Central Administrative Tribunal - Chandigarh
Meenu D/O Jang Pal Singh vs Chandigarh Administration Through The ... on 14 March, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(Reserved on 21.02.2017)
Date of decision- 14.03.2017
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J)
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
(i) OA No. 060/01027/2014
1. Meenu D/o Jang Pal Singh, r/o H. No. 149, Phase III A, Sector 53, District Mohali (Punjab).
2. Monika d/o Sukhdev singh r/o H.NO. 2864/3, Sector 49 C, Chandigarh.
3. Meenu Rani d/o Shyam Singh, R/o H.No. 5174, Maloya Colony, Chandigarh.
4. Madhu Khanna d/o Krishan Kumar Khanna, r/o H.No. 151, Village Buteral, Sector 41 B, Chandigarh.
5. Meena D/o Harinder Singh, r/o H.No. 3048-A, Sector 29-D, Tribune colony, Chandigarh.
6. Poonam Malhotra D/o Brij Mohan Malhotra, r/o H.No. 25, Sector 20-C, Chandigarh.
7. Monika Rani D/o Birbal Kumar r/o H.No. 1577, Ekta Bihar village Baltana, The. Derabassi, District Mohali (Punjab).
8. Reena D/o Umed Singh, r/o H.No. 4566, Mauli Complex Chandigarh.
9. Sarita Gusain D/o Roop Chander Singh r/o H.No. 1490/17-E, Adarsh Nagar, Naya Gaon, District Mohali (Punjab).
10. Raveena D/o Mohinder Singh r/o H.No. 5097, Sector 38 W, Chandigarh.
11. Reena D/o Udya Singh, R/o H.No. 1538, Sector 23-B, Chandigarh.
12. Richa Nagpal D/o Surinder Kumar, R/o H.No. 7/2, Sector 41 A, Chandigarh.
13. Kamlesh Kumari D/o G.C. Kler, R/o H.No. 63/204, Fad Dappar, District Mohali (Punjab).
14. Madhu Bansal D/o Ram Niwas Gupta R/o H.No. 2776, Sector 15, Panchkula (Haryana).
15. Dolly Mahenaru D/o Manjit singh r/o H.No. 1679, Sector 80, Mohali (Punjab).
16. Sunita Bisht D/o Ravinder Singh R/o H.No. 38, Govind Vihar, Baltana, District Mohali (Punjab).
17. Sonia D/o Harpal Singh, R/o H.No. 688, Sector 19, Panchkula (Haryana).
18. Charanjit D/o Kamaljit Singh R/o H.o. 5723 (HIG) Sector 38 (West), Chandigarh.
19. Kavita D/o Om Parkash r/o H.No. 3235, Sector 19, Chandigarh.
20. Harsimran Kaur d/o Gurminder Singh r/o H.No. 2006/2, Sector 45 C, Chandigarh.
21. Anu Bala D/o Sat Pal Harinder, R/o H.No. 2395, Telecos Society, Sector 50-C, Chandigarh.
22. Meera D/o Suraj Sali r/o H.No. 1152/1, Sector 40 B, Chandigarh.
23. Nisha D/o Baldev Raj R/o H.No. 3334, Sector 35 D, Chandigarh.
APPLICANTS
BY ADVOCATE : Mr. Parvesh Kumar Saini
VERSUS
1. Chandigarh Administration through the Education Secretary, U.T, Chandigarh.
2. The Director Public Instructions (S), Chandigarh Administration, U.T, Chandigarh.
3. The District Education Officer, U.T, Chandigarh.
RESPONDENTS
BY ADVOCATE: Sh. Assem Rai.
ii) OA No.060/00408/2015
Aditi, aged about 36 years, D/o Sh. Kewal Krishan, R/o H.No.1937, Sector 15, Panchkula.
Applicant
By Advocate: Mr. R.C. Sharma.
Versus
1. Union Territory of Chandigarh through Secretary to Education, U.T. Civil Secretariat, Sector 9, Chandigarh.
2. Director Public Instructions (Schools) Chandigarh, Additional Deluxe Building, Sector 9, Chandigarh.
.Respondents
By Advocate: Mr. Arvind Moudgil.
iii) OA No.060/00051/2015
Vibha daughter of Shri Om Prakash, aged 31 years, resident of House No.262, Sector 30-A, Chandigarh.
