288 e IIV IHE HIGHOURT OF PUNJAB AND HARYANA AT CHANDIGARH J r 1 CWP No98 of2010 0c0N Date ofdecision 722010 Kamal Kumar Oetitioner m r Vs 0 The Central Administrative TribunaI ChandigarhBench C and others Respondent C5 CORAM HONBLE MR JUSTICE ADARSH KUMAR GOEL Z HONBLE MR JUSTICE ALOK SINGR Present Balram Gupta Srdvocate with Mr Roshan Lal Sharma Advocate for the petitioner 08 Mr DSPatwalia Advocate for the caveatOI 7 Z Adarsh Kumar GoelJ 1 This petitioncalls lll questionorder 01 tlle Central Administrative Tribunal distllisslngt11e of the under section 19 of tl Administralive Tribunals Act 1985 claimingSClllOrlt over and above Nos 5 and 6 rigiilal Nos r7 and 3 to the post of l0eputv 1 lJ 1 P Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 289 WP N0298 of2010 600eM 2 1 of Police and claim for induction to IPS cadre by promotionand also further and beneflts 2 Case of the petitioner 1S thathe was senlor to the 111the rank of Assistant Sub m Q InspectorSub Inspectorand Inspectorbut was shown 0 C juniorto them in the gradationlist for the year 199 C5 1993The were glven promotion to the post Z of Deputy ofPolice DSP out ofturn by wronglyrelaxingRule 6 of the PunjabPolice Service Rules 1959 or short the 1959 rules without c their beingbroughton promotion list G 111accordance a Z with PunjabPolice Rules 1934 for short the 1934 Rules and promotionto the post ofDSP was never made OIl regularbasis ln accordance with Rule 6 of 1959 Rules Out oftum promotion was givento original No2 because of influence of his elder brother Shri SSGill who was postedas Home and also under the influence of his fathereiriw Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 290 WPNo98of20106085M1 0 1D SAmrik SinghPooni who served the State of Punjabas Chief and Home Similarlyoriginal No3 was givenout of tum promotionto the postof OfflciatingDSP on 171986 by relaxingRule 6 which required of SlX years As C againstout of promotiongivento Nos 2 and 0 C 3 as above the petitionerwas not glven promotlonto C the post ofDSP inspiteof recommendation based on his Z acts of braveryand courage againstterrorists Even if out oftum on ad hoc basis were giventothe postof DSP the could not be a5 glven seniorityabove the petitionerAd hoc 7 Z given to nos 2 and 3 were illegally Qm vide order dated 272007 3 The petitionermade a on which vide letter dated 22121993 it was intimated that originalsenioritywill be maintained inspiteof out of tum promotionStill promotionof Nos2 and 3 was by relaxingthe rules 111 Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 291 WP N0298 of2010 OceMl 4 manner On notice beingserved by the petitionerthe State gave Show Cause Notice dated 129 1995 requlrlng nOSe 2 and 3 to show cause why claim of the petitionerfor senioritybe not considered Against the said notice Nos 2 and 17 0 m C the CAT by flling a petition which was 0 0 disposedof on 691996 with a direction to hold Review C Select Committee meetingThe petitioner Z the said decision byfllingCWP No1922 of 1997 in this Q Court He also flled CWP No5319 of 2001 against promotionof Nos 2 and 3 to IPS The writ 08 petltlOIlwas disposedof on 292007 directingState of vmm Z Punjabto examine the 1SSues with open mind and faimess In the meanwhile nos 2and3 were lrther promotedto selection grade The State Government rejectedthe claim of the petitionervide order dated 272007 againstwhich the petitioneragalll the CAT 1 Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 292 WP No298 of2010 6OcM 5 4 Claim of the petitionerwas contested by pleadingthat ad hoc promotiongivento No2 on 191986 by relaxingRule 6 of the 1959 Rules for courage and devotion to dutyof highest orde No3 was glven ad hoc promotion on 1 22121986 that he had won medals 1Il 0 C Wrestlingat national and intemational levels The said C5 promotlon was approvedby the PunjabPublic Service Z Commission PPSC as conveyedvide letter dated 0 9121999 on which Nos2 and 3 were a5 conflrmed wef 1731988 and 22 12 1988 No2 also flled replystatingthat lSSue of Z seniorityof DSPs was settled by this Court 111 Tulsi m Ram VSe StateofPuniab and others2001 SLR11 layingdown that DSPs earlier whose servlces were by the Commission were entitled to seniorltyIt was further stated that individuals could also be a class as held by the Honble Supreme Court lll JeCeYadav and others v State of Haryana and others 1 Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 293 WP No98 of2010 6Oclv 6 1990 2 SCC 189 and State of Himachal Pradesh Ve Kailash Chand Mahaian AIR 1992 SC 1277 No3 also justifledhis out of turn promotion and seniority 5 Main 1SSue before the CAT was as to legality of seniorityof private over and above the 0 C petitionerThe same was decided againstthe petitioner C5 interalia by referringto order of the State Govemment Z dated 272007 earlier order ofthe CAT dated 691996 and order of the PPSC promotionto the postofDSP whichjustifledtheir higherseniorityIt was 08 lrther observed that under Rule 14 of the 1959 rules w Z the competentauthoritycould relax ruIes Power of m relaxationhad been exercised longback which could not be disturbed after a longtime