Krishan Singh vs Uoi & Anr.
2010 Latest Caselaw 4972 Del

1
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +    W.P.(C)No.3680/2006

                               Date of Decision : 28th October, 2010
%

      KRISHAN SINGH                              ..... Petitioner
                           Through : Mr. D.K. Sharma, Adv.

                      versus

      UOI & ANR.                              ..... Respondents
                           Through : Mr. B.V. Niren, CGSC.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                   YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                  YES

3.      Whether the judgment should be                          YES
        reported in the Digest?

GITA MITTAL, J. (Oral)

1. This writ petition has been filed by the petitioner who was

a permanent Combatant Member of the Indian Air Force and

was in its service in the rank of Corporal at the time of filing of

the writ petition having rendered more than eleven years of

satisfactory service to the force by that date.

2. The respondents had published an Examination Notice

No.10/2004 dated 8th May, 2004 in the Employment News

dated 8th - 14th May, 2004 for appointment to the post of

Assistant Commandant (Group „A‟) in the Central Police Forces

(„CPF‟ hereafter). The CPF includes Border Security Force,

Central Reserve Police Force, Indo-Tibtan Border Police; Central

Industrial Security Force and the Special Services Bureau.

There is no dispute that the petitioner was possessed with all

the required qualifications as were prescribed in this

examination notice inviting applications from eligible

candidates.

3. The entire dispute between the parties hinges on the

petitioner‟s contention that he was entitled to the age

relaxation which was permissible under the advertisement

issued by the respondents which would govern the

appointments whereas the respondents have taken a stand

that the petitioner was not so entitled as he was not in Civilian

Government Service.

4. In order to facilitate appreciation of the said issue, the

applicable condition as notified by the respondents in the

Examination Notice No.10/2004 deserves to be usefully

extracted and reads as follows:-

"(iii) Age Limits :

(a) A candidate must have attained the age of 20 years and must not have attained the age of 25 years on 1st August, 2004, i.e. he/she must have been born not earlier than 2nd August, 1979 and not later than 1st August, 1984.

(b) The upper age limit prescribed above will be relaxable.

(i) upto a maximum of five years if a candidate belongs to a Scheduled Caste or a Scheduled Tribe.

(ii) upto a maximum of three years in the case of candidates belonging to Other Backward Classes who are eligible to avail of reservation applicable to such candidates.

(iii) upto a maximum of five years for Government Servants. Ex-servicemen will also

be eligible for this relaxation. However the total relaxation claimed on account of Government Service will be limited to 5 years.

(iv) upto a maximum of five years if a candidate had ordinarily been domiciled in the State of Jammu & Kashmir during the period from 1st January, 1980 to the 31st day of December, 1989."

5. The petitioner is stated to have been born on 8th January,

1975. He also submits that he had submitted the application in

the prescribed format through proper channel which was

through his employer, the Indian Air Force. The application of

the petitioner was premised on his being entitled to the benefit

of age relaxation of five years as provided to government

servants as per the notice of the respondents.

6. The petitioner appeared in the written examination on the

3rd of October, 2004 conducted by the Union Public Service

Commission-respondent No.2 before us, and qualified the

same. He thereafter successfully undertook the physical

efficiency test which was followed by a medical examination

conducted on 17th June, 2005 by the Central Police Forces on

behalf of the Ministry of Home Affairs under the overall

coordination of the Indo-Tibtan Border Police which was the

nodal authority nominated by the concerned ministry.

7. Respondent No.2 thereafter informed the petitioner by a

communication dated 31st August, 2005 that he was required

to personally appear before the Commission on the 2nd of

September, 2005 for the purposes of undertaking the

personality test/interview. It is noteworthy that in the letter

dated 31st August, 2005, the respondents for the first time

indicated that the petitioner‟s candidature was provisional and

was subject to the condition that he was entitled to age

relaxation as "Central Government Servants as defined in

CCS(CCA) Rules, 1965".

8. It has been contended by the petitioner before us that he

had undertaken the personality test/interview. However, the

result was not disclosed to him. The petitioner was informed

by respondent No.2 vide letter dated 19th October, 2005 to the

effect that since he was a member of the defence force, he was

not eligible for age relaxation. The respondent No.2, therefore,

was of the view that the petitioner was over age for

appointment to the Central Police Forces (ACs) Examination -

2004 and had decided to cancel the petitioner‟s candidature.

9. The petitioner had protested against the said decision by

his communication dated 23rd November, 2005. The

respondents had however, in the letter dated 23rd December,

2005 reiterated the above stand.