.Applicant
By Advocate: None.
Versus
1. Union of India through the Secretary, Government of India, Ministry of Home Affairs, New Delhi.
2. Chandigarh Administration, Chandigarh through its Educational Secretary, Sector 9, Chandigarh.
3. Director Public Instructions (S), Chandigarh Administration.
Respondents
By Advocate: Mr. H.S. Sullar.
iv) OA No.060/00479/2015
Monika D/o Sh. Sant Pal, aged 33 years, R/o House No.42/1, Hanuman Nagar, Near Sugar Mill, Sonepat-131001.
..Applicant
By Advocate: Mr. Rohit Seth.
Versus
1. Chandigarh Administration through its Finance Secretary-cum-Secretary, Education Department, U.T. Chandigarh.
2. Direct Public Instructions (Schools), Education Department, Chandigarh Administration, Additional Deluxe Building, Sector 9, Chandigarh.
Respondents
By Advocate: Mr. Arvind Moudgil.
v) OA No.060/01085/2015
Anju Bala D/o Sh. INder Singh Malik wife of Jasbir Singh, resident of House No.1, Sukhna Golf Link, Tribunal Colony, Kansal, Village Kansal, P.O. Naya Gaon, Tehsil Majri, Distt. Mohali, Punjab, (for the post of 747 Group-C).
..Applicant
By Advocate: None.
Versus
1. Union Territory, Chandigarh through Secretary, Department of Education, Mini Secretariat, Sector 9, Chandigarh.
2. Directpr Public Instructions, Chandigarh Administration, Additional Deluxe Building, First Floor, Sector 9, Chandigarh.
Respondents
By Advocate: Mr. H.S. Sullar , Advocate proxy for Mr. Vinay Gupta, counsel for the respondents.
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER (J):-
The bunch of five O.As involve common facts and relief which allow us to hear these petitions together likewise as requested by the learned counsel for the parties and dispose of all these petitions by common order. For convenience, the facts are taken from O.A No. 060/01027/2014 titled Meenu & Ors. Vs. U.O.I & Ors..
2. The applicants have approached this Tribunal by filing present original applications, they have, inter-alia, sought following relief:-
ii. To direct the respondents to give the applicants equal treatment and opportunity for the post of JBT (Group C) in terms of age relaxation as has been given by the respondents to women candidates for the post of TGT (Group C). iii. To direct the respondents to allow the applicants to appear in the written test and take part in the selection process for the posts of JBT (advertised through Annexure A-1) by granting them benefit of age relaxation in view of the fat that since beginning the respondents used to give age relaxation to women candidates for the posts of JBT (Group C Post) as evident from aforestated advertisements.
iv. To direct the respondents to grant the age relaxation of 10 years to applicant no. 4 who is divorced lady in accordance with aforestated instructions of Central Government /Chandigarh Administration issued from time to time, since this benefit has been made available to divorcee women candidates for the posts of TGT (Group C post) vide advertisement (Annexure A-3).
v. to direct the respondents to incorporate/insert the same provisions of age relaxation to women in the Chandigarh Education Services (School Cadre) (Group-C) Recruitment Rules, 1991 (Annexure A-11) at S. No. 7 under Column no. 6-A, in the same manner as has been provided for women for the post of TGT at S. No. 3 under column no. 6-A and further to direct the respondents to give age relaxation upto 35 years to the applicants who are aspirant women candidates for the posts of JBT (Group-C) vide the impugned advertisement (Annexure A-1) in the same manner as is made available to the women candidates for the posts of TGT vide advertisement (Annexure A-3).
3. The facts which led to filing of present O.A are that all the applicants in this bunch of petitions are women candidates, who possess requisite educational and professional qualification for the post of JBT and NTT, but are ineligible on the ground of age as they have already crossed the upper age limit prescribed for the post(s). Despite that, they have submitted their on-line applications in their respective category for the above post(s).
4. Interesting to note here that despite being ineligible for the post(s), all the applicants have applied. It is after submitting their applications, they have approached this Tribunal for ventilation of their solitary grievance to declare the action of the respondents as illegal, arbitrary and discriminatory, as they are not providing upper age limit relaxation to women candidates who have applied for the post(s) in question. It is submitted that though the respondents have provided age relaxation to other category as per instructions issued by Chandigarh Administration and not to them (women candidates). By the interim orders of this Tribunal, all the applicants were allowed to participate in the selection process subject to the final outcome of these petitions.
