[1] The petitioner, who is presently serving as an Associate Professor in the Department of Economics, GP Women’s College, Government of Manipur, applied for the post of Registrar of National Institute of Technology (NIT), Manipur pursuant to an Advertisement dated 12.10.2021. After going through the Recruitment Process, the petitioner was selected for the post of Registrar in the NIT, Manipur. The said appointment was a tenure post for a period of 5 (five) years or till attaining the age of 62 years. On being selected for the post of Registrar, NIT, the petitioner was released from the Department of Higher Education on 26.08.2013 for enabling him to join as Registrar, NIT, Manipur.

[2] On 3.8.2018, a Vacancy Circular was notified for filling up the vacant post of Registrar, which was caused due to vacation of the post by the Petitioner after completing his tenure. The petitioner, again applied for the post of Registrar, NIT, Manipur. By a letter dated 12.11.2018, the petitioner was asked to appear before the Selection Committee on 29.11.2018. The petitioner, accordingly appeared before the Selection Committee on 29.11.2018. The petitioner was anxiously waiting for the result to be declared. However, the result was not declared and no communication was received by the petitioner. In the meantime, the petitioner again came across another recruitment notice for recruitment to the post of Registrar, NIT, Manipur dated 11.01.2019. In the Recruitment Notice, it was stipulated that the mode of recruitment for the post of Registrar, NIT was on deputation for a period of 5 (five) years or till attaining the age of 62 years, whichever is earlier, or as fixed by the Government of India by orders issued in that regard from time to time. As the petitioner had the requisite qualification and experience, he again applied for the said post. On 02.02.2019, the Principal, GP Women’s College, Government of Manipur, forwarded the application submitted by the petitioner for allowing him to appear for recruitment to the post of Registrar, NIT to the Director, University & Higher Education, Government of Manipur. On 5.2.2019, the Joint Director, Directorate of University & Higher Education, informed the Principal, GP Women’s College, Imphal that the petitioner is free to submit the NOC issued by the Government to the concerned authority.

[3] In the meantime, the Under Secretary, Department of Higher Education, Ministry of Human Resources wrote a letter dated 20.02.2019 addressed to all the Directors of all the NITs wherein the recommendations of the Oversight Committee for removal of the anomalies of Non-Teaching Staff and Revised Recruitment Rules (RRs) for Non-Teaching in the NITs was circulated. In the said circular, it was also provided that new set of Recruitment Rules (RRs) for Non-Teaching Staff of all the National Institute of Technology (NITs) were issued vide Ministry’s Communication dated 20.12.2017. It was further provided that all Institutes were advised to strictly adhere to the Non-Teaching Recruitment Rules, (2019) after adoption by the respective Board of Governors.

[4] Referring to the Ministry’s earlier letter dated 20.02.2019 another letter dated 4.4.2019 was again issued by the Ministry of Human Resources Development, Department of Higher Education, Government of India to the Directors of all NITs for implementation of the Recruitment Rules for Non-Teaching Staff of NITs based on the recommendation of the Oversight Committee. By the said letter, all the Institutions were advised to adopt the new Recruitment Rules, (2019) for Non-Teaching Staff and strictly adhere to the RRs (2019) and Guidelines/Instructions in tandem with the Communication dated 20.02.2019. A copy of the Recruitment Rules, 2019 was also enclosed. In the enclosed Recruitment Rules, 2019, for the post of Registrars, in NITs, the age limit was provided as 56 years and the post of Registrar is to be filled up by deputation (including short term contract) for a period of 5 (five) years or till attaining the age of 62 years, whichever is earlier, or as fixed by the Government of India by orders issued in this regard from time to time.

[5] Consequently, the Director, NIT, issued a re-advertisement for the post of Registrar, NIT, Manipur dated 24.06.2019 and the mode of recruitment prescribed therein is by way of deputation (including short term contract) for a period of 5 (five) years or till attaining the age of 62 years, whichever is earlier, or as fixed by the Government of India by orders issued in this regard from time to time and the age limit was fixed at 56 years.

[6] Being aggrieved by the re-advertisement dated 24.06.2019, the petitioner filed a writ petition being WP(C) No.552 of 2019 before this Court challenging the legality of the said re-advertisement with a further prayer to direct the respondents to complete/finalise the recruitment process for recruitment to the post of Registrar, NIT, Manipur within a stipulated period which was already initiated in pursuance to the advertisement dated 11.01.2019.