10. The petitioner had thereafter made an inquiry by

communication dated 27th December, 2005 under the Right to

Information Act, 2005 of his marks and rank secured by him in

the examination process. This information was also denied to

the petitioner by a letter dated 6th January, 2006 on the ground

that the information could not be furnished as the petitioner‟s

candidature stood cancelled and he ceased to be a candidate

for the said examination.

11. The present writ petition has been filed in this

background by the petitioner assailing the order dated 19th

October, 2005 cancelling his candidature. He has, inter alia,

further sought issuance of a writ of mandamus directing the

respondents to grant age relaxation.

12. The respondents have strongly defended their action.

Mr.B.V. Niren, learned counsel appearing for the respondents

has reiterated the stand of the respondents taken in the

impugned orders and has placed reliance on the provisions of

the Central Civil Services (Classification, Control and Appeal),

Rules, 1965 [„CCS (CCA) Rules, 1965‟ hereafter] in support of

contention that Air Force personnel are not holding civil posts

and consequently are disentitled to the age relaxation

admissible to central government civilian employees. Reliance

in this regard has been placed on the definition of „Government

Servant‟ in Sub Rule 2(h) and „Service‟ in Sub Rule 2(m) of

CCS(CCA) Rules, 1965 which reads as follows:-

"2(h) „Government servant‟ means a person who -

(i) is a member of a Service or holds a civil post under the Union, and includes any such person on foreign service or whose services are temporarily placed at the disposal of a State Government, or a local or other authority;

ii) is a member of a Service or holds a civil post under a State Government and whose services are temporarily placed at the disposal of the Central Government;

iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the Central Government;

2(m) "Service" means a civil service of the Union."

13. Mr. Niren, learned counsel has also placed reliance on

Rule 3 of the CCS(CCA) Rules, 1965 which reads as follows:-

"3. Application

(1) These rules shall apply to every Government servant including every civilian Government servant in the Defence Services, but shall not apply to -

(a) any railway servant, as defined in Rule 102 of Volume I of the Indian Railways Establishment Code,

(b) any member of the All India Services,

(c) any person in casual employment,

(d) any person subject to discharge from service on less than one month's notice,

(e) any person for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions.

(2) Notwithstanding anything contained in sub- rule (1), the President may by order exclude any class of Government servants from the operation of all or any of these rules.

(3) Notwithstanding anything contained in sub- rule (1), or the Indian Railways Establishment Code, these rules shall apply to every Government servant temporarily transferred to a Service or post coming within Exception (a) or (e) in sub-rule (1), to whom, but for such transfer, these rules would apply.

(3-A) Notwithstanding anything contained in these rules, where any civilian Government servant in the Defence Services is temporarily made subject to the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), or the

Air Force Act, 1950 (45 of 1950), these rules shall continue to apply to such civilian Government servant in the Defence Services and, for the purpose of discipline, he shall be dealt with under these rules unless the appropriate authority, for reasons to be recorded in writing, is of the opinion that sterner action is called for and directs that he be dealt with under the Act he is subject to.

(4) If any doubt arises, -

(a) whether these rules or any of them apply to any person, or

(b) whether any person to whom these rules apply belongs a particular Service, the matter shall be referred to the President who shall decide the same."

14. It is contended that in this background, the decision and

action of the respondents cannot be faulted. The submission is

that aforenoticed Rule 3 clearly stipulates that the rules shall

apply to civil government servants including every civilian

government servant in the defence services but shall not apply

to the serving defence personnel.

15. We find that the submissions made on behalf of the

respondents have already been considered and were doubted

when this court recorded the following order on the 23rd of

April, 2007 which reads as follows:-

"For purposes of recruitment to the Central Police Forces, the respondents have provided age relaxation to the extent of 5 years for candidates who are government servants and also for ex-servicemen. In-service candidates like the petitioner who is serving in the Indian Air Force are also eligible for appointment in terms of a clarification issued by the government but such in-service candidates are not entitled to any age relaxation. There is, thus, a classification made by the government for recruitment in as much as there are candidates who are entitled to

age relaxation just as there are others who are not so entitled to that concession. The counter affidavit filed by the respondents does not indicate the basis on which the classification has been made or the objectives sought to be achieved by the same. Ms. Monika Garg, counsel appearing for the respondents seeks two weeks time to file an additional affidavit explaining the reasons for the classification and object underlying the same. She shall do the needful within two weeks with a copy to the counsel opposite who shall file a rejoinder within one week thereafter.

Post again for admission on 21st May, 2007."

