Full Judgment Text
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CASE NO.:
Appeal (civil) 4569 of 2006
PETITIONER:
Kendriya Vidyalaya Sangathan & Ors
RESPONDENT:
Sajal Kumar Roy & Ors
DATE OF JUDGMENT: 19/10/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No.3657 of 2005)
S.B. Sinha, J.
Leave granted.
Appellant before us is a society registered under the Societies
Registration Act. It runs a chain of schools known as Kendriya Vidyalayas
all over the country. An advertisement was issued in respect of eight
vacancies which arose in the cadre of Lower Division Clerk (LDC) in the
Silchar region. Respondent applied for recruitment to the said post pursuant
to or in furtherance of the said advertisement. Written and typing tests were
held. As per Kendriya Vidyalaya Sangathan (Appointment, Promotion,
Seniority) Rules, 1971 (for short, ’the Rules), the age limit prescribed
therefor was 18-25 years as on 30.6.1994, which was, however, relaxable.
Respondents are said to be near relatives of the employees of the Kendriya
Vidyalaya Sangathan Regional Office, Silchar. The candidates who were
over-aged were also permitted to appear at the examination in contravention
of the Rules. Certain irregularities were also committed in the matter of
conducting typing test. Higher authorities of the school were moved for
cancellation of the recruitment of the LDCs.
An Original Application was filed by Respondents before the Central
Administrative Tribunal, Gauhati Bench, praying for a direction upon
Appellants to relax the age of the candidates. By an order dated 15.3.2001,
the Tribunal directed Appellants to do so. Aggrieved by and dissatisfied
therewith, a writ petition was filed by Appellants before the Gauhati High
Court. By reason of the impugned judgment, the High Court directed :
"In the facts and circumstances aforesaid, we hold
that direction, as issued by the Tribunal, could not have
been given for appointment of the private respondents,
until and unless the Appointing Authority exercises the
power of relaxation of age limit. In view of the above,
we direct the Appointing Authority to consider the case
of respondents herein, for relaxation of the age limit
within a period of 3 (three) months from the placement of
a certified copy of this order before the Appointing
Authority, and on relaxation of the age limit, include
their names in the select list and thereafter issue
appointment orders to them, in accordance with law on
the basis of the merit of the candidate."
It is not in dispute before us that Respondents were over-aged on the
relevant date. The particulars of Respondents, who had filed applications
pursuant to the said advertisement, are as under :
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Sl.
No.
Name
Date of
Birth
Category
1.
Jagadish Kr. Projapati
02-05-1968
OBC
2.
Sajal Kr. Roy
30-09-1968
GEN
3.
Dhruba Jyoti Chakraborty
10-11-1968
GEN
4.
Kalyan Jyoti Chakraborty
11-11-1968
GEN
The short question which arises for consideration before us is :
Whether, in terms of the extant Rules, age of the general candidates was
relaxable?
Mr. S. Rajappa, learned counsel appearing on behalf of Appellants
would submit that the High Court committed an error in directing
consideration of relaxation of age bar in respect of Respondents. The
learned counsel would further submit that the regional office committed
illegalities in allowing Respondents to appear at the written and typing
examination, although they were admittedly over-aged and, thus, were not
eligible for appointment.
Mr. Amitesh Kumar, learned counsel appearing on behalf of the
Respondents, on the other hand, would support the judgment.
The Tribunal, although, noticed that Respondents crossed the age bar,
but opined that keeping in view the fact that the relaxation of age was
specifically referred to in the advertisement, they were otherwise eligible
therefor. The Tribunal in support of its finding referred to a purported letter
dated 29.3.1995 issued by Assistant Commissioner, Administration, KVS to
Assistant Commissioner, KVS Silchar, which is in the following terms :
"I am to invite a reference to your office letter
No.F.2-16/94-KVS (SR) dated 15.03.1995 and to state
that the process of interview/selection may kindly be
completed as per the advertisement dated 28th May \026 3rd
June 1994 and subsequent clarification thereon published
in the Employment News dated 21-27 January 1995.
After completion of the selection if any candidate, with
overage selected by virtue of the concession at para 8(b)
& (c) of the advertisement, case may be taken up for
relaxation of upper age prior to issue of offer of
appointment....."
