Madras High Court
R.Subbiah vs The Management Of on 4 August, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.08.2014 CORAM THE HONOURABLE MS.JUSTICE K.B.K.VASUKI W.P(MD)No.6656 of 2008 and W.P(MD)Nos.5882, 7563, 7564, 10047, 5546, 6939 to 6941/2008, 933, 583/2009, 2325/2005 7394 & 9503/2009, 7549, 8072 & 9304/2008, 3793 to 3798/2009, 6340 to 6363/2009, 5823/2011, 4961 & 5268/2012 5271/2012, 1237/2012, 9101 to 9120/2012 6622/2010 & 10969/2011 6598 & 6599/2012, 866/2014, 1517/2014, 6681, 6682 & 6684/2012, 7111/2012, 8009/2012 8364 & 10394/2012, 14936 & 16006/2013, 5605/2012, 652, 658, 659, 916, 1195, 1827, 2359 to 2361, 2695/2014 2696, 2882, 3160, 3192, 3283 & 3284/2014 3375 & 3416/2014 and Connected Miscellaneous Petitions W.P(MD)No.6656 of 2008 1.R.Subbiah 2.A.Bharathy 3.P.Shankar 4.Senthil Kumar 5.V.Ravichandran .. Petitioners vs 1.The Management of B.H.E.L., rep by its Chairman and Managing Director, BHEL Corporate Office, Siri Fort, New Delh 110 049. 2. The General Manager, BHEL, Tiruchirapalli-14. 3.The Senior Manager/HR (Recruitment and Systems) BHEL, Trichy 620 014. .. Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus, directing the respondents to consider the case of the petitioners for appointment in permanent regular services in the respondent company for the post of Artisans, as per the provisions of the Apprentices Act 1961 based on the principles laid down by this Court made in WA.Nos.685 to 687 of 2007 and in WP.No.7657, 9711 to 9715 of 2006 and 9639 of 2007. !For petitioners : Mr.AR.Nambunayagam For respondents : Mr.Vijay Narayan, SC for Mr.A.V.Arun :COMMON ORDER
The above batch of writ petitions are filed by those, who have completed apprenticeship training in the respondent- Bharat Heavy Electrical Limited (BHEL) from 1979 onwards. There are more than 100 writ petitions, covering nearly 1400 persons and the petitioners consist of ITI, diploma and technical appendices. The relief claimed in all these writ petitions is for enforcing the petitioners' right of employment in the respondent Unit. While some of the writ petitions are filed to issue a Writ of Mandamus, directing the respondent BHEL to provide them employment, other writ petitions are filed, questioning the employment notifications of the years 2007, 2008, 2009 and 2012 issued after the introduction of new Recruitment Policy on 14.8.2007. Except WP.No.2325/2005, all the remaining writ petitions are filed after 2008 and between 2009 and 2014.
2.The relief claimed in all these writ petitions, for providing them employment against the sanctioned vacancies without resorting to recruitment process from open market is mainly based on the following factors :
(i)Section 22(2) of the Apprentices Act, 1961; (ii)Policy of absorption found in Rules 4.4 and 6.1 of the Old Recruitment Policy called "the Statement of Company's Recruitment Policy"; and (iii)Right to get employment as that of the erstwhile apprentices, who were accommodated in Ranipet and Trichy Units of the respondent BHEL.
3.The relief sought for herein is seriously opposed on the side of the respondent BHEL on the following grounds: (i)the writ petitions suffer by reason of existence of alternative remedy available and on the ground of inaction, delay and laches on the part of the petitioners; (ii)the official documents pertaining to the years 1999 to 2002 produced on the side of the petitioners, relating to requisition made to the Employment Exchange for filling up the post of apprentices, notification to the Employment Exchange and offer letters issued to the selected candidates for apprenticeship training during the contemporaneous period and the contract of apprenticeship entered into between the parties do not provide for employment to the apprentices trained by the respondent company; (iii)the recruitment of apprentices on earlier occasion in Ranipet Unit on the strength of Section 12(3) settlement and in Trichy Unit on the strength of the Hon'ble Apex court decision, is on different grounds and circumstances and the same is not presently available to the petitioners; (iv)old recruitment policy is replaced by new recruitment policy, based on Government of India notification and guidelines issued by the Hon'ble Apex Court; and (v)the petitioners, having been over aged, no direction can be issued to the respondent Management to relax the same in violation of the rules and regulations in the matter of recruitment and (vi)the petitioners cannot claim on the basis of legitimate expectation, for regular employment.