16. Pursuant to the said directions, it appears that the

respondents had filed an affidavit dated 7th January, 2008 by an

officer serving in the office of Director General of the Indo-

Tibetan Border Police, which was the nodal agency in the

appointment process. Reliance has been placed on the

stipulated condition which informed the petitioner that his

candidature was being treated as "purely provisional". The

affidavit has further submitted that in view of the issue raised

by the petitioner and three other candidates, a clarification

dated 8th September, 2005 had been received from the Ministry

of Home Affairs stating that age relaxation for competing in

direct recruit post is admissible only to civilian central

government employees subject to fulfillment of the other

relevant conditions and that members of the other defence

forces are not eligible for such age relaxation.

17. We find that in the affidavit dated 5 th January, 2008, the

respondents have stated that the petitioner and three other

candidates who were similarly placed were also interviewed.

However, it was held that these persons were not entitled to

age relaxation and their provisional candidature stood

cancelled.

18. It is obvious from the above narration that the

respondents have failed to comply with the directions made on

23rd April, 2007. This court also so held in the order dated 11th

July, 2008 observing that the purport of the earlier order was

clearly to seek a justification from the respondents with regard

to the rationale behind excluding the serving personnel from

age relaxation while giving the same to civilian government

servants and retired defence personnel. The respondents were

given an opportunity to file another additional affidavit dealing

with this issue and also to keep available relevant records.

19. Mr. B.V. Niren, learned counsel submits that pursuant to

the said directions, additional affidavit dated 19th September.

2008 was filed. In this affidavit, a completely untenable stand

was taken to the effect that the Government had "not

categorically advertised that serving defence personnel are not

entitled for any age relaxation". It was further stated that this

was a policy decision of the Government and that the petitioner

was not entitled to age relaxation by GIDP & AR OM

No.4/4/74/Estt(D) dated 9th April, 1981. The stand taken in the

earlier communications was reiterated and reliance was also

placed on a clarification dated 18th December, 2007 obtained

from the Department of Personnel and Training of the Ministry

of Personnel, Public Grievances and Pension.

20. It is apparent from the above that the respondents had

failed to comply with the specific directions made by the court

on 23rd April, 2007 and 11th July, 2008. The stand taken by the

respondents also completely fails to consider the stipulation in

the advertisement with regard to the age relaxation.

21. We may also refer to the Office Memorandum bearing

G.I.,D.P.&A.R.,O.M. No.4/4/74/Estt.(D) dated 9th April, 1981

relevant extract whereof reads as follows:-

"6. Upper age relaxation admissible to Government employees for direct recruitment to Groups „A‟ and „B‟ posts.- 1. The following decisions have been taken in consultation with the Union Public Services Commission:-

(ii) Government servants may be allowed, on a uniform basis, relaxation of a maximum of 5 years in the upper age-limit for recruitment to other Group „A‟ or Group „B‟ posts by advertisements through the Commission. The age relaxation will be admissible to such of the Government servants as are working in posts which are in the same line or allied cadres and where a relationship could be established that the service already rendered in a particular post will be useful for the efficient discharge of the duties of the post(s) recruitment to which has been advertised. Decision in this regard will rest with the Commission."

22. The above extract shows that relaxation of a maximum

five years in the upper age limit for recruitment to Group „A‟

post by advertisement from the respondent No.2 was

admissible to all government servants on a uniform basis

without their categorization into civilian or defence personnel

employees.

23. We may notice that the view dated 18th December, 2007

taken by the Department of Personnel and Training of the

Ministry of Personnel, Public Grievances and Pension has

restricted the consideration of the eligibility of the age

relaxation only to Central Government Civilian Employees

without taking into consideration the stipulation contained in

the Examination Notice No.10/2004. It also does not take into

consideration the nature of the force or the duties attached to

the post to which appointment was to be effected.

24. The respondents have also overlooked the specific

relaxation in favour of Ex-servicemen.

It is also obvious that this clarification has been obtained

by the respondents after having taken a stand in the writ

petition and during its pendency.

25. Further affidavits dated 6th January, 2010 and 6th March,

2010 have also reiterated the same stand of the respondents

noticed above. On 29th January, 2010, the respondents had

prayed for a last opportunity to comply with the specific

directions made in the earlier order noticed hereinabove, which

was also granted to them. Despite this opportunity, we find

that the affidavit dated 6th March, 2010 also reiterates the

same stand as was taken earlier.

26. There is no dispute at all with the public notice inviting

applications is concerned. The same declared the eligibility

conditions. It also provided for age relaxation in the prescribed

age limit to certain specified categories. Amongst these

categories noticed hereinabove, the respondents had provided

age relaxation up to a maximum of five years for "Government

Servants" without restricting the same to civilian or defence

personnel. There was also no specification of central or state

government servants.