In the aforementioned situation, it was held :
"The action of the respondents in not issuing
appointment letters to the applicants appears to be
arbitrary. The applicants on their merits qualified for
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appointment. The age relaxation is being allowed and
can be relaxed by the organization. As irregularity in the
selection process has not been established the applicants
request for issue of appointment letters is justified. The
respondents are directed to reconsider the applicants case
for appointment. This process should be completed
within a period of 3 months from the date of receipt copy
of this order."
It is not in dispute that Appellants have framed rules for recruitment
known as Education Code for Kendriya Vidyalayas. Article 45 of the said
Code provides for age limit in the following terms :
"45. Age Limits
The following upper age limits have been prescribed for
recruitment to the posts :
Assistant Commissioner : 30-40 years
Principal : 35-50 years
PGT : 40 years
TGT : 35 years
Primary Teacher : 30 years
Music Teacher : 30 years
Other teachers } : 35 years
Including Librarian }
LDC and } : 25 years
UDC }
Group D } : 18-25 years
Lab Attendants }
The upper age limits are relaxable in the case of
special categories as follows :
(i) Scheduled Caste/Tribe - 5 years
(ii)Retrenched Central Govt.} Period of their
employees including } service in Civil/
defence personnel. } Military Depart-
ments increased
by 3 years.
The appointing authority can, in his discretion,
relax these age-limits in deserving cases on the
recommendation of the Appointments Committee/
Selection Committee."
Respondents are not members of the Scheduled Caste or Scheduled
Tribe. Age limit is prescribed for appointment to the general category of
employees. The upper age limit for appointment to the post of LDC is 25
years. The advertisement also says so. The Rules, as noticed hereinbefore,
are in two parts. The first part talks about the age limit. The second part
provides for relaxation. Such relaxation can be granted for the purpose
specified, i.e., in favour of those who answered the descriptions stated
therein. Relaxation of age limit even in relation to Scheduled Castes and
Scheduled Tribes candidates or the Retrenched Central Government
employees, including the defence personnel, is, however, not automatic.
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
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Education Code, in our opinion, the Tribunal and consequently, the High
Court committed a manifest error in issuing the aforementioned directions.
In Food Corporation of India & Ors. vs. Bhanu Lodh & Ors.
[(2005) 3 SCC 618], this Court stated the law thus :
"....While the maximum age prescribed under the
Recruitment Rules is 35/40 years for the posts concerned,
departmental candidates in the age of 52-53 years were
proposed to be appointed. Even assuming that there is a
power of relaxation under the Regulations, we think that
the power of relaxation cannot be exercised in such a
manner that it completely distorts the Regulations. The
power of relaxation is intended to be used in marginal
cases where exceptionally qualified candidates are
available. We do not think that they are intended as an
"open sesame" for all and sundry. The wholesale go-by
given to the Regulations, and the manner in which the
recruitment process was being done, was very much
reviewable as a policy directive, in exercise of the power
of the Central Government under Section 6(2) of the
Act."
Yet again in Dr. Ami Lal Bhat vs. State of Rajasthan & Ors.
[(1997) 6 SCC 614], the law is stated in the following terms :
"....In other words, what is contended is that if on the
date when the vacancy occurred, the candidates were
within the maximum age prescribed by reference to the
cut-off date, then if the advertisement is delayed, their
age should be considered with reference to the cut-off
date of 1st January following the date of occurrence of
vacancy. For example, if the vacancy has occurred on 1st
of April of a given year, and the applicant would be
within the maximum age on the 1st of January of the
following year, then such a candidate will be considered
as eligible even if the advertisement is issued not in April
of that year but say February of the following year. All
the candidates will get age relaxation of one year.
In our view this kind of an interpretation cannot be
given to a rule for relaxation of age. The power of
relaxation is required to be exercised in public interest in
a given case; as for example, if other suitable candidates
are not available for the post, and the only candidate who
is suitable has crossed the maximum age-limit; or to
mitigate hardship in a given case. Such a relaxation in
special circumstances of a given case is to be exercised
by the administration after referring that case to the
Rajasthan Public Service Commission. There cannot be
any wholesale relaxation because the advertisement is
delayed or because the vacancy occurred earlier
especially when there is no allegation of any mala fides
in connection with any delay in issuing an advertisement.
This kind of power of wholesale relaxation would make
for total uncertainty in determining the maximum of age
of a candidate. It might be unfair to a large number of
candidates who might be similarly situated, but who may
not apply, thinking that they are age-barred. We fail to
see how the power of relaxation can be exercised in the
manner contended."
For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. In the facts
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and circumstances of the case, there shall be no order as to costs.