Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 948 OF 2009
(Arising out of SLP (C) No. 5094 of 2006)
UNION OF INDIA … APPELLANT
VERSUS
DHARAM PAL ETC. … RESPONDENTS
J U D G M E N T
S.B. SINHA, J.
1. Leave granted.
2. Union of India is before us aggrieved by and dissatisfied with a
judgment and order dated 13.7.2005 passed by the High Court of Punjab
& Haryana at Chandigarh in Civil Writ Petition Nos. 8457/2000,
8458/2000 and 8489/2000.
2
3. Respondents herein joined the Railway services as Signal Khalasis
in S & T Department, Delhi Division, Northern Railway in the year 1970.
The next promotional post was the one of Material Checking Clerk
(MCC). The terms and conditions of service are governed by Indian
Railway Establishment Manual (IREM). Rule 174 of IREM regulates
procedure for appointment to Class-III (Group-C) posts i.e. Office Clerk.
It provides that the vacancies in the said category are to be filled from
two sources (i) 66-2/3% by direct recruitment through the agency of the
Railway Recruitment Boards; and (ii) 33-1/3% by promotion by selection
of specified Group ‘D’ staff. We are concerned with the second one.
4. Respondents, thus, could be appointed in the post MCC only in
terms of the procedure of selection laid down therein. The selection
procedure for appointment in the grade of Office Clerk is laid down in
Chapter II, Section B of the IREM and as per Rule 219 therein, the
selection procedure consists of written test and interviews. In the written
test 50% of the questions are to be of objective type.
5. On and from 5.9.1986, the respondents and several other
employees were allowed to officiate on ad hoc basis as MCC.
3
Indisputably, for the said purpose, the mandatory procedure for
promotion as contained in Rule 219 had not been followed. Even some
of the employees, it is stated before us, had been working on officiating
basis even prior to them.
The appointment letter reads as under:
“Sub: Adhoc promotion as MCC grade 260-400
(Rs.) under SI (9)-SID/I, and UMB II and DI/D-
I, SRE.
The following senior most Khalasi grade
196-232 (Rs.) under the control of DST/UMB
are hereby allowed to officiate as MCC Gr. 260-
400 Rs. on purely ad hoc basis against the
existing vacancies.
1. Sh. Dharam Pal Kh. Under I/D-I/UMB.
2. Sh. Rakesh Kumar. Kh. Under SI (D)/II/UMB.
3. Sh. Ashok Kumar under SI/D/I/SRF
They will draw Rs.260/- per month in grade
260-400 from the date of their resumption.
They will not confer upon them/any right for
future promotion. They will be reverted on
arrival of selected candidates.
Note:- This has approval of Sr. DSTE,
New Delhi
Sd/- for Senior Divisional Personnel Officer,
New Delhi.”
4
6. Those clerks appointed on officiating basis in an ad hoc manner
made representations before the General Manager, Northern Railways for
their promotion on regular basis. On or about 8.5.1987, a decision was
taken that services of those who had completed three years’ ad hoc
appointment may be regularized on the basis of service record and viva-
voce test as a one time dispensation and it was treated as a special case
and not to be treated as a precedent. As the respondents had not
completed three years’ ad hoc service at the relevant time, their cases
were not considered. Another representation was made by them on
4.4.1990 on the premise that at that time they had completed three years
of ad hoc service. The said representation was rejected.
An Original Application was filed by them before the Central
Administrative Tribunal (for short “Tribunal”) praying for issuance of a
direction upon the appellant to regularize their services as MCC and to
give the benefit of continuous ad hoc officiation towards seniority from
the date they had been working as MCC and promote them further to the
post of UDC from the date they became eligible therefor. It is stated that
the employees of Ambala Division had also been given the benefit of the
said concession.
5
7. Indisputably, respondents took part in the selection process for
appointment in the post of MCC although they had completed more than
three years of service. Viva-voce test was conducted. They were, thus,
considered for appointment. Out of the employees who had appeared in
the said viva-voce test, 12 persons became successful. On or about
24.10.1997, a provisional panel was prepared wherein their names were
included. The services of the said 12 successful employees were
regularized with immediate effect. Their services were later on directed
to be regularized retrospectively with effect from 10.8.1988.
