial appointment an SSCT like the respondent was required to be “not over age”.

19. Having observed so, we also proceeded to examine Clause 3(vi) of the vacancy notice, which read as follows:-

“In addition to above, one time two years’ age relaxation granted by the Hon’ble LG over and above upper age limit as prescribed in the Recruitment Rules shall be extended to the candidates for the current recruitment vide Admn’s order A-12011/10/2022-R & E cell sect dated 20.10.2022.”

20. We thus find that the vacancy notice contemplates a onetime, two years age relaxation over and above the upper age limit for the recruitment being conducted under the vacancy notice dated 07.12.2023. The one time relaxation is stated to be as per Administration order dated 20.10.2022. The same is in addition to the age relaxation specified in Clause 3(v)8, extracted above.

21. We therefore proceeded to examine the object and purpose of granting such onetime 2 years age relaxation in addition to the age relaxation specified in Clause 3(v)8 of the vacancy notice with reference to the Administrations order dated 20.11.2022 bearing order number 2758, which reads as follows:

“A-12011/10/2022-R&E Cell-Sectt

1/1671/2022

Andaman and Nicobar Administration Secretariat

Port Blair dated the 20st Oct, 2022

Order No. 2758

The direct recruitments proposed to be conducted by various Departments of Andaman and Nicobar Administration could not be conducted in the recent past due to Covid-19 pandemic. In the meantime, many aspiring candidates have become over aged and they could not apply for direct recruitments notified and to be notified in near future. Hence, there have been requests from various quarters to relax the upper age limit for direct recruitments notified and to be notified in near future by the various Departments.

After careful consideration of the requests, the Hon’ble Lieutenant Governor, UT Andaman and Nicobar Islands is pleased to grant relaxation of upper age limit by two years over and above the upper age limit prescribed in the relevant Recruitment Rules, as a onetime measure, for the direct recruitment of all the Group-B (Non Gazetted) posts to be notified by the Departments concerned. The relaxation shall be applicable for the first direct recruitment to be made for each cadre by the Departments concerned after issue of the order or it will be in force until 31.12.2023, whichever is earlier. The Departments have to follow the other conditions prescribed by the Finance Department before notifying the vacancies with the onetime relaxation. The age relaxation available to various categories shall also be applicable over and above the relaxation now given.

This issue with the approval of Hon’ble Lieutenant Governor, UT, A & N Islands.

Sd/-

( A. Yesu Raj )

Asst. Secretary (R&E/Perl)

F.No. 1-3/2022-R&E Cell Vol.VII”

22. A plain reading of the order No. 2758 makes it clear that the same is issued as a one time measure, considering requests made from various quarters to relax the upper age limit for direct recruitments notified and to be notified in near future. Such requests were made after lifting of lockdown, since for nearly 2 years, direct recruitment was not conducted by the various departments of the Andaman and Nicobar Administration due to the national lockdown imposed as a result of the Covid-19 pandemic. The Administration has taken into consideration the fact that aspiring candidates were thus liable to be found over age.

23. Thus, the Administration according consideration to such request/s based on the special circumstances arising out of Covid-19 pandemic granted relaxation of upper age limit by 2 years over and above the upper age limit prescribed in the relevant recruitment rules. This was done as a onetime measure for the direct recruitment of all the Group-B(Non Gazetted) posts to be notified by the departments concerned. The relaxation was applicable to the first direct recruitment to be made after issue of the order No. 2758, for each cadre by the departments concerned. The order No. 2758 was in force uptil 31.12.2023 or till the first recruitment process was undertaken after issuance of the order, whichever came earlier. Onetime age relaxation was explicitly made applicable “over and above the relaxation now given”. The vacancy notice in question was issued on 07.12.2023 which was during operation of the order No. 2758.

24. Such decision of the Administration is contained at Clause 3(vi) of the vacancy notice dated 07.12.2023. We, therefore, are of the opinion that the Tribunal did not fall in any error by directing the authorities to extend such benefit of 2 years age relaxation over and above the maximum 40 years to the petitioner.

25. We, therefore, find no merit in the submission of the learned senior counsel relying upon Clause 3(v)8 of the vacancy notice that the upper age limit could be relaxed only up to 40 years of age. Such a reading of the vacancy notice would render otiose, clause 3(vi) of the self same advertisement which provided for additional 2 years relaxation in the upper age limit of 40 years in terms of the order No. 2758 dated 20.10.2022. Additional 2 years relaxation of upper age limit criteria contemplated in the order of the Administration contained in order No. 2758, was explicitly made applicable to the recruitment process by Clause 3(vi) of the vacancy notice.