5. The applicants have raised various grounds to invalidate the action of the respondents by not providing age relaxation to women candidates firstly on the ground that they have allowed age relaxation to women candidates who applied for the post of TGT wherein upper age prescribed for the said post was 30 years and by relaxing age, the women candidates have been given the age relaxation of 10 years. Their maximum age has been increased up to 40 years, therefore, it is submitted that once the Chandigarh Administration is providing age relaxation to women candidates for the post of Masters/Mistresses TGT (Group-C), therefore they cannot be allowed to discriminate those women candidates who have applied for the post of JBT/NTT.
6. The applicants have also sought direction to the respondents to insert a clause for providing age relaxation to women candidates who applied for the post of JBT and Nursery Teachers as far these categories, no age relaxation clause is provided to the women candidates. Whereas the respondents have provided age relaxation to women candidates who applied for the post of TGT, therefore their action be declare in violation of Articles 14 and 16 of the Constitution of India. It is also submitted that at earlier point of time, the respondents have provided age relaxation for the same post in the year 2007, between 2008 to 2011, in the year 2012, then this time they cannot be allow to discriminate by not providing age relaxation to women candidates. It is also submitted that for the action of the respondents the applicants cannot be penalized because they have not filled up the posts of JBT after 2007 and have now issued the advertisement in the year 2014 that is after a gap of more than 7 years, therefore those who have become overage be given relaxation in the upper age.
7. The respondents have resisted the claim of the applicants by filing detailed written statement wherein they submitted that recruitment notice/advertisement has strictly been issued/notified in accordance with the notified Rules governing the field i.e. Chandigarh Administration Service (School Cadre) (Group C) Recruitment Rules, 1991. It is submitted that these Rules have been framed under Article 309 of the Constitution of India read with Govt. of India, Ministry of Home Affairs notification dated 01.11.1966, regulating the method of recruitment to Group C Posts in the Education Services (School Cadre) and the said Rules were initially notified vide notification dated 06.02.1991 and published in the Chandigarh Administration Gazette notification on 15.02.1991. As per column 6-A of schedule appended to the said Rules, the minimum and maximum age limit has been prescribed as 21-30 years for the post of JBT and 18-27 years for the post of NTT and no relaxation in age has been provided in Column 6 A of the Rules to the women candidates and there being no age relaxation for women candidates who applied/apply for the post of JBT/NTT under Recruitment Rules, 1991, applicants become over age on the cut-off date and could not be treated as eligible for the post in question. They have also submitted that this Court cannot entertain their petitions by directing them to increase the maximum age for a particular post contrary to the rule formulation/law. They have also placed reliance upon the judgment of the Honble High Court of Judicature for Rajasthan in the case of Rajasthan Public Service Commission Vs. Mahendra Kumar & Ors.( Civil Special Appeal (W) No. 1151/2013). It is also submitted that matter of age relaxation while recruitment for a particular post is within the domain of the Executive Authority to determine what would constitute the ideal age for performing a particular kind of job/duties. Being relevant the contentions of the respondents, which they have used to defeat the case of the applicants in para 2 of the written statement, is reproduced below:-
2. That in response to this para it is submitted that the respondent administration wholeheartedly and without doubt supports and respects the principles of gender equality as enshrined in the Constitution of India. It is duty bound to ensure that such sacrosanct relaxation while recruiting persons to a particular post it is for the concerned government/administration to determine what would constitute the ideal age for performing a particular kind of job/duties. It may be appreciated that Junior Basic Teachers (JBT) and Nursery Teachers (NTT) are required to teach and handle very young children. A certain level of enthusiasm, energy, drive and zest is required in these teachers to deal with these very young children. These qualities certainly diminish with age, at least at the stage of initial recruitment. It will be therefore be unfair and misplaced the question of desirable age for recruiting persons t a particular post. Admittedly, wherever feasible, such age relaxation has been made applicable to categories such as TGT etc.