[7] This Court by an order dated 22.07.2019 passed in WP(C) No.552 of 2019, directed the respondent Nos.1 and 2 to provisionally permit the petitioner to apply for the post of Registrar, in terms of the re-advertisement dated 24.06.2019. It was also directed that the result pursuant to the re-advertisement dated 24.06.2019 shall, however, not be announced without the leave of this Court.

[8] Thereafter, the Registrar (I/C) NIT, Manipur issued a Notice dated 26.08.2019 whereby the recruitment process initiated vide Advertisement dated 11.01.2019 and 24.06.2019 for the post of Registrar, National Institute of Technology, Manipur were cancelled with immediate effect.

Consequently, the learned counsel for the petitioner in WP(C) No.552 of 2019 submitted before this Court that during pendency of W.P(C) No.552 of 2019, the Registrar, NIT has issued Notice dated 26.08.2019 cancelling the Advertisement dated 11.01.2019 and re-advertisement dated 24.06.2019 for the post of Registrar, NIT and, accordingly, the matter has become infructuous.

Recording the submission made by the learned counsel for the petitioner in WP(C) No.552 of 2019, this Court vide order dated 28.08.2019 disposed of the WP(C) No.552 of 2019 as infructuous and also placed the Notice dated 26.08.2019 on record.

[9] Thereafter, the Director, NIT, Manipur, issued a Notification dated 9.9.2019 advertising for recruitment to the post of Registrar at NIT, Manipur. In the said Notification the mode of recruitment was by way of deputation (including short term contract) for a period of 5 (five) years or till attaining the age of 62 years, whichever is earlier, or as fixed by the Government of India by orders issued in this regard from time to time. The age limit was also fixed at 56 years.

[10] The petitioner, who was interested for the post of Registrar, NIT, accordingly submitted his application form on 16.10.2019 for the post of Registrar along with NOC issued by the Administrative Department. A request was also made to allow him to produce the Vigilance Clearance Certificate before the last date of form submission or at the time of interview.

On 10.11.2019, the petitioner came across a list of shortlisted candidates who are found to be provisionally eligible for the post of Registrar, NIT as well as the list of candidates who are found not eligible for the said post. Therein the name of the petitioner appeared at Sl.No.3 in the list of candidates found not eligible and remarks against him was shown as “age is beyond limit.” Further, at Note (iii), it was also provided that 7 (seven) days’ time (from the date of publication in the website) is given for observations/grievances, if any and may be sent by e.mail for further necessary action by the Management of the Institute, otherwise, the list will be treated as final.

Due to the rejection of his name for making application for the post of Registrar, NIT on the ground that he has crossed the age limit, the petitioner has filed the present Writ Petition with the following prayer:

“i) call for the records of the case and issue rule-nisi calling upon the respondents to show cause as to why the prayer prayed for by the petitioner shall not be granted. And, after hearing them make the rule absolute.

ii) issue a writ of mandamus by directing the respondents particularly the respondent No.1 & 2 to allow the petitioner to appear before the interview/selectin board for appointment to the post of Registrar, NIT, Manipur.

iii) issue a writ of certiorari to quash/set aside the portion of the document by which the petitioner was declared as ineligible candidate in respect of the petitioner for appointment to the post of Registrar, NIT, Manipur (Anexure-18).

iv) pass any other appropriate writ/order/direction that this Hon’ble Court deems fit and proper.

A N D

Pending disposal of the Rule, Your Lordships may be kind enough to pass an ex-parte stay and interim relief by directing the respondents to allow the petitioner to appear before the selection/interview board for appointment to the post of Registrar, NIT, Manipur or restrain the respondents from holding the interview for appointment to the post of Registrar, NIT, Manipur. And/or pass any other appropriate interim relief that this Hon’ble Court deems fit and proper.”

[11] This Court by order dated 29.11.2019 passed in the present Writ Petition had directed the respondents, particularly, respondent Nos.1 and 2 not to declare the result pursuant to the Advertisement dated 9.9.2019 for recruitment to the post of Registrar, NIT, Manipur.

