SUPREME COURT OF INDIA

Before:- Sujata V. Manohar and G.B. Pattanaik, JJ.

Civil Appeal No. 4026 of 1993. D/d. 27.8.1998.

Union of India and others - Appellants

Versus

Shivbachan Rai - Respondent

Constitution of India, Article 309 proviso 14 and 16 - Appointment - Eligibility - Age limit - Exemptions/Concessions/Relaxations - Introduction of limit on extent of relaxation in age limit for direct recruits, held, not unreasonable or arbitrary - It is a policy matter - Fact that the earlier no-limit situation was arbitrary - Rules of 1985, framed for regulations recruitment to post of Director and Asstt. Director (Group A posts in Central Poultry Breeding Farms, under Ministry of Agriculture), prescribed extent of relaxation in age limit for direct recruits up to 5 years - Tribunal held said prescription to be arbitrary and violative of Article 14 of the Constitution - Tribunal's order was set aside holding prescribing of age limit or extent of relaxation to be given for a particular post are essentially matters of policy and framing of rules by Govt. in respect of the same could not be termed as arbitrary or unreasonable - Respondent's appointment being subject to the outcome of unreasonable - Respondent's appointment being subject of the outcome of the appeal interfered with - Held, prescribing the extent of relaxation in age limit for a given post, not violative of Article 14, Constitution of India.

[Paras 6 and 7]

Cases Referred :-

Council of Scientific and Industrial Research v. K.G.S. Bhatt, (1989) 4 SCC 635 .

Rekha Chaturvedi v. University of Rajasthan, 1993 Supp (3) SCC 168 .

ORDER

Sujata V. Manohar, J. - At the material time the respondent was holding the post of Hatchery Officer in the Central Poultry Breeding Farms under the Ministry of Agriculture.

2. On 15-2-1990 the Union Public Service Commission advertised for direct recruitment to the post of Assistant Director in the Central Poultry Breeding Farms under the Ministry of Agriculture. Under the advertisement the prescribed age for the candidates was not exceeding 35 years as on 31-5-1990, relaxing up to 5 years for Government servants. This condition relating to age of the candidates was in accordance with the Rules framed under the proviso to Article 309 of the Constitution on 29-3-1985 regulating the method of recruitment to the post of Director and Assistant Director (Group A posts in the Central Poultry Breeding Farms, under the Ministry of Agriculture). The said Rules of 1985, inter alia, prescribe the age limit for direct recruits to the post of Assistant Director. The Rules state: under column 6 which pertains to age limits for direct recruits, "not exceeding 35 years (relaxable for Government servants up to 5 years in accordance with the instructions and orders issued by the Central Government)".

3. The respondent was overage even after taking into consideration the relaxation of 5 years granted under the Rules. Therefore, he was not called for an interview. Thereupon, the respondent filed an application before the Central Administrative Tribunal, New Delhi claiming that the earlier recruitment rules prescribed under the notification of 16-11-1976 were still in force, since they were not expressly superseded by the notification prescribing new rules dated 29-3-1985. Under the earlier rules, while the age of recruitment for the post of Assistant Director by direct recruitment was 35 years, it was relaxable in the case of Government servants. The rules did not prescribe any limit up to which such relaxation could be granted. The Tribunal, by the impugned order has accepted the plea of the respondent, holding that the maximum period prescribed for relaxation, namely, 5 years in the Rules of 1985 is arbitrary and violative of Article 14 of the Constitution.

4. During the pendency of his application before the Central Administrative Tribunal and by virtue of interim orders passed therein the respondent was called for an interview for the post of Assistant Director on 8-2-1991 by the Union Public Service Commission. The letter calling the respondent for interview clearly states as follows:

"This call is being issued in compliance with the direction of the Hon'ble Central Administrative Tribunal, Principle Bench, New Delhi, dated 4-2-1991, and is without prejudice to the Commission's stand with respect to your candidature for the post in question."

5. Thereafter the respondent was selected by the Union Public Service Commission. During the pendency of the present appeal the respondent, on 7-3-1994 had been appointed as Assistant Director as a direct recruit with effect from 24-1-1994 until further orders. The appointment notification further states:

"This appointment is provisional and subject to the outcome of SLP (C) No. 3446 of 1993 pending in the Supreme Court of India."

6. The only question that we are required to consider is whether the Rules framed under the proviso to Article 309 of the Constitution and dated 29-3-1985 whereby age relaxation up to 5 years is permitted in the case of Government servants can be considered as arbitrary or unreasonable. Prescribing of any age limit for a given post, as also deciding the extent to which any relaxation can be given if an age limit is prescribed, are essentially matters of policy. It is, therefore, open to the Government while framing rules under the proviso to Article 309 of the Constitution to prescribe such age limits or to prescribe the extent to which any relaxation can be given. Prescription of such limit or the extent of relaxation to be given, cannot be termed as arbitrary or unreasonable. The only basis on which the respondent moved the Central Administrative Tribunal was the earlier Rules of 1976 under which, though an age limit was prescribed, a limit had not been placed on the extent of relaxation which could be granted. If at all any charge of arbitrariness can be levied in such cases, not prescribing any basis for granting relaxation when no limit is placed on the extent of relaxation, might lead to arbitrariness in the exercise of power of relaxation. In any case, the Rules of 1976 have been replaced by the Rules of 1985 which govern direct recruitment to the post of Assistant Director in the present case. One has, therefore, to look to the Rules of 1985 in order to decide the eligibility of the respondent for the post of Assistant Director. We, therefore, do not agree with the finding of the Tribunal that the Rules of 1985 insofar as they prescribe the extent of relaxation of age limit, are arbitrary or unreasonable. This is also not a case where promotional avenues are being closed partially or fully. The post in question was to be filled by direct recruitment and not by promotion. Therefore, there could be no grievance on that score by the respondent.

7. Learned counsel for the respondent has urged that the respondent has been appointed as Assistant Director in 1994. Prior thereto he had performed the duties of Assistant Director since 1989. He has been subsequently promoted as Superintendent, Random Sample Poultry Performance Testing Centre. Therefore, his appointment should not be disturbed. While sympathising with the position of the respondent we cannot make an exception in his case especially when his letter of appointment as Assistant Director and even his being called for an interview by the Union Public Service Commission for selection to the post of Assistant Director have clearly stated that the appointment is subject to the pending application and/or appeal before this Court. The respondent, therefore, was throughout fully aware that his right to the post of Assistant Director was dependent upon the outcome of this appeal. We were shown two judgments of this Court. One in the case of Council of Scientific and Industrial Research v. K.G.S. Bhatt, (1989) 4 SCC 635 and the other in the case of Rekha Chaturvedi v. University of Rajasthan, 1993 Supp (3) SCC 168 . Neither of these two cases is comparable to the case before us. In the former case this Court did not interfere with the promotion granted because the Court felt that injustice had been caused to the respondent who had stagnated for 20 years. The promotion granted to him, though erroneous, was, therefore, not interfered with. In the present case the appointment given is expressly subject to the outcome of the appeal. In the second case, the circumstances are totally different and we fail to see how it can be applied to the facts of the present case.

8. In the premises the impugned order of the Tribunal is set aside and the application filed by the respondent before the Tribunal is dismissed.

9. The appeal is allowed accordingly. There will, however, be no order as to costs.

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