8. The applicants have also filed rejoinder wherein they have contradicted the averment made in the written statement.
9. In counter to rejoinder, the respondents have also filed an affidavit of Director School Education, Chandigarh Administration wherein they have clarified that in the year 2007, at the time of issuing of combined Appointment Notice for the post of Masters/Mistresses, under mistaken plea or wrongly, benefit of age relaxation was given to women candidates contrary to the rule formulation and since same is not available under the Recruitment Rules, 1991, therefore, this time, they will strictly go by rules by not providing any relaxation to the candidates who applied for JBT and NTT. For ready reference, the stand, inter alia, taken by respondents in the affidavit is reproduced as under:-
2. That as has been explained in the aforementioned written statement, there is no provision in the applicable Chandigarh Education Service (School Cadre) (Group C) Recruitment Rules, 1991 for granting age relaxation to womencandidates while marking direct appointments to the posts of JBT and NTT. However, in the year 2007, at the time of issuing of combined Appointment Notice (A-4) for 273 posts of Masters/Mistresses, 235 posts of JBT and 28 posts of NTT, inadvertently the following clause regarding age relaxation was mentioned:-
Upper Age Limit For the post at Sr. No. 1 to 11 the maximum of age limit is upto 30 years as on the closing date. For Sr. No. 12 i.e. for JBTs the age limit is between 21 to 30 years as on the closing date. The age limit is relaxable by 5 years for SCs, Govt. Servant and Women, by three years for OBCs and 10 years for widows deserted women..
3. That admittedly under the aforesaid Recruitment Rules of 1991, as amended from time to time, age relaxation is permissible while making appointments to the posts of TGT/Master/Mistress. It was with reference to only said relaxation, the clause relating to age relaxation was mentioned in said Appointment Notice of 2007. It should not have been applied to appointments to the posts of JBT/NTT as there is no provision to such effect in the said Rules.
4. That the said clause was not objected to /challenged by the candidates, as such, the said error remained unnoticed and accordingly, age relaxation which was meant only for appointment to the posts of TGT/Master/Mistress was also extended to some women candidates who had applied for the post of JBT/NTT. The relaxation to women candidates for the post of JBT/NTT was given due to error in the Appointment Notice and cannot be cited as precedence. The applicants cannot claim negative parity with said persons who had wrongly/inadvertently been allowed age relaxation in the past.
10. The applicants have also filed an MA No. 060/00064/2017 for placing on record instructions dated 04.11.2016 issued by Chandigarh Administration under the subject Regarding enhancement of upper age limit for entry into Government Service.
11. We have heard Mr. Parvesh K. Saini, Mr. Rohit Seth, Mr. R.C. Sharma, learned counsels for the applicants and Mr. Aseem Rai, Mr. H.S. Sullar, Mr. Arvind Moudgil, learned counsels for the respondents.
12. Mr. Parvesh K. Saini, learned counsel for the applicants along with others vehemently argued that action of the respondents in not granting the age relaxation to the women candidates who applied for post of JBT/NTT is discriminatory as the same very employer had allowed age relaxation to women candidates who applied for the post of TGT, thus, their action is illegal, arbitrary and is liable to be set aside and a direction be issued to the respondents to allow age relaxation to women candidates under said categories, otherwise it amounts to discrimination and violative of Articles 14 /16 of the Constitution of India. They have also argued that once the respondents are providing age relaxation to the same very category at earlier point of time, then they cannot be allowed to discriminate the applicants by not granting age relaxation this time.
13. learned counsel for the respondents, however, in order to repudiate the submissions advanced by the Learned counsel for the applicants, vehemently opposed the prayer made therein and in opening argument, they submitted that it is not the job of the Court to interfere with the rule formulation unless it is proved by the applicants that these are arbitrary and take away their valuable right as provided under the Constitution of India. He also submitted that being employer, they have already notified the Recruitment Rules, 1991 which are framed under Article 309 of the Constitution of India and same does not provide any age relaxation clause to women candidate who applied/apply for the post of JBT/NTT, therefore, by any judicial pronouncements, rules cannot be altered, thus, OA be dismissed being devoid of merit. They have also relied upon the judgment passed in case of Rajasthan Public Service Commission (supra).
14. We have given our thoughtful consideration to the submissions advanced by the learned counsel for the parties, as have been noticed herein above.
15. The core issue that arose for our consideration at the hands of the applicants is whether this Court/Tribunal can issue any direction to the respondents to provide age relaxation to women candidate when it is not provided under the rule formation or in other words whether the action of the respondents can be declare illegal for not providing age relaxation to women candidates.
