Failure to challenge a candidate's participation in the selection process at the relevant time estops the petitioner from raising a grievance at a belated stage.

JUDGMENT

Nelson Sailo, J. - Heard Mr. A.R. Malhotra, learned counsel for the petitioner and Ms. Mary L. Khiangte, learned Govt. Advocate appearing for the respondent Nos. 1 to 4. I have also heard Mr. J.C. Lalnunsanga, learned counsel appearing for the respondent No. 5 and Mr. F. Lalengliana, learned counsel appearing for the respondent No. 6.

2. The case of the petitioner in brief is that he responded to the Advertisement dated 23.07.2018 (Annexure-2) issued by the Secretary, Mizoram Public Service Commission (MPSC), inviting application for appointment to the four (4) vacant posts of Circle Education Officer under the School Education Department of the State Government. The eligibility criteria amongst others was that aspiring applicants should not be below 21 years and above 35 years of age as on 27.08.2018. Further, in respect of SC/ST candidates, 5 years concession on the upper age limit was also permissible.

3. It is the case of the petitioner that although the respondent No. 6, who also responded to the advertisement was found to be overaged and her application rejected vide Communication dated 11.07.2019 (Annexure-3) but when the recommendation of the selected candidates was published by the MPSC vide Notification dated 18.12.2019 (Annexure-5), the respondent No. 6 was placed at Serial No. 2 in order of merit while the petitioner was placed at Serial No. 1 in the panel list. The respondent authority concerned by invoking the relaxation clause provided under Rule 8 of the Mizoram Education & Human Resources Department (Group 'B' post) Recruitment Rules, 1995 (Rules of 1995 for short) in respect of those employed under the Sarva Shiksha Abhiyan (SSA) relaxed the upper age limit of five (5) persons including respondent No. 6 to make them eligible to participate in the selection process. According to the petitioner, the Notification dated 02.09.2019 is only belated and an afterthought since the examination for selection to the post in question had already been conducted w.e.f 27th to 29th August, 2019. As the petitioner was aggrieved with the action of the respondent authority concerned, he submitted a representation before the respondent No. 2 on 08.01.2020 (Annexure-6) but however, the same was not considered. Thus, having no other alternative, he is before this Court through the instant Writ Petition.

4. Mr. A.R. Malhotra, the learned counsel submits that since the date of birth of the respondent No. 6 is 26.06.1974, she would be around 44 years of age as on the date of the advertisement. Referring to Rule 8 of the Recruitment Rules of 1995, he submits that no doubt, the Governor of the State is empowered to relax any of the provisions of the Rules of 1995 with respect to any class or category of persons but to exercise such power, there has to be an opinion expressed and an order passed by recording reasons in writing. However, a perusal of the Notification dated 02.09.2019 would go to show that no specific reason has been assigned for invoking the relaxation clause and therefore, the Notification cannot stand the scrutiny of law besides being belated and an afterthought.

5. The learned counsel by also referring to the affidavit-in-opposition of the respondent No. 6 submits that the reason for the relaxation according to the official respondents was on account of humanitarian ground. He submits that the same cannot be a valid reason for invoking the relaxation clause. The established norms is that relaxation is to be given only in exceptional cases and importantly, in furtherance of public interest and fair dealing. Mr. A.R. Malhotra also submits that the decision to relax the relevant provisions of the recruitment rules is to be put in writing and an order passed in terms of Article 166 of the Constitution of India and conveyed to the concerned person or department. In the present case, there was no order passed when the examinations were conducted w.e.f. 27th to 29th August, 2019 and therefore, the respondent No. 6 could