8. By reason of a judgment and order dated 11.2.2000, the Tribunal
allowed the Original Application filed by the respondents opining that
despite the fact that ad hoc appointments were de hors the recruitment
rules but in view of the purported policy decision taken by the appellant
herein, their services were required to be regularized, stating:
“9. As is evident from the principle cited
verbatim above, as laid down by the Apex
Court, even if the initial officiating appointment
was de hors the recruitment rules in the wake of
regularization of such appointments, the entire
period of the officiating service becomes
eligible for other service benefits, like the
fixation of seniority and pay. Though the
6
learned counsel for the respondents has
strenuously sought to draw a distinction
between ad hoc appointments on the one hand
and the officiating appointments on the other, he
has failed to produce any material based on the
provision of either the Indian Railway
Establishment Manual or the rules of
appointments applicable generally to different
Departments of the Government of India that for
the purpose of reckoning the service rendered
by an employee such a distinction does, indeed,
exist or is recognized by those provisions. A
mere recourse to the dictionary meaning of an
officiating appointment, which, were
nevertheless not, merely says that it amounts to
discharging the official duties of a post, does
not come to the help of the respondents in any
meaningful manner. It is not denied by the
respondents that the applicants had, indeed,
been discharging all the duties normally
attached to the posts of MCCs. In that view of
the matter we fail to understand how in this
context officiating appointments as MCCs
would have been different from an ad hoc
appointment as MCCs.
10. For the reasons discussed by us at some
length above, we are unable to agree with the
contentions urged on behalf of the respondents
that the applicants are not eligible for counting
the ad hoc period of their service between 1986
and 1988 for the purpose of normal service
benefits like seniority, fixation of pay etc.”
7
9. Appellant challenged the aforesaid decision by filing writ petitions
before the High Court, which by reason of the impugned judgment, have
been dismissed.
10. Mr. Qadri, learned counsel appearing on behalf of the appellant
would urge:
i. The impugned judgment of the High Court cannot be
sustained insofar as it failed to take into consideration
the financial implication in directing regularization of
services of the respondents on completion of three
years’ from their respective dates of officiation.
ii. Such an order would affect the seniority of other
employees who having not been impleaded as parties,
the seniority issue could not have been determined.
iii. There are also other employees who had been selected
later on and may claim seniority on the said basis.
iv. Respondents having been appointed on an ad hoc
basis without any right whatsoever, their services
could not have been directed to be regularized.
8
11. Mr. D.R. Sharma, learned counsel appearing on behalf of the
respondents, on the other hand, would contend that having regard to the
fact that some employees of Ambala Division had been given similar
benefits and keeping in view the fact that the respondents had been
working since 1987, this Court may not exercise its discretionary
jurisdiction under Article 136 of the Constitution of India.
Drawing our attention to a decision of this Court in T. Vijayan &
ors. vs. Divisional Railway Manager & ors. [(2000) 4 SCC 20], it was
urged that as grant of ad hoc promotion is permissible in terms of the
Rule 216 of IREM, the High Court was within its jurisdiction to pass the
impugned judgment.
12. Before adverting to the rival contentions raised hereinbefore, we
may notice the relevant Rules:
"213. Promotion.-- (a) A Railway servant may
be promoted to fill any post whether a selection
post or a non-selection post only if he is
considered fit to perform the duties attached to
the post. The General Manager or the Head of
Department or Divisional Railway Manager
may prescribe the passing of specified
departmental or other test as conditions
precedent to a Railway servant being considered
fit to hold specified post; such rules should be
9
published for the information of the staff
concerned.
(b) Unless specifically provided otherwise, the
promotion shall be made without any regard for
communal or racial consideration."
"214. (a) Non-selection posts will be filled by
promotion of the senior most suitable Railway
servant. Suitability whether an individual or a
group of Railway Servants being determined by
the authority competent to fill the posts on the
basis of the record of service and/or
departmental tests if necessary. A senior
Railway servant may be passed over, only if
he/she has been declared unfit for holding the
post in question. A declaration of unfitness
should ordinarily have been made sometime
previous to the time when the promotion of the
Railway servant is being considered.
(b) When, in filing of a non-selection post, a
senior Railway servant is passed over the
authority making the promotion shall record
briefly the reason for such supersession.
(c) In respect of promotion to non-selection
post, the following principles should be
followed:-
(i) Staff in the immediate lower grade
with a minimum of 2 years service in that
grade will only be eligible for promotion.
The service for this purpose includes
service, if any rendered on ad hoc posts
followed by regular service without
10
break. The condition of two years service
should stand fulfilled at the time of actual
promotion and not necessarily at the stage
of consideration.