It was further observed that individuals could also form a class As regards allegationof malafldes lt was observedthat neither any person by name had been made a partynor anymaterial ll Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 294 WP No298 of2010 6OceM9 7 had been placedon record to show that the order was passedwith malafide intention 6 We have heard leamed counsel for the petitionerand caveators PSGill and Kartar Singh 7 Contentions raised on behalf of the petitioner 1t are as under 0 0 i Rule 14 which conferred power of C relaxation was applicableonly for grantof relaxation to a category of Z cases and not to an individual f ii It was necessary to bringa person Oll G list for promotionto the post of 08 DSP which ln turn requiredholding of a DPC Relaxation of Z requiredunder Rule 6 did not tl amount to relaxation of Rule 6 which required of list G iii There was discrimination as the petitioner s achievements were much higherbut his case for relaxation was not considered RelaxatiOn 111 favour of the was vitiated by bias as brother and father l1 Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 295 WP N0298 of2010 OcM9 8 0A 1 inlaw of Shri PSGill were postedas Home iv Earlier judgmentof CAT having been set aside by th s Court could not have been relied upon v Letter dated 22 12 1993 Annexure m P29 wasto the effect that inspiteof out of tum promotionhe was to be 0 Ca broughton List G only on his tum C according to his originalseniority vi PunjabCivil Services General and Z Common Conditions of Servicel m 0 Rules 1994 will have overriding effect according to which seniority 1S 08 to be determined by lengthof serv Vm There 1S further provision1I1 Rule 8 Z that seniorityof persons on m ad hoc basis 1S to be determined when they are regularly keepingln vlew date of regular appolntment 8e Leamed counsel for the caveators the Vlew taken bythe CAT and submittedthat the power of relaxation was exercisedin the year 1986 and wasnot J Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document P 296 WP N0298 of2010 6O0M9 9 r9 The said power could be exercised even ln an individual case Court could not substitute its Vlew by enteringinto evaluation of comparativemerit on the 1SSue of grant of relaxation The caveator was givenout of tum promotionafter 1 C grant of relaxation which was duly on 0 C recommendation of Public Service Commission vide C5 letter dated 9 12 1999 Annexure P25 and thus the Z had been rightlyglven senlorlty C above the petitionerIt was lrther submitted that afer 08 lapseof 24 years grant of promotion to the Oo oughtnot be interfered with which will mm Z unsettle longstandingseniorityChallenge to tl and seniority of the was made by the petitionerbelatedlywhich disentitled him to relief 9 Leamed counsel for the petitionercontested the standof the and submitted that he made in the year 1989 when his senioritywas Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 297 1 1 WP No98 of2010 60M 10 disturbed and Show Cause Notice was givento the and therealter remained pendingand delaycould not be taken to be againsthim 10 Following anse for consideratiol i Whether grant of relaxation of 0 C of under Rl 6 in favour of the C was justifled and whether the petitionerlS Z entitledto similar relaxation9 ii Whether grantof relaxation under section 61 of the Act was not enoughfor 5 further relaxation of bringing Nos 2 and 3 to list G afer followingthe 7 Z required and ifnotits effect m iii Whether the State Government and the CAT were justifiedin upholdingseniority of Nos 2 and 32 iv Whether interferenceat this stage1S called for47 11 We now proceed to consider the said ItI Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 298 WP No98 of2010 9cOM l l l 7J Re i1 12 Rule 14 of the 1959 rules providesfor relaxation which lS as under Where the Government is of the opinion that it is necessary or so to do lt 1 may by order for reasons to be recorded lIl 1 3 writingrelax any of the of these 0 C Rules with respectto ny class or category C5 ofpersonSe 99 Z No doubt the words used lll above rules are that m C relaxation is for a class or categoryof persons it is well oll settled that a singleperson can also constitute a class or am category Z 13 Article 16 of the Constitution providesfor equalityof to all citizens 1n matters relating to under the State At the same tlm reasonable classification 1S Every classiflcation results in inequalitybut if the inequality lS about on some sound legalbasis the same 1S notviolative ofArticle 16 rlJ Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 299 WPN0298 of2010 OcMO 12 1 14 The power ofrelaxation beingexception to the generalrule has to be exercised only lll cases and exerclse of such power must meet the test of Article 14 Power of relaxation cannot be arbitrarily exercised Interference 1S if exerclSe of 1 tr powerls arbitraryor illegal Once power exists and lS 0 C exercised bonafide free playin jointshas to be allowed C5 and interference by the Court will be only for Z compelling reasonSe NormallyCourt does not interfere m Q with resal to allow relaxation 1 eference may be