[12] Heard Mr.Kh.Tarunkumar, learned counsel for the petitioner. Also heard Mr.B.P.Sahu, learned senior counsel for respondent Nos.1 and 2 and Mr.Darakishore, learned SPC for respondent No.3.

[13] Mr.Tarunkumar, learned counsel for the petitioner submits that pursuant to the Advertisement dated 12.10.2012 the petitioner was successful in the recruitment process and he was appointed to the post of Registrar, NIT, Manipur for a period of 5 (five) years from the date of his joining or till he attains the age of 62 years. After completion of his tenure of 5 (five) years another fresh Advertisement was issued on 3.8.2018 for the post of Registrar NIT, Manipur. The petitioner, again applied for the post of Registrar, NIT, Manipur and he appeared before the Interview Board on 29.11.2018. However, the result of the said recruitment was not declared and without cancelling the earlier recruitment the respondent Nos.1 and 2 had issued another Advertisement on 11.1.2019 for filling up the post of Registrar, NIT by way of deputation. The petitioner again applied after getting the approval from his concerned department. In the meantime, the Ministry of Human Resources Development, Government of India wrote letters to all the Directors of NIT, Government of India, wherein they were advised to strictly adhere to the new Recruitment Rule, (2019). Again by another letter dated 4.4.2019, the Director of all the NITs were advised to adopt the new Recruitment Rules, (2019) for Non –Teaching Staffs including the post of Registrar, NIT. As per the said new Recruitment Rule, the age limit was prescribed as 56 years. Thereafter another re-advertisement was issued on 24.6.2019 for recruitment to the post of Registrar, NIT, Manipur. In terms of the re-advertisement, the post of Registrar, NIT, Manipur is to be filled up by way of deputation and age limit was also prescribed at 56 years. As the petitioner had crossed 56 years, he had approached this Court by filing WP(C) No.552 of 2019 with the prayer to allow him to participate in the recruitment for the post of Registrar, NIT, Manipur. On 22.07.2019, this Court directed the respondents to provisionally permit the petitioner to apply for the post of Registrar, NIT Manipur in terms of the re-advertisement dated 24.6.2019. It was also directed not to declare the result of the said recruitment without the leave of the Court. However, instead of complying with the order dated 22.7.2019, passed by this Court in WP(C) No.552 of 2019 the respondents proceeded in issuing Notice dated 26.08.2019 whereby the recruitment process initiated in terms of the Advertisement dated 11.1.2019 and re-advertisement dated 24.6.2019 were cancelled. As such, the action of the respondents is in clear violation of the order dated 22.7.2019 passed by this Court and, therefore, the Notice dated 26.08.2019 should be treated as non-est in law.

[14] It is also submitted by Mr.Tarunkumar, learned counsel for the petitioner that the respondent Nos.1 and 2 proceeded to issue another fresh Advertisement dated 9.9.2019 for appointment to the post of Registrar, NIT and in the said advertisement the post is to be filled up by deputation (including short term contract) and age limit was fixed at 56 years. Thereafter, the list of shortlisted candidates for the post of Registrar was uploaded in the official website of the NIT, Manipur and in the said shortlisted candidates, his name appeared in the list of non-eligible candidates as he crossed the age limit.

[15] Referring to the affidavit in opposition filed by the respondent Nos.1 and 2 he contends that the question of waiver/abandonment of right of the petitioner does not arise in the present case for the reason that the present recruitment pursuant to the Advertisement dated 9.9.2019 is only a continuing process of Advertisement dated 3.8.2018.

He also submits that the Notice dated 26.08.2019 is not sustainable in the eye of law inasmuch as the same was issued after having a clear knowledge of the interim order dated 22.7.2019 passed by this Court in WP(C) No.552 of 2019, wherein this Court had directed the respondents to allow the petitioner to apply provisionally for the post of Registrar, NIT Manipur. As such, the Notice dated 26.08.2018 should be treated as non-est in the eye of law. Further, he also submits that no reason has been cited for cancellation of the earlier recruitment process pursuant to the Advertisement dated 11.01.2019 and 24.6.2019. With regard to the alternative remedy as provided in Note-3 of the list containing name of the eligible and non-eligible candidates, he submits that despite having this alternative remedy, one can approach this Court under Article 226 of the Constitution by filing a Writ Petition for enforcement of the fundamental rights of the writ petitioner. He also vehemently submits that the Board of Governors has not adopted the new Recruitment Rule, 2019 for fixing the age limit of 56 years for the post of Registrar, NIT, Manipur when the Advertisement dated 9.9.2019 was issued. It is also submitted that the cooling off period which has been heavily relied by the respondent Nos.1 and 2 in the affidavit in opposition is not applicable in the present case for the reason that the first appointment of the petitioner as Registrar, NIT, Manipur on 30.07.2013 was not by way of deputation. Hence the question of deputation period does not arise in the present case. The issue of cooling off period will be applicable only when his appointment is by way of deputation/Foreign Service.