(ii) The number of eligible staff called
for consideration should be equal to the
number of existing vacancies plus those
anticipated during the next four months
due to normal wastage (i.e.
retirement/superannuation), likely
acceptance of request for voluntary
retirement, staff approved to go on
deputation to other units, staff already
empanelled for the ex-cadre posts,
creation of additional posts already
sanctioned by the competent authority,
and staff likely to go out on transfer to
other Railways/Divisions.
(iii) Where non-selection posts are
filled from different categories of staff, no
hard and fast limits need be prescribed as
to the number of the candidates to be
admitted from each eligible category. In
cases where posts are to be filled on the
quota basis it should be ensured that each
category is adequately represented within
the overall number of candidates called
up Employees passing the suitability test
should only be placed in the select list.
Employees not qualifying in the test
should not be taken merely to make up
the quota fixed.
(iv) An employee who has passed a
suitability test once need not be called for
11
the test again and should be eligible for
promotion as and when vacancies arise.
(v) A suitability test should be held at
the interval which should not be less than
six months. All the eligible candidates as
per their seniority including those who
failed at the last test should be called. The
period of six months is reckoned from the
date of announcement of the result.
(vi) If an employee fails in a suitability
test but is called up again, a suitability
test, after a time lag of six months and he
passes the same, he should be given
preference over his junior who had passed
the suitability test earlier than him but is
still waiting to be promoted for want of a
vacancy."
xxx xxx xxx
216.A. Ad hoc promotion against selection and
non-selection posts.-- (i) Ad hoc promotions
should be avoided as far as possible both in
selection and non-selection posts, and where
they are found inescapable and have to be made
in the exigency of service, they should be
resorted to only sparingly and only for a short
duration of 3 to 4 months. The ad hoc
promotion should be ordered only from amongst
the seniormost suitable staff. As a rule a junior
should not be promoted ignoring his senior.
(ii) The following further guidelines should
be adhered to while ordering ad hoc pro-
motions:
12
(a) In case of non-selection posts
which are filled on the basis of seniority
cum suitability while there is no provision
for any lengthy waiting list. The
processing involved being not unduly
cumbersome or time consuming the post
shall be filled after following the
prescribed procedure quickly. When these
posts are to be filled by trade test, this
should be conducted systematically.
Necessity for ad hoc promotion is thus
obviated.
(b) In regard to selection posts, it is
essential that all the selection should be
conducted regularly as per extant
instructions. While there is no objection
to ad hoc promotions being made in leave
vacancy and short duration vacancy, ad
hoc promotion against regular promotion
should be made only after obtaining Chief
Personnel Officer's approval. Proposal
sent to Chief Personnel Officer for ad hoc
promotion against regular vacancy should
indicate detailed justification as to why
regular selection could not be held. Chief
Personnel Officer should keep record of
having accorded approval to such ad hoc
promotion and review the progress made
in filling up these posts by selected
persons every month. Chief Personnel
Officer should also review selection to all
posts afresh, whether such posts are
controlled either at the Divisional level or
at extra Divisional level. He should also
keep the record of the categories where he
has to approve ad hoc promotions and
these records should be available to the
Board's Officer on their visit to Railways.
13
(Board's letter No. E(NG) II/81/RC-1/1
dated 1.4.1981)
(c) Notification for ad hoc promotions
against selection posts should specifically
include a remark to the effect that the
person concerned has not been selected
for promotion and that his temporary
promotion gives him no right for regular
promotion and that his promotion is to be
treated as provisional. For the purpose of
drawing his pay which should not be
drawn for more than three months
without General Manager's specific
sanction. The General Manager should
issue provisional sanction for periods
exceeding six months at a time and these
powers should be exercised by the
General Managers/Additional General
Managers personally or by his senior Dy.
General Manager.
(Board's letter No. E(NG) 1-73-PM-1/222
dated 23.2.1974;
E-55/PM-1/19/3 dated 11.1.1955;
E(NG) 1-79-PM 1-105 dated 26.4.79 & E
(NG)l-77-PM 1-117 dated 17.10.77)
(iii) In any case no second ad hoc promotion
shall be allowed.
(Board's letter No. E(NG) 1-85/PM/5-III dated
23.8.1985)
14
xxx xxx xxx
"302. Seniority in initial recruitment grades.--
Unless specifically stated otherwise, the
seniority among the incumbents of a post in a
grade is governed by the date of appointment to
the grade. The grant of pay higher than the
initial pay should not, as a rule, confer on a
railway servant seniority above those who are
already appointed against regular posts. In
categories of posts partially filled by direct
recruitment and partially by promotion, the
criterion for determination of seniority should
be the date of regular promotion after due
process in the case of promotees and the date of
joining the working post after due process in the
case of direct recruit, subject to maintenance of
inter-se seniority of promotees and direct
recruits among themselves. When the dates of
entry into a grade of promoted railway servants
and direct recruits are the same they should be
put in alternate positions the promotes being
senior to the direct recruits, maintaining inter-se
seniority of each group.