made to some Ieadlllg 08 on the point amw Z i Raunaq International Certain flexibility Ltde Ve IVeRe has to be allowed 111 Construction Ltd and adminstrative others1999 1 SCC decision making 492 Para 23 ii Sandeep Kumar Power of relaxation Sharma Ve State of under Rule 14 was Puniab and others upheld as lt was 199710 SCC 298 Para intended to mitigate 14 hardshipln special and deserving Sltuatlons ee 4 Ii Ashok Kumar Uppal Followed the and others Ve State of principlelaid down J0K and others 1998 IIl SandeepKumar 71 Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 300 WP No298 of2010 6OcMl 13 1vl 4 SCC 179 Paras 2629 Sharma supra iv Arun Kumar and to others v Union of India Class I servlce to and others 2007 5 the kin of a police SCC 580para7 offlcer who became Vlctlm to a terrorlst attack was 2 v Premium Granites and from another Ve State of generalrule could 1 Tamil lVadu and be allowed 111 othersl 994 2 SCC certaln sltuatlOIlSe 0 691para50 C vi State of Karenataka Power of and another Ve classiflcation and C5 Buvarna Malini and selection could be another 200 1 1 SCC for being glven 728 para 9 exercised in fair and Z reasonable manner vii State of Karnataka and Power of relaxation another VSe could be exercised ReVivekananda SwamV9if the power exlsts Oll 2008 5 SCC 328 para and exercised 1S 25 fairly 7 viii ReNeNaniundappa Ve Power of relaxation Z TThimmaiah and could not bc another 1972 1 SCC exercised to llullify 409Paras23 ruleS State of Orissa and others Ve Sukanti Mohapatra and others 19932 SCC486 para8 Surai Parkash Gupta and others v State of Jammu Kashmir and others 2000 7 SCC 56 1 Para 29 11 Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 301 WP No98 of2010 OcON 14 1 ix Ramana Davaram Power of public Shettv Ve International authority1S not like Airport Authoritv of powerof a private India AIR 1979 SC person The public 1628 authority has to exerclse lts power Kasturi Lal Lakshmi 111goodfaith and OIl Reddv v State of J K lawful and relevant 1980 4 SCC 1 groundsof public m lnterest Bhikhubhai Vithlabhai Patel Ve State of 0 Guiarat2008 4 SCC C 144 C X SeGeJaisinhani Ve When power 1S Union of India AIR conferred Oll 1967 SC 1427 executlve authority 5 Z the same must be confined within clearly defined limits and decision 045 should be made by application of known principles Z and rules and such decision should be tl xi SPartap Singh Ve State In exerclse of of Puniab AIR 1964 SC power of judicial 72 revlew court can see that Executive Hochtief Gammon Ve acts lawfully and State of Orissa and within the limit of others AIR 1975 SC lts power 2226 Khudiram Das Ve State of WB AIR 1975 SC 550 J Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 302 WP No98 of2010 OcM 15 16 Kumari Shrilekha Vidvarthi etc Ve State of UP and others AIR 1991SC 537 16 In the presentcase power has been exercised m C lIl favour of No2 on the ground 0 C of his courage lIl dealingwith terrorism and I C 111favour of No3 on account of his having shown distinction lIl at nationallintemational Z levels There is nothingto show that the basis for grant of relaxation did not exist The of power exerClSe ln 08 favour Nos 2 and 3 is not thus liable to be Z interfered with As regardsclaim of the petitioner01 exerclse of similar power of relaxation in his favour we are ofthe VlCW that normallythe Court does not 1SSue mandamus for grant of relaxation and if the petitioner makes out a case for relaxation it is for the concemed to consider the same There lS ll O groundto set aside exerClSe of power of relaxation lIl favour of Question is thus answered Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 303 WP N0298 of2010 600M9 16 1 againstthe petitionerand in favour of Nos2 and 3 Rel ii 17 It 1S clearom Rule 6 ofthe 1959 Rules that apart from of there lS m t of selection procedurebeingfollowed In 0 C the present case Public Service Commission was C consulted and promotion of was Z Grant of seniorityafer approvalby the r Public Service Commission was upheldbyths Court 111 TuIsi Ram supra 111similar circumstances This being 08 the positioneven thoughthe could be 7 Z considered for regular only by follow of bringingthem on list G 1n vlew of order r3 passedin consultation with Public Service Commission seniorityof could be taken to have been which does not call for interferenceat this stageQuestion is thus answered Il Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document CWP No98 of2010 6085M1 17 againstthe petitionerand ln favour of the Re iii 18 In Vlew of our flndingson Questions and ii we upholdthe Vlew of the State Govemment and 1 the CAT The question 1S answered accordingly 0 C Re iv C 19 No interference 1S called for at this stage Z relaxationhavingbeen granted24 years agoand further C promotionhavingbeen grantedto Nos 2 and 3 08 20 Accordinglywe do not f1nc1any groundto 3 am Z interfere with the Vlew taken by the Central Administrative Tribunal 21 The petition1Sdismissed 1 1 Adarsh Kumar Goel Judge 11ok February 2010 Singh gs Judge Y 1 b 0 l 8 1 8 It 1 1 Suresh Kumar 2014.04.25 12: 35 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document