4.Heard the rival submissions made on both sides.
5.The respondent BHEL is a Government of India Undertaking engineering and manufacturing enterprise in India in the energy related/ Infrastructure sector and is statutorily obliged to train apprentices and the number of persons to be provided with apprenticeship training will be determined by the Apprenticeship Adviser. The respondent has been imparting training to minimum of 700 apprentices per year. As far as the petitioners are concerned, they underwent training after 1983. It is no doubt true that there was recruitment by way of absorption taken place upto 1998 from and among those apprentices given training upto 1993 and the recruitment was against sanctioned posts and not enmass absorption of all the apprentices. It is equally true that there was no recruitment from 1998 to 2005, due to ban on recruitment.
6.As far as the petitioners herein are concerned, they filed the present writ petitions, after 2008 that too after new recruitment policy was introduced i.e., on 14.8.2007, which does not provide for recruitment through absorption from apprentices. Since 1984, BHEL as per the particulars furnished herein, has provided apprenticeship training to 26,057 persons. But, the petitioners have approached this court by way of writ petitions from 2008 onwards. Till then, neither the petitioners nor the remaining apprentices has thought it fit to approach the respondent BHEL, seeking employment. There is absolutely no explanation in the writ petitions for their delay in approaching this Court for enforcing their right of employment. Some explanation is sought to be given in the written submissions filed herein stating that they were advised to wait till the disposal of the appeal filed by the Management before the Hon'ble Supreme Court in Civil Appeal Nos.10815 and 10816 of 21013 arising out of SLP (C) Nos.21420-21421 of 2009 and the appeals were disposed of on 03.12.2013 by the Hon'ble Supreme Court. This Court in one of the writ petitions in WP.(MD)No.9304/2008, has made a docket order to the effect that the writ petition shall be taken up after the appeal filed by the Management in the Supreme Court is disposed of and the petitioners hence, chose to await the outcome of the proceedings in the Supreme Court, as there is no purpose to file writ petition at that stage. This explanation is neither inspiring nor convincing for the simple reason that the respondent management approached the Supreme Court in 2013 and one of the petitioners filed the writ petition in 2005 and the remaining writ petitions are filed from 2008 onwards. That means, the writ petitioners have chosen to approach this court without awaiting the Supreme Court verdict on this issue. If the explanation offered by the petitioners herein is accepted, the petitioners ought to have approached this court after 2013. The very fact that the writ petitions have been filed since 2008 onwards would not support the explanation offered by the petitioners herein. The fact remains undisputed is that the writ petitions, except WP.No.2325/2005 which is filed in 2005, are filed from 2008 onwards, much after the petitioners completed apprenticeship training.
7.The learned senior counsel for the respondent BHEL draw the attention of this Court to the record retention policy of BHEL, as per which, the documents relating to training programme of apprentices are to be retained only for 3 years and hence the actual contracts executed between the parties are not available and the same puts the respondent in a fix for producing the relevant documents before this court. This court finds some force in the argument advanced on the side of the respondent regarding the hardship faced by the respondent BHEL in producing relevant documents before this Court by reason of delay on the part of the petitioners to approach this court.
8.The Hon'ble Apex Court, in the case of State of Orissa v. Mamata Mohanty (2011) 3 SCC 436, under similar circumstances, reiterated that when the petitioner approached the court after coming to know of the relief granted by the Court in a similar case, the same cannot furnish a proper explanation for delay and laches. It is held that a litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the court within a reasonable time. Applying the same view herein, this court is inclined to agree with the contention raised on the side of the respondent that unexplained and inordinate delay and laches rendered the relief to be negatived.