26. Such a reading as submitted by the learned senior counsel, would amount to taking away benefit of relaxation of upper age criteria granted by order No. 2758 in the extraordinary circumstances under which the said order was issued. Had the Administration any intention of not granting such relaxation in the recruitment process, they would not have incorporated Clause 3(vi) in the vacancy notice.

27. Insofar as decision of the Apex Court relied upon by the learned senior counsel for the Administration, we find that the present case lies in a different set of facts and circumstances. In the present case, keeping in background extraordinary circumstance arising out of the Covid-19 pandemic, the Administration has taken a conscious decision to address the grievance raised by various quarters since no recruitment process was conducted for about 2 years. The age relaxation of additional 2 years was thus duly notified by issuance of the order No. 2758 and was available to all applicants’ uniformly. It is not a case of the petitioner claiming any exclusive benefit, which is not uniformly available to all applicants under the advertisement.

28. The report of the Apex Court in the case of Shanti Devi (supra) would thus not apply to the facts and circumstance of the present case. In the said case, the Apex Court was considering whether the petitioner therein could claim the benefit of age relaxation under the Rules of 1992 after such claim had twice been rejected by the authorities. The first rejection therein was on 03.10.2018 and the second rejection was on 13.11.2018. The authority while rejecting the petitioner’s claim for age relaxation had noted that his case did not fall within the ambit of Rule 3 of the Age Relaxation Rules of 1992 and thus denied grant of age relaxation to the petitioner/respondent before the Apex Court.

29. The authorities rejected the claim of the petitioner therein for age relaxation as the petitioner’s claim was not covered by the Rules of 1992 since the petitioner was working as an Anganwadi Worker, on an honorarium and was not in regular government service post. Under such circumstance that the Apex Court has held that the petitioner therein could not claim age relaxation under the Rules of 1992 as a matter of right, nor she had any vested right to claim an exemption from a uniformly applicable criterion. In the present case as noted above, the age relaxation as per order No. 2758 was duly incorporated in the vacancy notice pursuant to which the applicant/respondent had participated in the recruitment process. The fact of the present case is therefore distinguishable from the fact and circumstance based on which the Apex Court passed decision in the case of Shanti Devi (supra).

30. Another report relied upon by the learned senior counsel in the case of Sunil Santosh Pawar (supra) also is not applicable in the facts and circumstances of the present case. The learned senior counsel has laid emphasis on paragraph 43 of the said judgment, which states as follows:-

“43. This means that where provisions relating to age relaxations are intended to be construed on cumulative basis, the rules/executive instructions say so in substantially specific or clear terms. From this, it is reasonable to infer that where the rules/executive instructions are silent on such a crucial aspect, the intention was never to construe such rules/executive instructions on cumulative basis and thereby quantitatively and qualitatively increase the scope, content or extent of relaxations. Any other interpretation might amount to reading into the rules/executive instructions something which is just not to be found therein. Such a construction might amount to supplying casus omissus when judicial precedents on the subject overwhelmingly militate against such supply except perhaps, in some exceptional situations.”

31. Upon going through the said paragraph it more than obvious that the law as regards to interpretation of provision relating to age relaxation has been laid down. As per this decision if rule and executive instruction is silent on such crucial aspect as age relaxation, and does not express any intention to construe cumulative applicability than an interpretation reading such relaxation into the rules or instruction which are not found therein would not be sustainable.

32. In the present case, the Administration has consciously taken a decision to grant additional 2 years relaxation over and above 40 years of age. Such decision is notified in order No. 2758 so as to grant such additional 2 years over and above 40 years age. The intention of the Administration to cumulatively grant 2 years relaxation therefore is explicit in order No. 2758 dated 20.10.2022. The same has been incorporated in the vacancy notice, in Clause 3(vi), therefore the present case is not a case where grant of cumulative benefit is not specified in the vacancy notice.

33. We are therefore of the opinion that the decision of the Full Bench of Bombay High Court in the case of Sunil Santosh Pawar (supra) also has no application in the facts and circumstance of the present case.

34. In the instant case, we find from a bare reading of clause 3(v) and (vi) of the advertisement that the same does contemplate further relaxation of two years over and above the existing limit to relaxation (upto 40 years) in upper age criteria.

35. The learned Tribunal has only given effect to the decision of the A & N Administration as manifest from the order No.2758 dated 20.10.2022 read with the Circular dated 19.09.2011, duly incorporated in the vacancy notice dated 07.12.2023, pursuant to which the applicant has applied for being considered.

36. We therefore find no infirmity in the decision and directions passed by the learned Tribunal.

37. As it is submitted by the learned senior counsel for the Administration that the time for complying with the directions in terms of the learned Tribunal’s order has lapsed, we consider it reasonable to extend the time limit for implementing the CAT’s directions by a period of eight weeks from date.

38. The writ petition is dismissed.

39. I agree