Note.- In case the training period of a direct
recruit is curtailed in the exigencies of service,
the date of joining the working post in case of
such a direct recruit shall be the date he would
have normally come to a working post after
completion of the prescribed period of training."
13. A policy decision taken by the authorities of the Railway to
regularize the services of those MCCs who had been appointed on ad hoc
15
basis was a one time measure. It was not to be followed as a precedent.
It was, therefore, not necessary to follow subsequently.
14. Indisputably, Rule 216 provides for ad hoc promotion against
selection and non-selection posts.
In T. Vijayan (supra), this Court opined:
“18 . The above para indicates that ad hoc
promotion is permissible pending regular
selection. Once ad hoc promotion is found to be
permissible under the Rules and Respondents 4
to 143 were promoted on ad hoc basis in the
exigencies of service, pending regular selection,
which, incidentally, took sufficient time as
Respondents 4 to 143 who were on official duty
“online” were not available at one point or at
one time to facilitate the selection, the entire
period of ad hoc service will have to be counted
towards their seniority, particularly as all the
respondents (4 to 143) were duly selected and
their services were also regularised with effect
from 16-12-1991 by order dated 18-1-1992. The
employees concerned, including Respondents 4
to 143 had already been alerted for the process
of selection which had been started in 1988 ( sic
1987). While making direct recruitment against
posts which were advertised in 1985, it was
given out to the present appellants that their
absorption and seniority was subject, inter alia,
to the finalisation of the selection to the post of
First Fireman which was in progress. The
appellants, as stated earlier, were selected in
1988 and were put on two years’ training as
Apprentices whereafter they were absorbed by
order dated 18-7-1990 and were issued separate
and individual appointment letters in which, it
was clearly mentioned that their seniority was
16
subject to the finalisation of the selection for
promotion to the post of First Fireman which
was in progress. The appellants, in this
situation, cannot claim seniority over
Respondents 4 to 143 who had already been
appointed to the posts of First Firemen on ad
hoc basis and were after due selection
regularised on those posts.”
Apart from the fact that in T. Vijayan (supra), the effect of Rule
302 of the Rules had not been taken into consideration, the question as to
whether the seniority of the employees could have been reckoned only on
the basis of their date of initial appointment irrespective of the fact as to
whether in doing so the mandatory procedure laid down in the rules have
been followed or not, had not been taken into consideration. It proceeded
on the premise that as IREM permits ad hoc promotion, the date on and
from which the employee concerned was promoted on an ad hoc basis
would be relevant. It was decided keeping in view the peculiar fact
situation obtaining therein. Respondents therein were promoted on ad
hoc basis in a situation where regular promotion was not immediately
possible. There was a huge time gap. A question as to whether the
respondents therein were entitled to the benefit of ad hoc service rendered
by them for the purpose of reckoning their seniority fell for consideration
in the aforementioned situation. The direct recruits were appointed on
17
probation in 1988 and were put to two years’ training as Apprentice
whereafter only they were absorbed in the service of the Railways with
effect from 18.7.1990 subject to the finalization of the selection for
promotion. It is in the aforementioned situation, the question of inter se
seniority between the direct recruits and the promotees came up for
consideration.
Even otherwise, the decision in T. Vijayan (supra) has no
application to the fact of the present case. We have noticed hereinbefore
that the question in regard to inter se seniority amongst the promotees on
the one hand and the direct recruits on the other, are governed by Rule
302 of the Rules. It is now a well settled principle of law and in respect
whereof there is absolutely no quarrel that in view of the decision of this
Court in Direct Recruit Class-II Engineering Officers’ Association & ors.
vs. State of Maharashtra & ors.[(1990) 2 SCC 715] an employee
appointed to a post according to rule would be entitled to get his seniority
reckoned from the date of his appointment and not from the date of his
confirmation. It is, however, also well settled that where the initial
appointment is only ad hoc, not according to rules and made a stop-gap
18
arrangement, the period of officiation in such post cannot be taken into
account for considering the seniority.
Rule 216 of IREM in no uncertain terms provides that such an
appointment should be made for short duration vacancy only. Such
orders of promotion are required to be made only upon obtaining the
approval of Chief Personnel Officer. In the instant case, such an approval
was not obtained. Approval was obtained only at the Divisional level.