[16] Relying on the reply affidavit filed by the petitioner, he submits that his case is covered by the Office Memorandum dated 5.2.2018 issued by the Ministry of Personnel, PD & Pension, Department of Personnel and Training, Government of India, which provides that maximum age limit in case of appointment by deputation/deputation (including short term contracts) to the post in SAG level and above (i.e., Level-14 of the Pay Matrix and above as not exceeding -58 years, on the closing date of receipt of the application. The Office Memorandum further provides that the Administrative Ministries are requested to take necessary action for amendment of the Recruitment Rules/Service Rules to incorporate the revised age limit for deputation/deputation (including short term contracts) for posts of Level of SAG and above. In that view of the matter, he submits that a direction be issued to respondent Nos.1 and 2 to allow the petitioner to appear before the Selection/Interview Board for appointment to the post of Registrar, NIT, Manipur.

[17] It is also submitted by Mr.Tarunkumar, learned counsel for the petitioner that as the respondent Nos.1 and 2 had admitted the fact that the amended Recruitment Rules of 2019 for the post of Registrar, NIT has not been adopted by the NIT Manipur at the time of issuance of the Advertisement dated 9.9.2019 and further the fact that respondent Nos.1 and 2 have also admitted that cooling off period will not be applicable in the present case as earlier appointment of the petitioner was not by way of deputation and, therefore, the present ongoing recruitment for the post of Registrar, NIT, Manipur pursuant to advertisement dated 9.9.2019 is liable to be quashed and set aside and, further a direction may also be given to respondent Nos.1 and 2 to initiate fresh recruitment for the post of Registrar, NIT, Manipur by allowing the petitioner to appear before the Interview/Selection Board within a stipulated period by following earlier recruitment rules, wherein there is no age limit for the said post. He has also placed reliance in the case of (1) Naorem Ibomcha Singh & Ors reported in 2006 (Suppl) GLT 183 (2) (2) State of Nagaland Vs Lipok Ao & Ors reported in (2005) 3 SCC 752, (3) State of West Bengal & Ors Vs Committee for Protection of Democratic Rights, West Bengal & Ors reported in (2010) 3 SCC 571, (4) Konthoujam (O) Pramodini Devi Vs State of Manipur reported in 2017 (3) GLT (MN) 518 (5) Bangalore Development Authority Vs Vijaya Leasing Limited & Ors reported in (2013) 14 SCC 737 & (6) Rupadhar Pujari Vs Gangadhar Bhatra reported in (2004) 7 SCC 654.

[18] Mr.B.P.Sahu, learned senior counsel appearing on behalf of respondent Nos.1 and 2 submits that after the interim order dated 22.07.2019 was passed in WP(C) No.552 of 2019, the respondent Nos.1 and 2 had considered it appropriate to issue the Notice dated 26.08.2019 cancelling the Advertisements dated 11.01.2019 and 24.6.2019 inasmuch as they have not followed the Recruitment Rules, (2019) circulated by the Ministry of Human Resources Development, Department of Higher & Technical Education, Government of India. Thereafter, instead of challenging the Notice dated 26.08.2019, the learned counsel for the petitioner had submitted before the Court that in view of the Notices dated 26.08.2019 cancelling the Advertisements dated 11.01.2019 and re-advertisement dated 24.06.2019 for the post of Registrar, NIT, Manipur, WP(C) No.552 of 2019 has become infructuous. Accordingly, this Court by recording the statement made by learned counsel for the petitioner had disposed of the WP(C) No.552 of 2019 by order dated 28.08.2019 as infructuous. Thereafter, the petitioner applied for the post of Registrar, NIT, pursuant to the Advertisement dated 9.9.2019 knowing fully well that that he was not eligible in view of the age limit prescribed in the advertisement. He also submits that the petitioner cannot take shelter under the earlier advertisement dated 3.8.2018 as the Committee had not found any candidate to be suitable and, thereafter, the Advertisement dated 11.01.2019 was issued. Therefore, the petitioner is debarred from claiming recruitment under the Advertisement dated 3.8.2018 as the same has been eclipsed with the advertisement dated 11.01.2019, which was also cancelled by the Notice dated 26.08.2019. Further, he submits that the petitioner has failed to comply with Note-(iii) contained in the list of eligible and non-eligible candidates inasmuch as he has failed to redress his grievances within 7 (seven) days to the NIT.