16. To answer the above poser, it will be appropriate to first notice the relevant rule governing the field and the advertisement in question. Admittedly, Education Department of the Chandigarh Administration uploaded an advertisement on their official website inviting online applications for filling up 489 posts of JBT Teachers and 103 posts of Nursery Teachers on regular basis. The relevant clause governing the essential qualification and age for the post of JBT and NTT reads as under:-
For the post of JBT
(i) Graduate or its equivalent from recognized University with 40% marks in aggregate and at least 50% marks at 10+2 level.
(ii) Diploma in Basic Teacher Training of not less than two years duration recognized by NCTE, with at least 50% marks in aggregate.
OR JBT Certificate/Diploma of not less than two years duration with at least 50% marks recognized by Chandigarh Administration.
Note :- Pass in Teacher Eligibility Test (TET) conducted by the CBSE New Delhi applicable for the teachers teaching Class I to V in accordance with Guidelines framed by the NCTE is essential for the post of JBT.
For the post of Nursery Teacher:-
(A) (i) Senior Sec. School Certificate (10 +2) or intermediate or its equivalent with at least 50% marks in aggregate and
(ii) Diploma or certificate in NTT or its equivalent from an institute recognized by NCTE of not less than two years duration with at least 50% marks Or (B) (i) Senior Sec. School Certificate (10 +2) or intermediate or its equivalent with at least 50% marks in aggregate and
(ii) NTT certificate/Diploma of not less than two years duration with at least 50% marks recognized by Chandigarh Administration.
Age The age limit of the posts of JBT is 21-30 years and for Nursery Teachers is 18-27 years. Age is to be calculated as on 01.01.2014.
The extracted relevant portion of the advertisement makes it clear that for the post of JBT, the candidate must be between the age of 21-30 years and for NTT between 18-27 years on the cutoff date i.e. 01.01.2014. There is no clause for grant of relaxation to women candidates.
17. Concededly, these posts are governing under the Rule called Chandigarh Education Service (School Cadre) (Group C) Recruitment Rules, 1991 and the advertisement issued by respondents was as per the Recruitment Rules. Subsequent to that, vide notification dated 29.07.2011 (Annexure A-12), the respondents enhanced the maximum qualification for the post but age remained the same. All the applicants were not eligible in terms of the age when they applied pursuant to impugned advertisement. They approached this Court by filing present O.A with a prayer to allow the age relaxation to all women candidates under the said category and make them eligible for the said post. They have also gone to the extent that by issuing a direction, the respondents be compelled to insert a provision/clause of age relaxation to the women in the Recruitment Rules, 1991 as at S.No. 3, under column 6-A, it has been provided for the post of TGT where relaxation has been given up to the age of 35 years for SC/ST & Govt. Servants and women. Perusal of advertisement and Recruitment Rules, 1991 abundantly makes it clear that maximum age limit fixed under Rule formulation is 30 years for the JBT and 27 years for NTT. To answer the posers as made above, we like to quote few judgments on the subject that whether by judicial pronouncement the respondents can be directed to alter the relevant rule governing the field or direction can be issued to allow age relaxation to all the applicants by exercising their power to insert relaxation clause.
