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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.