Even while extending the period of three months, the circular letter of the
Board dated 23.2.1974 laying down for sanction of the General Manager,
therefore, had not been complied with.
When an ad hoc appointment is made, the same must be done in
terms of the rules for all purposes. If the mandatory provisions of the
rules had not been complied with, in terms of Direct Recruit (supra), the
period shall not be taken into consideration for the purpose of reckoning
seniority. Furthermore, it is one thing to say that an appointment is made
on an ad hoc basis but it is another thing to say that inter se seniority
would be determined on the basis laid down in another rule.
19
This aspect of the matter has been considered by this Court in
Swapan Kumar Pal & ors. vs. Samitabhar Chakraborty& ors. [(2001) 5
SCC 581], wherein this Court keeping in view the provisions of IREM
held as under:
“…The next case relied upon by Mr Rao is the
case of Suraj Parkash Gupta v. State of J&K . In
the aforesaid case, on consideration of the
relevant rules governing the service conditions
of the Assistant Engineers of the Jammu and
Kashmir Government, the Court had observed
that ad hoc or temporary service of a person,
appointed by transfer as an Assistant Engineer
or by promotion as an Assistant Executive
Engineer can be regularised through the Public
Service Commission and Departmental
Promotion Committee from an anterior date in a
clear vacancy in his quota, if he is eligible and
found suitable for such transfer or promotion, as
the case may be, and his seniority will count
from that date. The aforesaid conclusion was
drawn because of the provisions of Rule 23 and
Rule 15 of the Jammu and Kashmir Rules but in
the case in hand, there is no provision, which
has been brought to our notice, which enables
the appointing authority to regularise a
promotion from an anterior date, though the
suitability test is held at a later date. In the
absence of any such provision in the Rules in
question, the ratio of the aforesaid decision, on
interpretation of the relevant rules of the Jammu
and Kashmir Engineering Rules will have no
application. In the aforesaid premises, we have
no hesitation in coming to the conclusion that
merely because a suitability test had not been
held at regular intervals an employee promoted
on ad hoc basis can claim that it is a regular
promotion after due process of selection. As
such the seniority of promotees in the cadre of
20
Senior Clerk can be counted only from the date
of regular promotion, after due process of
selection.”
In State of W.B. & ors. vs. Aghore Nath Dey & ors. (1993) 3 SCC
371, this Court held:-
“20. The Constitution bench having dealt with
Narendra Chadha in this manner, to indicate the
above principle, that decision can not be
construed to apply to cases where the initial
appointment was not according to rules.
21. We shall now deal with conclusions (A)
and (B) of the Constitution bench in the
Maharashtra Engineers' case quoted above.
22. There can be no doubt that these two
conclusions have to be read harmoniously, and
conclusion (B) cannot cover cases which are
expressly excluded by conclusion (A). We may,
therefore, first refer to conclusion (A). It is clear
from conclusion (A) that to enable seniority to
be counted from the date of initial appointment
and not according to the date of confirmation,
the incumbent of the post has to be initially
appointed 'according to rules'. The corollary set
out in conclusion (A), then is, that 'where the
initial appointment is only ad hoc and not
according to rules and made as a stop-gap
arrangement, the officiation in such posts
cannot be taken into account for considering the
seniority.' Thus, the corollary in conclusion (A)
expressly excludes the category of cases where
the initial appointment is only ad hoc and not
according to rules, being made only as a stop-
21
gap arrangement. The case of the writ
petitioners squarely falls within this corollary in
conclusion (A), which says that the officiation
in such posts cannot be taken into account for
counting the seniority.
23. This being the obvious inference from
conclusion (A), the question is whether the
present case can also fall within conclusion (B)
which deals with cases in which period of
officiating service will be counted for seniority.
We have no doubt that conclusion (B) can not
include, within its ambit, those cases which are
expressly covered by the corollary in conclusion
(A), since the two conclusions cannot be read in
conflict with each other.
24. The question, therefore, is of the category
which would be covered by conclusion (B)
excluding therefrom the cases covered by the
corollary in conclusion (A).