18. Firstly, in case of Jamaluddin Vs. State of Jammu and Kashmir & Ors., AIR 2012 SC 291, the Honble Apex Court has considered the question of providing the age relaxation in Jammu and Kashmir Judicial Services and has recorded the finding in para 15 of the judgment where it is held that if there is no age relaxation in the relevant rules then same cannot be provided by any judicial interpretation. The para 15 of the said judgment reads as under:-
15. In the present case the advertisement of the Public Service Commission issued in the year 2002, required the persons concerned to be of less than thirty five years of age at the relevant time. That age limit applied to all the candidates. There was no age relaxation in favour of the candidates belonging to the Scheduled Castes or Scheduled Tribes, though there was a quantum of reservation provided for them. The earlier resolution of the Full Court of the High Court passed in February 1982, will therefore, have to be read as providing only for the quantum and not for any age relaxation. If there is no age relaxation in the rules, the same cannot be brought in by any judicial interpretation. In the circumstances we do not find any error in the judgment of the Single Judge or that of the Division Bench. In case of Prem Ratan Modi Vs. State of Rajasthan & Ors, 2013 (1) WLC (Raj.) 39, decided by the Honble Rajasthan High Court while relying on the decision of the Honble Supreme Court rendered in Lordship in case of RPSC Vs. Smt. Anand Kanwar (Civil Appeal No. 52/1993) decided on 08.02.1995 and in case of Malik Mazhar Sultan & Anr. Vs. U.P. Public Service Commission & Ors., 2006 (9) SCC 507, has refused to grant the benefit of age relaxation to the applicants therein beyond the period as provided in the relevant rules. The relevant para of the same reads as under:-
In the ultimate analysis, age relaxation for the direct recruitment, if to be granted, would be a matter for the Government to prescribe in the relevant Rules; and beyond what has been prescribed, cannot be claimed as a matter of right. It appears that in order to mitigate against the hardship likely to be faced by the prospective candidates but at the same time maintaining the balance of the requirements of services, the Government has provided age relaxation upto 3 years by way of notifications of amendment as issued on 23.09.2008. Taking for example the recruitment in question, the maximum age limit as prescribed in the Rules is 35 years and it gets extended to 38 years with the relaxation provided. If at all the factor of not holding of recruitment for 13 years is taken into consideration and the relaxation for all the years of not holding recruitment is provided as suggested, it would be something like allowing a person even at about 48 years of age to enter into the service as an LDC. The Government, in its wisdom, if has chosen to restrict the relaxation to 3 years beyond the age as prescribed, it cannot be said that anything unreasonable or irrational has been provided.
19. Even in case of Rajasthan Public Service Commission Vs. Mahendra Kumar & Ors. , D.B. Civil Special Appeal (W) No. 1151/2013, the Honble Rajasthan High Court has also considered the similar issue and dealt with arguments as raised by the applicants herein by negating prayer made therein by holding that if there is no provision of relaxation provided under the Rule formulation then same cannot be imported by judicial pronouncement. The relevant observations made by the DB reads as under:-
In the case in hand, the State Government in its wisdom, has not provided benefit of age relaxation in the Rules of 1989 looking to the requirement of service in the police department, then it is not open to question the said decision of the State Government by claiming parity with other service rules or with other categories of service.
The learned counsel for the appellant is right in arguing that no parity can be claimed by one category of service with other category of service and it is within the domain of the employer concerned that in which category of service, the benefit of age relaxation is to be provided. The benefit of age relaxation cannot be claimed as a matter of right and, therefore, the claim of the respondent-petitioner for age relaxation in the maximum age limit while claiming parity with other categories of service is not based on sound proposition of law and, therefore, is liable to be rejected.
Consequently, the appeal preferred on behalf of the appellant-RPSC is allowed. The impugned order dated 26.08.2013 passed by the learned Single Judge in SBCWP No. 7824/2012 is hereby set aside and the writ petition filed by the respondent-petitioner is dismissed.
Stay petition stands disposed of.
20. Even the Honble Apex Court in the case of Union of India & Ors. Vs. Shivbachan Rai ( 2001(7) S.L.R. Page 595) in para 6 has held as under :-
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.
21. Considering the aforementioned facts, we are of the considered view that the pose has to be answered in negative because the Courts cannot issue directions to the respondents to alter their service rules which has been framed under Article 309 of the Constitution, as it is within the domain of the Executive to decide and grant relaxation in age unless it is proved that their action is malafide.
They are the best judge. The Court cannot direct the respondent-Government to frame rule in particular fashion. For the sake of repetition, the respondents have able to prove that there is no rule for grant of age relaxation to women candidates of these categories and their action in providing age relaxation earlier point of time was contrary to rule formation. Thus, this Court cannot direct the respondents to act contrary to the rule formation. Accordingly, all the five O.As are dismissed being devoid of merit. These petitions cannot be allowed for another reason because if we accept the prayer made in the O.As for grant of upper age relaxation to women candidates, then it will also be discriminatory for those who did not apply for the post in question by considering them over age in pursuance of advertisement and also that there is no age relaxation, therefore, it will be discriminatory for those who could not apply on this premises only.
22. No costs.
(UDAY KUMAR VARMA) (SANJEEV KAUSHIK)
MEMBER (A) MEMBER (J)
Dated: 14.03.2017
`jk
4