[19] Learned senior counsel further submits that in terms of Rule 8.4 of Appendix 5 of FR & SR, which provides for a period of 3 (three) years as cooling off period after completion of deputation/foreign service upto Joint Secretary Level post and one year for Additional Secretary level post, the petitioner is currently within the cooling off period as the petitioner was released from the post of Registrar, NIT, w.e.f. 28.08.2018 vide order dated 27.08.2018. Therefore, the petitioner shall continue to be in the cooling off period till 27.08.2021 and, accordingly, the petitioner is not eligible for the said recruitment process.

[20] Learned senior counsel for respondent Nos.1 and 2 further submits that Appendix 5 of FR & SR in Sub Rule 12, provides that deputation should be restricted to officers below 56 years of age. In that view of the matter the submission made by the learned counsel for the petitioner that the upper age limit was not prescribed in the earlier set of advertisements even if the recruitment process is conducted in accordance with the earlier Rules, the petitioner is debarred from claiming to have the right for relaxation of his age inasmuch as Sub Rule 12 of Appendix 5 of FR SR clearly provides that deputation should be restricted to officers below 56 years of age.

[21] Mr.B.P.Sahu, learned senior counsel for the respondent also submits that the petitioner was appointed on deputation in his initial appointment as he continued his lien with his parent department which was extended yearly. Further, the petitioner joined his parent department and started imparting his duty as Associate Professor in the G.P.Womens’ College under the department of Higher Education, Government of Manipur. The omission of the word ‘deputation’ in the initial advertisement dated 12.10.2012 cannot be a ground of presumption that the petitioner was not appointed on deputation inasmuch as the method of appointment, his release, joining etc, should be taken into account as a whole and also keeping in view that he maintained his lien with his parent department throughout his five years tenure as Registrar, NIT. In that view of the matter, he submits that there is no merit in the Writ Petition and, accordingly, the same deserves to be dismissed.

He has also placed reliance in the cases of (1) Bengalore Development Authority Vs Vijaya Leasing Ltd & Ors reported in (2013) 14 SCC 737 (2) State of West Bengal & Ors Vs Committee for Protection of Democratic Rights West Bengal & Ors reported in (2010) 3 SCC 571, (3) Konthoujam (O) Pramodini Devi Vs State of Maniur & Ors reported in 2017 (3) GLT (MN) 518, (4) Rupadhar Pujari Vs Gangadhar Bhatra reported in (2004) 7 SCC 654, (5) State of Nagaland Vs Lipok Ao & Ors reported in (2005) 3 SCC 752, (6) Naorem Ibomcha Singh & Ors Vs Joint Secretary (Revenue) & Ors reported in 2006 (Suppl) GLT 183 (7) Krishna Bahadur Vs Purna Theatre & Ors reported in (2004) 8 SCC 229 (8) P Dasa Muni Reddy Vs P.Appa Rao reported in (1974) 2 SCC 725 (9) Ashish Kumar Vs State of Uttar Pradesh & Ors reported in (2018) 3 SCC 55 (10) State of H.P & Ors Vs Gujarat Ambuja Cement Ltd & Anr reported in (2005) 6 SCC 499 (11) Whirlpool Corpn Vs Registrar of Trade Marks, Mumbai & Ors reported in (1998) 8 SCC 1 (12) Harbanslal Sahnia & Anr Vs Indian Oil Corpn Ltd & Ors reported in (2003) 2 SCC 107 (13) United Bank of India Vs Satyawati Tondon & Ors reported in (2010) 8 SCC 110 (14) Manohar Lal (dead) by LRs Vs Ugrasen (dead) by LRs & Ors reported in (2010) 11 SCC 557 (15) State of Orissa & Anr Vs Mamata Mohanty reported in (2011) 3 SCC 436.