9.Regarding the alternative remedy is concerned, the same is based on Section 20 of the Apprentices Act, 1961. It cannot be disputed that the selection of apprentices is on the basis of the contract of apprenticeship. The relevant provision of law under section 20 provides for referring any disagreement or dispute between an employer and an apprentice arising out of the contract of apprenticeship to the Apprenticeship Adviser for decision and the decision of the Apprenticeship Adviser under sub section (1) is under sub section (2) of Section 20 appeable to the Apprenticeship Council and such appeal shall be heard and determined by a committee of that Council appointed for the purpose and subject to that appeal, the decision of the Apprenticeship Adviser under sub section (1) shall be final. In this case, admittedly no such dispute is raised to be referred to the Apprenticeship Adviser. Here also, the failure on the part of the petitioners in raising such dispute or making any representation to the respondent BHEL before approaching this court remains unexplained. When the relief sought for herein relates to the right of employment which inturn based on the contract of apprenticeship, the writ petitions filed before exhausting the remedy available under the Apprentices Act are hence not maintainable.
10.On facts, the first aspect to be considered herein is regarding the procedure for selection of the candidates for apprenticeship training and status given to them under the Apprentices Act. From the facts made available herein, it is now seen that the post of appendices will be first notified through employment exchange and the persons with requisite qualification will be sponsored through employment exchange and they will be selected on merits and the selected candidates will be issued offer letters and the same will be followed by contract of apprenticeship. Under section 18 of the Apprentices Act, every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker and the provisions of any law with respect to labour shall not apply to or in relation to such apprentice. Section 22(1) makes it not obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment nor shall it be obligatory on the part of the apprentice to accept an employment under the employer. However, section 22(2) makes it obligatory on the part of the employer, where there is a condition in a contract of apprenticeship that the apprentice shall, after the successful completion of the apprenticeship training, serve the employer, the employer shall on such completion, be bound to offer suitable employment to the apprentice and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract. Section 22(2) further says that where such period or remuneration is not, in the opinion of the Apprenticeship Adviser, reasonable, he may revise such period or remuneration, so as to make it reasonable and the period or remuneration so revised shall be deemed to be the period or remuneration agreed to between the apprentice and the employer. The combined reading of Sections 18, 20 and 22(1) to 22(2) would only lead to an inference that there is no obligation on the part of the employer to offer suitable employment to the appendices on regular and permanent basis.
11.During 2006, batch of writ petitions were filed by the apprentices who completed their apprenticeship training under BHEL prior to 1993 and were given casual employment on daily wages basis from time to time. Since BHEL was making efforts to recruit various persons to the posts of Fitter, Machinist, Welder Trade as Artisan Grade IV etc., without regularly employing the apprentices, the writ petitions were filed, claiming permanent status on the ground that BHEL has already given employment to similarly placed persons in the office at Ranipet, but was not giving such benefit to the apprentices in the office at Tiruchirapalli. The relief was opposed by the respondent BHEL mainly on the ground that there was no clause in the contract of apprenticeship to offer suitable employment, as such, they were bound to participate in the recruitment process along with other eligible candidates and preference would be given to those who completed apprenticeship training, if other things were equal. The writ petitions were allowed by the learned brother judge and the order of the learned single judge was questioned by the respondent BHEL by way of W.A.(MD)Nos.685 to 687 of 2007. There were also other writ petitions filed by similar apprentices and the same were tagged along with the writ appeals. The writ appeals batch were dismissed by confirming the order of the learned single judge. Challenging the Division Bench judgment in the writ appeals and writ petitions, Review Application Nos.79 and 36 to 42 of 2008 were filed by the management of BHEL and the Review applications were also dismissed against the Management of BHEL and the same was again challenged by way of SLP (C) Nos.21420 and 21421 of 2009 which were converted as Civil Appeal Nos.10815 and 10816 of 2013 and the same were disposed of by way of consent order, wherein, the Management of BHEL undertook to absorb the apprentices, who were below 40 years of age. While doing so, the Hon'ble Apex Court has specifically stated that the order being passed on the agreement of parties, will not be precedent for other cases.
12.Before going into the respective contentions raised on both sides in this regard, this court is required to analyse the grounds on which the writ appeals were disposed of against the Management of BHEL by the Division Bench of this court. The Division Bench has disposed of the writ appeal Nos.685 and 687 of 2007 along with other batch of writ petitions on the following grounds. (i)The Division Bench was not inclined to consider the model form of contract of apprenticeship training, produced by the management. The Division Bench has drawn adverse inference against the management for their failure to produce the actual contract of apprenticeship training entered with the concerned candidate. In view of their failure to produce the said document, section 22(2) of the Act is applicable to the case on hand. (ii)the Division Bench has also relied on Old recruitment policy as well as the procedure followed till then, by giving employment to those apprentices, who have obtained apprenticeship training certificate under BHEL and (iii)The Division Bench also relied on the absorption of workmen at Ranipet on the strength of section 12(3) settlement entered into between the parties, to uphold the right of similarly placed persons in other unit for getting employment or at least for having legitimate expectation of employment. In the opinion of the Division Bench, new recruitment policy having been issued only on 14.8.2007, much after the impugned employment notification issued in June 2006, cannot have the right of denying the right of apprentices, who completed the apprenticeship training much earlier.