27. It is noteworthy that the only clarification which was

provided in the permissible relaxation was that it was also

made available to Ex-servicemen who were declared to be

eligible for this relaxation. It is, therefore, also evident from the

scheme of the prescriptions that the expression "Government

Servants" included such personnel who were still serving with

the Government. This clarification in fact clearly supports the

stand of the petitioner. It is evident from this stipulation that

the serving servicemen were clearly included within the

meaning of the expression „government servants‟ who were

entitled to the age relaxation in terms of the conditions notified

in the examination notice.

28. The petitioner has also rendered another explanation as

to why serving personnel were also eligible for appointment to

the post of Assistant Commandant. It has been pointed out

that the post of Assistant Commandant is a combatant post of

the Central Police Forces. The petitioner is a combatant

member of the Indian Air Force as he was serving with the

Indian Air Force in the rank of Corporal. This submission has

not been contested by the respondents.

29. It has also been pointed out that in terms of para 11 of

the examination notice No.10/2004, the petitioner was

considered as in-service Government servant and was required

to submit his application form through proper channel. In this

background, the petitioner was permitted by the Indian Air

Force to undertake the examination and the respondents had

accepted his candidature as an in-service candidate for

appointment without any reservation or objection.

30. We may notice a material admission on the part of the

respondents. In para 9 of the counter affidavit, the respondents

clearly accepts that Indian Air Force personnel are "Central

Government servants".

31. The objection that the air force personnel do not fall in

the category of "central government civilian employees" under

rule 2(h) of CCS(CCA) Rules, 1965 or under rule 2 (m) defining

the expression "government servant" is, therefore,

meaningless. It is noteworthy that the definitions contained in

Rule 2(h) and 2(m) are only for the purposes of Central Civil

Services (Classification, Conduct and Appeal) Rules, 1965. So

far as the appointment to the post of Assistant Commandant is

concerned, the conditions thereof have been provided in the

Examination Notice No.10/2004. The respondents have

accepted the candidature of the petitioner as a serving

personnel of the Indian Air Force. He has been denied the age

relaxation admissible to serving government servants by

reading in a stipulation which has not been provided in the

advertisement.

32. We find despite repeated opportunities, the respondents

have been unable to even remotely indicate the basis on which

the classification has been made by the respondents not to

grant age relaxation to serving personnel in the Indian Air

Force even though it is admitted that they are government

servants. As observed in the orders dated 23rd April, 2007 and

11th July, 2008, there is clearly no rationale behind the decision

to exclude serving personnel from entitlement to age

relaxation while granting the same to civilian government

servants as well as retired defence personnel. The spirit,

intendment and object of the prescription in the advertisement

is evident from the fact that Ex-servicemen are specifically

stipulated which manifests that in-service defence personnel

are clearly covered under the expression "government

servants" who were entitled to be considered for the age

relaxation as was notified.

33. The petitioner has been denied appointment on this

totally erroneous and misconceived stand which is taken by the

respondents. The respondents have not taken a stand before

us that all vacancies for which the process of selection

undertaken pursuant to the Examination Notice No.10/2004

stand filled.

34. The decision to reject the petitioner‟s candidature on the

ground of his being over age without considering the case of

the petitioner for age relaxation; communication dated 19th

October, 2005; the communication dated 6th September, 2005

from the Ministry of Home Affairs as well as communication

dated 18th December, 2007 have failed to take into

consideration the aforenoticed relevant material and in fact

disclose no rationale or basis for the classification which has

been effected. It has to be held that the action of the

respondents is therefore arbitrary, unjustified, unreasonable

and not legally sustainable.

In view of the above, we direct as follows:-

(i) The order dated 19th October, 2005 holding that the

petitioner is disentitled to age relaxation and,

therefore, is over age for the appointment to the

post of Assistant Commandant pursuant to the

Central Police Forces Examination -2004 is hereby

set aside and quashed.

(ii) The respondents are directed to process the case of

the petitioner for consideration of age relaxation

and also to declare the result and rank of the

petitioner in terms of the examination and interview

which was held pursuant to the Examination Notice

dated 10/2004.

(iii) In case the petitioner is found meritorious based on

his marks and rank, the respondents shall proceed

to effect his appointment in the post, subject to

fulfillment of requisite medical fitness in the matter,

with all consequential benefits.

(iv) So far as the pecuniary benefits, if any, are

concerned, the respondents shall be entitled to

adjust the amount which the petitioner has drawn

from his employment with the Indian Air Force

towards the amount which may be admissible to the

petitioner.

(iv) The respondents shall ensure compliance with the

above directions within a period of eight weeks from

today and communicate the decision taken to the

petitioner.

(v) The petitioner is entitled to the costs which are

quantified at `10,000/-.

This writ petition is allowed in the above terms.

GITA MITTAL, J

J.R. MIDHA, J OCTOBER 28, 2010 mk