[22] I have considered the submissions forwarded by learned counsel appearing for the parties.

[23] The first question that requires to be considered by this Court is whether the initial appointment of the petitioner pursuant to the Advertisement dated 12.10.2018 was to a tenure post or on deputation. A perusal of the letter dated 13.07.2013 would clearly indicate that the appointment is on probation for a period of one year from the date of joining to the Institute. It also provides that it is a tenure post for a period of 5 (five) years or till attaining the age of 62 years, whichever is earlier or as fixed by the Government of India by orders issued in this regard from time to time.

A mere perusal of the letter dated 30.07.2013 would clearly indicate that it is a tenure post of 5 (five) years or till attaining the age of 62 years. However, this Court cannot ignore the fact that the petitioner was maintaining his lien with his parent department which was being extended yearly for the period he was functioning as Registrar, NIT and also the fact that after completion of his 5 (five) years as Registrar, NIT, Manipur he had resumed his office as Associate Professor in the department of Economics, G.P.Women’s College, Government of Manipur, Imphal. This would clearly indicate that it was a deputation appointment and not a tenure post. I am, therefore, of the view that Rule 8.4 of Appendix 5 of FR SR which provides for 3 years cooling off period is applicable to the petitioner.

[24] The vacancy circular dated 3.8.2018 has also been considered by this Court. Pursuant to the vacancy circular, the petitioner had applied for the post of Registrar, NIT. He was also called for the interview which was held on 29.11.2018. However, without announcing the result the respondent Nos.1 and 2 had again issued another recruitment notice dated 11.01.2019 for appointment of Registrar, NIT, Manipur. The petitioner, consequent to the Recruitment Notice dated 11.01.2019 had applied again for the said post. This would clearly indicate that when the petitioner had appeared before the Interview Board pursuant to the vacancy circular dated 3.8.2018 and had again applied against the Recruitment Notice dated 11.01.2019 the petitioner had already abandoned his right in terms of the vacancy circular dated 3.8.2018. It would have been prudent on the part of the petitioner to challenge Recruitment Notice dated 11.01.2019 which he failed to do so and instead had proceeded to apply for the post of Registrar, NIT in terms of the Recruitment Notice dated 11.01.2019.

[25] Thereafter, the respondent Nos.1 and 2 had again issued re-advertisement dated 24.06.2019 wherein the stipulation of 56 years age limit was prescribed. The petitioner on being aggrieved by the age limit prescribed in the said re-advertisement had approached this Court by way of filing WP(C) No.552 of 2019 and this Court by order dated 22.07.2019 had passed the following order:

“O R D E R

Heard Mr.Kh.Tarunkumar, learned counsel appearing for the petitioner.

Issue notice.

Ms.Kunjeshori, learned legal assistant of National Institute of Technology (NIT), Manipur enters appearance on behalf of respondent Nos.1 & 2 and Mr.W.Darakishwor, learned senior Panel Counsel appearing on behalf of respondent No.3. Accordingly, notice on the respondents are complete.

It is the case of the petitioner that the respondent Nos.1 & 2 had issued an Advertisement dated 11.01.2019 inviting applications for the post of Registrar to be filled on deputation. The last date of application in terms of the Advertisement dated 11.01.2019 was 15.02.2019. However, the same was extended by another Notification dated 14.02.2019 to 25.02.2019. It is submitted that the petitioner being eligible submitted his application pursuant to the Advertisement dated 11.01.2019. However, without terminating the recruitment process in terms of the Advertisement dated 11.01.2019, the respondents had issued another Re-advertisement dated 24.06.2019 inviting applications for the post of Registrar as per new recruitment rules which makes the petitioner ineligible for making his application. It is submitted that the last date for submission of application in terms of the re-advertisement dated 24.06.2019 is 23.07.2019.

Considering the above, the respondent Nos.1 and 2 are directed to provisionally permit the petitioner to apply for the post of Registrar in terms of the re-advertisement dated 24.06.2019. The result pursuant to the Re-advertisement dated 24.06.2019 shall however not be announced without the leave of this Court.

List the matter on 28.08.2019.”