13.It is argued on the side of the petitioners that the petitioners, being similarly placed persons as that of the persons who got employment in Ranipet and Trichy Units, they have equal right of employment or legitimate expectation of employment and they cannot be denied or rejected such right and the denial of such right is in violation of Article 14 of the constitution of India. Whereas, the respondent Management would, by relying on the doctrine of merger and on the basis of the records relating to notification to employment exchange, offer letters and contract of Apprenticeship training in respect of some of the workers during the relevant point of time and on the basis of new recruitment policy, argue that the grounds on which the Division Bench disposed of the appeals, are no longer available to the writ petitioners herein and the consent order passed by the Supreme Court cannot be relied on by the petitioners herein to seek equal benefit as that of the apprentices covered under the order.
14.Before going into the doctrine of merger, first aspect to be considered herein is the documents produced herein. The respondent/management of BHEL has produced the Contract of apprenticeship in respect of named apprentices, offer letters of apprenticeship training and notifications to employment exchange in respect of certain employees by way of typed set. All these documents relate to some of the petitioners and also non petitioners/apprentices and contains a specific clause. The main provisions of the Apprenticeship Rules relating to the contract of apprenticeship training do not contain any clause for providing employment. Clause 3 of the terms and conditions of the offer of Apprenticeship training says that it shall not be obligatory on the part of BHEL to offer any employment to the apprentice on completion of apprenticeship training in BHEL nor shall it be obligatory on the part of the apprentice to accept any employment under BHEL. Further, the notification to the employment exchange also specifically says that these posts are only training posts and there is no guarantee of appointment after training. The respondent BHEL also filed additional typed set containing name of the petitioners to whom the documents such as notification to employment exchange, offer letters of apprenticeship training and contract of apprenticeship training relate to. These documents, according to the respondent management, were collected from Apprenticeship Adviser. Only a vague attempt is made on the side of the petitioners to dispute the correctness of those documents.
15.As rightly argued by the learned senior counsel for the respondent management, there is absolutely no reason made out to doubt the genuineness of these documents, particularly in view of delay on the part of the petitioners to approach this court and in view of record retention policy of the respondent Management to retain the documents only for 3 years and mainly on the failure of the petitioners to produce their copies of contract of apprenticeship training before this Court. As per Rules, the contract of apprenticeship training entered into will be prepared in triplicate. That means, one copy will be retained by the management; second copy will be retained by the concerned apprentice and third copy is submitted to the Apprenticeship Adviser. However, none of the petitioners have chosen to produce their copy of contract of apprenticeship training before this Court to deny the correctness of the documents produced herein. Under such circumstances, this court feels that it can safely rely on these documents produced on the respondent BHEL to arrive at the decision whether the contract of apprenticeship provides any clause, making it obligatory on the part of the employer to offer suitable employment to the apprentices, after completing apprenticeship training or for the employee to serve under the employer etc. further, there is no reason to presume that the contract of apprenticeship copy of which is produced herein, is different from the contract of apprenticeship in respect of present set of petitioners. The ground on which adverse inference was drawn by the Division Bench, is no longer available to the present set of petitioners. Hence, by virtue of these documents, the stand taken by the petitioners that the employer is bound to absorb them in the regular employment under Section 22(2) of the Act, is liable to be negatived.
16.As far as the absorption of apprentices at Ranipet unit is concerned, the same is in pursuance of Section 12(3)settlement between the workers and the management. They are the cases, where the apprentices were, after completion of apprenticeship training casually employed as workmen on daily wages and were land sufferers represented by Trade Unions. If that is so, the petitioners, who are merely apprentices, without any relationship of the employer and employee, cannot claim any right of getting employment or legitimate expectation of employment.