25. In our opinion, the conclusion (B) was
added to cover a different kind of situation,
wherein the appointments are otherwise regular,
except for the deficiency of certain procedural
requirements laid down by the rules. This is
clear from the opening words of the conclusion
(B), namely, 'if the initial appointment is not
made by following the procedure laid down by
the rules' and the later expression 'till the
regularisation of his service in accordance with
the rules'. We read conclusion (B), and it must
be so read to reconcile with conclusion (A), to
cover the cases where the initial appointment is
made against an existing vacancy, not limited to
a fixed period of time or purpose by the
appointment order itself, and is made subject to
22
the deficiency in the procedural requirements
prescribed by the rules for adjudging suitability
of the appointee for the post being cured at the
time of regularisation, the appointee being
eligible and qualified in every manner for a
regular appointment on the date of initial
appointment in such cases.”
{See also M.K. Shanmugam & anr. vs. Union of India & ors.
[(2000) 4 SCC 476}
This Court in R.K. Mobisana Singh vs. Kh. Temba Singh & ors.
[(2008) 1 SCC 747] following the principles laid down by this Court in
Direct Recruit (supra) as also Swapan Kumar Pal (supra) held as under:
“39. Applying the principles of the
aforementioned decisions to the facts of this
case, we are of the opinion that although in
terms of the office memorandum, no
retrospective effect could be given to the order
of regularisation passed in favour of the
promotees, as in absence of any seniority rules
operating in the field, the State was required to
evolve a policy. It for its own reason did not do
so.
40. The office memorandum of 1959 was
applicable in a case of this nature. In some of
the cases, promotion might have been given
without following the rules. When promotion is
given only in the exigency of situation without
following the Rules, the period cannot be
counted towards seniority.
23
41. If they had been given regularisation with
retrospective effect, the same by itself may not
be a ground to apply the said order ipso facto
for determining the inter se seniority. Seniority
although is not a fundamental right but a civil
right. Such a right of the direct recruits could
not have been taken away without affording an
opportunity of hearing to them.
42. It was obligatory on the part of the
official respondents to take into consideration
that the retrospective regularization could be
granted only when there exists such a rule. If
rules were not followed at the time of grant of
promotion, question of grant of regularization
with retrospective effect would not arise.
Retrospective regularization whether in terms of
the directions of the High Court or otherwise,
thus, although could confer other service
benefits to the officer concerned, but the same
cannot be held to be of any assistance for
reckoning seniority with retrospective effect.”
15. We, therefore, are of the opinion that the Tribunal and
consequently the High Court committed a serious error insofar it failed to
take into consideration the binding authorities of this court.
While saying so, we are, however, not oblivious of the fact that in a
short judgment in Raj Kishore Vishwakarma & ors. vs. Union of India &
ors. [(1997) 11 SCC 619], this Court held:
24
“4. Mr. Vikram Mahajan, learned counsel
appearing for the Railways, has very fairly
stated that the appellants were appointed in
relaxation of the Rules in exercise of the powers
under Rule 113. He has taken us through the
counter filed before the Tribunal and also before
this Court wherein it is clearly stated that the
appellants were appointed in relaxation of the
Rules. We are of the view that the appellants
having been appointed in relaxation of the Rules
their appointments have to be treated under the
Rules. When the appellants were appointed
under the Rules even the ad hoc period, which is
continuous, has to be taken into consideration
for the purpose of fixation of seniority in the
cadre of Typists.”
16. However, the factual matrix obtaining in the said case was
absolutely different. In that case power of relaxation was invoked.
Herein we are not concerned with any power of relaxation.
In any view of the matter, it is now well settled that even power of
relaxation even specifically provided in the appointing authority himself
being created a statute cannot be exercised in an arbitrary and cavalier
fashion.
In Kendriya Vidyalaya Sangathan and Ors. v. Sajal Kumar Roy and
Ors. [(2006) 8 SCC 671] , this Court held:
25
“11...The appointing authorities are required to
apply their mind while exercising their
discretionary jurisdiction to relax the age limits.
Discretion of the authorities is required to be
exercised only for deserving candidates and
upon recommendations of the Appointing
Committee/ Selection Committee. The
requirements to comply with the rules, it is trite,
were required to be complied with fairly and
reasonably. They were bound by the rules. The
discretionary jurisdiction could be exercised for
relaxation of age provided for in the rules and
within the four corners thereof. As Respondents
do not come within the purview of the exception
contained in Article 45 of the Education Code,
in our opinion, the Tribunal and consequently,
the High Court committed a manifest error in
issuing the aforementioned directions.”
17. For the reasons aforementioned, the impugned judgment cannot be
sustained, it is set aside accordingly. The appeal is allowed. However, in
the facts and circumstances of the case, there shall be no order as to costs.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Dr. Mukundakam Sharma]
New Delhi;
FEBRUARY 12, 2009