[26] The respondent Nos.1 and 2 again found it prudent to issue Notice dated 26.08.2019 whereby the recruitment process initiated pursuant to Advertisement dated 11.01.2019 and 24.06.2019 were cancelled with immediate effect. Here too, the petitioner had failed to challenge the Notice dated 26.08.2019 and instead learned counsel for the petitioner had submitted before this Court that in terms of the Notice dated 26.08.2019, WP(C) No.552 of 2019 had become infructuous. Accordingly, this Court by order dated 28.08.2019 had disposed of the WP(C) No.552 of 2019 as infructuous. The order dated 28.08.2019 passed in WP(C) No.552 of 2019 reads as under:

“28.08.2019

Mr.Kh.Tarunkumar, learned counsel for the petitioner submits that during pendency of this writ petition, the Registrar, NIT (National Institute of Technology), has issued a Notice dated 26.08.2019 cancelling the Advertisement dated 11.01.2019 and re-advertisement dated 24.6.2019 for the post of Registrar, NIT, Manipur. In that view of the matter, he submits that the matter has become infructuous.

Mr.B.P.Sahu, learned senior counsel appears on behalf of the NIT.

The writ petition is disposed of as infructuous.

The Notice dated 26.08.2019 is placed on record.”

[27] In the considered opinion of this Court, the action of the petitioner with regard to his candidature in terms of the vacancy circular dated 3.8.2018, Recruitment Advertisement dated 11.01.2019 and re-advertisement dated 24.06.2019 stand abandoned inasmuch as he has failed to challenge the Recruitment Notice dated 11.01.2019 as well as Notice dated 26.08.2019 whereby the Advertisement dated 11.01.2019 and re-advertisement dated 24.06.2019 were cancelled.

[28] Therefore, what remains before this Court is only the Advertisement dated 9.9.2019 against which the petitioner had also made his application. The grievance of the petitioner arose only when his name was listed amongst the non-eligible candidates due to his crossing the age limit. At this stage, it would be pertinent to refer to the Ministry of Human Resources Development, Department of Higher Education, Government of India letters dated 20.02.2019 and 4.4.2019. In the letter dated 20.02.2019 the Director of all the NITs are being advised to strictly adhere to the Non-Teaching recruitment Rules, (2019) after adoption by the respective Board of Governors. Again in the letter dated 4.4.2019 it is also advised to adopt the new Recruitment Rules of 2019 to Non-Teaching Staff and strictly adhere to the Recruitment Rules, (2019) and guidelines/instructions in tandem with the Communication dated 20.02.2019. The Recruitment Rules of 2019 has also been consider

ed by this Court, wherein for the post of Registrar in NITs, the age limit has been clearly prescribed as 56 years and method of recruitment as deputation (including short term contracts) for a period of 5 (five) years or till attaining the age of 62 years, whichever is earlier or as fixed by the Government of India by orders issued in this regard from time to time. This would indicate that the Rules of 2019 was already in force before issuance of the advertisement dated 9.9.2019. [29] In the case of Ashish Kumar Vs State of Uttar Pradesh & Ors reported in (2018) 3 SCC 55 the Hon’ble Supreme Court has held as under: “27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence. In this context, reference is made in the judgment of this Court in Malik Mazhar Sultan V U.P.Public Service Commission : (2006) 9 SCC 507. Para 21 of the judgment lays down the above proposition which is to the following effect (SCC p.512) “21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1.7.2001 and 1.7.2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it is issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.” [30] In the considered opinion of this Court, despite the Board of Governors not having adopted the Recruitment Rules, 2019, as advised by the Ministry of Human Resources Development, Department of Higher Education, Government of India, the respondents had not erred while prescribing the age limit of 56 years in the Advertisement dated 9.9.2019. [31] The contention of the learned counsel for the petitioner with regard to the Office Memorandum dated 5th February, 2018 issued by the Ministry of Personnel, PG & Pension, Department of Personnel & Training, Government of India which is annexed as Annexure M/5 to the reply affidavit has also been considered. It is already trite that Office Memorandum cannot overrule the Rules in force. In that view of the matter his contention in this respect also fails. [32] In the facts and circumstances of the discussions made hereinabove, the authorities relied upon by the learned counsel for the petitioner is not applicable to the present case in hand. [33] The Writ Petition being devoid of merit is, accordingly, dismissed. Interim order stands vacated. No cost.