17.As far as the writ petitions filed by the apprentices in Trichy Unit is concerned, here again, they were working as causal employees on daily wage basis. Further, the Hon'ble Supreme Court, while disposing of the SLPs, specifically observed that the order shall not be taken as precedent, which means, the order cannot be the basis for employment through absorption policy. As it is well established before this court that the employment given to the earlier set of apprentices is on different circumstances, it cannot be construed as surrounding circumstances to be taken advantage of by the present set of petitioners to consider their claim for regular employment.
18.In this context, the learned senior counsel for the respondent management would draw the attention of this Court to the 'doctrine of merger' and the scope of applicability of the order of the Hon'ble Supreme Court under Article 142 of Constitution of India to the present set of petitioners. The learned senior counsel for the respondent BHEL cited the following judgment, for the legal proposition that once the order of a Court has been taken up on appeal to a higher court, the order of the higher court will substitute the order of the lower court and the order of the lower court will be of no effect whatsoever. If a petition for leave to appeal is dismissed by the Hon'ble Supreme Court, the order of the High Court becomes final, even though it cannot be said that the order has been confirmed or affirmed by the Supreme Court. However, once the leave has been granted by the Hon'ble Supreme Court, the order that is passed thereafter will be in substitution of the order of the High Court by applying the doctrine of merger. In the judgment reported in (2004) 8 SCC 724 (Chandi Prasad v. Jagdish Prasad), the Hon'ble Apex Court, by following the earlier decisions of the same court, observed so. It is further argued on the side of the respondent that while the order passed by the Hon'ble Supreme Court under Article 141 of the Constitution of India is binding law, any order passed under Article 142 of the Constitution on the peculiar facts and circumstances of the case, is not a binding precedent. The learned senior counsel for the respondent BHEL in support of such proposition of law, relied on the following decisions before this court: (i)(2002) 8 SCC 158 (State of Punjab v. Rajesh Syai); (ii)(2006) 8 SCC 381 (Ram Pravesh Singh v. State of Bihar); (2008) 17 SCC 617 (State of Jharkhand v. Bijay Kumar); and (iv)(2003) 3 SCC 427 (Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav).
19.This Court, by applying the principles regarding the doctrine of merger as laid down in the decisions cited supra, finds much force in the argument so advanced on the side of the respondent management. Insofar as the findings rendered by the Division Bench of this Court in the batch of Writ Appeals, are concerned, as rightly argued by the learned senior counsel for the respondent BHEL, absorption on the basis of Section 12(3) settlement either in Ranipet Unit or on the basis of consent order passed by Apex Court in Trichy Unit cannot be the basis for claiming similar relief to the present set of petitioners, who are bound by the identical contract of apprenticeship training entered into with the management, in the absence of any clause as contemplated under Section 22(2) of the Act. The petitioners are also bound by the specific clause in the identical notification to employment exchange and offer letters relating to their selection as apprentices.
20.Next point that emerges for consideration herein is the recruitment through absorption under old recruitment policy and the procedure to be adopted under new recruitment policy. As already referred to, old recruitment policy provides for absorption of Artisan Trainees and supervisory trainees from and among the apprentices on satisfactory completion of their apprenticeship training under the Apprenticeship Act. The respondent management under the old practice, recruited upto 1998 through absorption apprentices trained upto 1993. Thereafter, there was recruitment ban from 1998 to 2005. All the writ petitions are filed from 2008 onwards after new recruitment policy came into force on 14.8.2007, as per which, the management gave up the recruitment by way of absorption. The employment notifications challenged herein are issued, after introduction of new recruitment policy in 2007.
21.It is explained on the side of the respondent management that the Hon'ble Apex court, in one of its judgments in Vishweswara Rao case (1996) 6 SCC 216 laid down a law that all eligible citizen should be given an opportunity for employment in public sectors by giving wide publication through newspapers inviting applications. The Hon'ble Supreme Court laid down so in its judgment dated 22.8.1996. The same was followed by publication of Revised Personnel Manuel during August 1997 by the respondent management, without recruitment policy and thereafter, by appropriate communication issued by Government of India to Central Public Sector Undertakings in addition to notification to Employment Exchange, directing them to publish recruitment notice in the employment news published by the Government of India and to display recruitment notices on the notice boards for wider publicity and then to consider the cases of all the candidates who have applied. It was issued so in order to provide equality of opportunity to all the persons who have been aspiring for job. The Corporate Office of the respondent BHEL also directed its units to follow the guidelines issued by the Government of India for further recruitment. The recruitment policy was also revised, incorporating the changes for giving advertisement in the press, in addition to notification to employment exchange. Accordingly, employment notifications, which are challenged herein, were issued, after introduction of new recruitment policy on 14.8.2007.
22.In the earlier batch of writ appeals along with batch of writ petitions, the Division Bench was not inclined to accept new recruitment policy mainly on the ground that the employment notification challenged therein was much before the new recruitment policy. However, in the present writ petitions, the employment notifications challenged are much after the new recruitment policy. In view of ban on recruitment during 1998 to 2005 and in view of new recruitment policy and also in the light of the Apex Court judgment, the respondent management, who is one of the Public Sector Undertakings, can now no longer be called upon to adopt old recruitment policy, as such, the claim of the petitioners for recruitment by way of absorption is no longer legally maintainable.
23.As the recruitment policy is subject to changes, in conformity with the guidelines issued by the Hon'ble Supreme Court and Government of India, no direction to adopt different mode of recruitment confining to only one source alone in violation of the guidelines issued by the Hon'ble Supreme Court and in violation of Articles 14 and 16 of the Constitution of India, can be issued against the management, since unemployed eligible persons will be deprived of their right to apply for these posts. The learned Senior counsel for the respondent BHEL has also in this context, cited the authority reported in (2011) 3 SCC 436 (State of Orissa v. Mamata Mohanty) wherein, it is observed that "no person can be appointed even on a temporary or adhoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post from being considered. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement so as to enable all eligible persons to compete on merits". Such observation is binding on respondent' management.
24.As the conduct of the respondent management in not providing employment to the petitioners is thus based on factual and legal basis as explained above, the respondent Management cannot be said to have adopted different yard stick insofar as the petitioners are concerned and the present set of petitioners cannot get any preference in employment. At this juncture, the learned counsel for the petitioners has by relying on the following judgments, contended that when the similarly placed apprentices were already given employment either under Section 12(3) settlement or on the strength of the consent order passed by the Hon'ble Apex Court, there is absolutely no reason to deny the same to the present set of petitioners: (i)1991 Supp (2) SCC 294 (Ashish Mathur v. Oil and Natural Gas Commission and others); and
(ii)2011 (4) LLN 354 (DB) (Mad) (The Chairman, Tamil Nadu Electricity Board and another v. D.Venktesan and another). However, the same are not applicable to the facts of the present case. As the grounds on which other set of workers were absorbed are no longer available to the present petitioners and as there was ban on recruitment during the relevant period and as the recruitment policy was also changed due to the guidelines issued by the judiciary as well as executive, the question of extending the same benefit to the petitioners herein does not arise. Considering the then prevailing circumstances, the petitioners herein cannot be now permitted to say that they have the right of legitimate expectation of employment in the respondent BHEL.
25.One more ground on which the learned senior counsel for the respondent BHEL opposed the petitioners' claim for employment is that they are over aged. The learned senior counsel for the respondent BHEL management has, by relying on the following judgments reiterated that the management cannot be called upon to violate its own Rules and Regulations in the matter of recruitment: (i)(2006) 8 SCC 671 (Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy); and (ii)(2011) 3 SCC 436 State of Orissa v. Mamata Mohanty. In both the cases, the Hon'ble Apex Court following the earlier decisions, is of the view that "the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations and it is intended to be used in marginal cases where exceptionally qualified candidaes are available and it is not intended as an 'open sesame' for all and sundry......". "In the absence of an enabling provision for grant of relaxation, no relaxation can be made. Even if such a power is provided under the statute, it cannot be exercised arbitrarily and such a power cannot be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. Even an implied power is to be exercised with care and caution with reasonable means to remove the obstructions or overcome the resistance in enforcing the statutory provisions or executing its command. Incidental and ancillary powers cannot be used in utter disregard of the object of the statute".
26.Thus, viewing from any angle, this court is of the view that the claim of the petitioner is factually and legally unsustainable and the petitioners are hence dis-entitled to claim any relief in these writ petitions.
27.In the result, all the writ petitions are dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.
rk Index:Yes/No Internet:Yes/No 04.08.2014 K.B.K.VASUKI, J. WP(MD) No.6656/2008 etc. (BHEL batch) 04-08-2014