IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THIS THE 10TH DAY OF SEPTEMBER, 2009 W.P.Nos.13573 & 20851 of 2008 and 1010 of 2009 W.P.No.13573 of 2008: Between: 1. The Director General, rep. by Union of India, Department of Posts, Dak Bhavan, New Delhi and others. ….PETITIONERS and A.V.V.Baleswara Rao …RESPONDENTS W.P.No.20851 of 2008: Between: 1. The Director General, rep. by Union of India, Department of Posts, Dak Bhavan, New Delhi and others. ….PETITIONERS and A. Radhakrishnudu …RESPONDENTS W.P.No.1010 of 2009: Between: 1. The Director General, rep. by Union of India, Department of Posts, Dak Bhavan, New Delhi and others. ….PETITIONERS and I. Satyanarayana …RESPONDENTS THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR W.P.Nos.13573 & 20851 of 2008 and 1010 of 2009 COMMON ORDER:( Per HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR) The writ petition in W.P.No.13573 of 2008 is filed by the petitioners questioning the order of the Central Administrative Tribunal in O.A.No.88 of 2006 dated 13.02.2008. The other two writ petitions viz., W.P.No.20581 of 2008 and W.P.No.1010 of 2009 are similar in nature and arise out of similar O.As., wherein the Tribunal has followed the order passed in O.A.No.88 of 2006 which is under challenge in W.P.No.13573 of 2008. We shall, therefore, first deal with W.P.No.13573 of 2008. The applicant in O.A.No.88 of 2006 i.e. the respondent herein is aggrieved by the non-consideration of his case for promotion to the post of Postman under seniority quota. The facts, in brief, in O.A.No.88 of 2006 are as follows. The applicant was appointed as Extra Departmental Delivery Agent in the Branch office of Vadlamannadu a/w Kavutavaram SO in Machilipatnam Division with effect from 01.01.1975. The applicant alleged that he is about to cross the age of 50 years by 15.07.2004 and that in spite of his submitting number of representations, including the last one being dated 06.05.2004, his case is not being considered for promotion to Group-D/Postman vacancy on seniority basis. The respondent further contended that no steps are being taken in spite of the instructions of the Director General and several representations and directions of the Tribunal in O.A.No.723 of 2004 dated 29.11.2004 wherein the department was directed to conduct a review of the vacancy position within a period of two months and to consider the case of the applicant for promotion in case there are vacancies to be filled. A notification dated 22.12.2005 was issued by the department for filling up the vacancies for the year 2003-04 stipulating that the examination would be conducted on 29.01.2006. The respondent also applied for the said examination and his candidature was rejected by the department on 19.01.2006 on the ground that he was over-aged and, therefore, cannot be allowed to appear for the examination. Aggrieved thereby the respondent filed O.A.No.51 of 2006 seeking a direction that the department be directed to permit him to appear for the examination. The Tribunal granted the interim relief to that effect. Later, the department issued a notification dated 22.12.2005 stating that the seniority quota of GDS officials was also proposed to be filled up by way of departmental promotion by constituting a Departmental Promotional Committee. At that stage, aggrieved by the action of the department in not including his name for consideration on the ground that he had crossed 50 years of age, the respondent filed the present O.A. seeking to set aside that part of the condition of the age limit of 50 years stipulated in the recruitment rules and consequently to direct the respondents i.e. the petitioners herein to consider the case of the applicant/respondent herein. The Tribunal, on consideration of the rival contentions, had noted that the recruitment rules particularly columns 5 to 14 of the Department of Posts (Postman/Village Postman and Mail Guards) Recruitment Rules, 1969 (for short – ‘the Rules’) which deal with method of recruitment, age limit, qualification and scale of pay relating to the said post. So far as is relevant for the present purpose, Column Nos.11 and 7 are extracted hereunder. Those rules were subsequently amended by notification No.44-29/94-SPB.I dated 30.01.1995 and the same were also given hereunder. As per Column No.11, the vacancies to the Postman/Village Postman shall be filled as follows: “1. 50% by promotion, failing which by Extra Departmental Agents on the basis of their merit in the Departmental Examination. 2. 50% by Extra Departmental Agents of the recruiting division or unit, in the following manner, namely:- (i) 25% from amongst Extra Departmental Agents on the basis of their seniority in service and subject to their passing the Departmental Examination failing which by Extra Departmental Agents on the basis of merit in the Departmental Examination; (ii) 25% from amongst Extra Departmental Agents on the basis of their merit in the Departmental Examination.” After amendment, the item 2(i) extracted above was substituted as follows: “3. (b) against the posts of Postman/Village Postman, in column 11 for the item 2(i), the following shall be substituted, namely- “2(i) 25% of the vacancies of Postman shall be filed up from amongst Extra Departmental Agents with a minimum of 15 years of service on the basis of their seniority, failing which by Extra Departmental Agents on the basis of departmental examination.”” As per Column No.7, the age limit for Direct Recruitment is as follows: “(i) Between 18 and 25 years (Relaxable for Government servants up to 35 years in accordance with the instructions issued by the Central Government. (ii) Extra Departmental Agents who have been recruited on or before 16.11.82 shall be eligible, if they are within 42 years (47 years for SC/ST) of age and those appointed after 16.11.82 shall be eligible, if they are within 35 years (40 years for SC/ST) of age and have put in five years of regular and satisfactory service.” After amendment, item (ii) extracted above was substituted as follows: “(ii) For Extra Departmental Agents, the upper age limit shall be 50 years with 5 years relaxation for the Scheduled Castes/ Scheduled Tribes candidates as on 1st July of the year in which the examination is held and he should have completed a minimum of 5 years of satisfactory service as on 1st January of the year in which the examination is held.” The contention of the respondent herein before the Tribunal was that in view of the fact that under the amended Rules, 25% of the vacancies of Postman have to be filled up amongst Extra Departmental Agents with a minimum of 15 years of service on the basis of seniority and no examination is necessary for filling up the said quota and that there is no requirement of upper age limit prescribed under the amended Rule 7(ii). The learned counsel appearing for the respondent also submits that the very basis of prescribing the upper age limit has no application as 25% of the vacancies are required to be filled up only by following seniority. He also submits that no examinations are being held for filling up this quota of 25% based on seniority and as such the very Rule 7(ii) of the Rules will have no application so far as this part of the recruitment is concerned. The Tribunal has accepted the aforesaid interpretation and has held that since examination is not being conducted to the extent of this quota of 25%, the relevance of upper age limit as on 1st July of the year in which the examination is to be held has no relevance. The Tribunal also found that the condition of minimum service of 15 years is the only condition applicable for the purpose of filling up this quota of 25% of the vacancies as per the amended notification and if a candidate is eligible to be considered on the basis of the seniority, the age limit should not be put against him for excluding him from consideration. Taking a view in that manner, the Tribunal has allowed the O.A. by directing the department to consider the cases of the applicant by constituting a DPC by ignoring the fact that the applicant has cross the 50 years of age. The said order is in challenge in this writ petition at the instance of the department. The learned Assistant Solicitor General of India has brought to our notice the pre-amended as well as the amended Rules. The columns 11 and 7 which underwent amendments are part of the Schedule to the Rules. The aforesaid rules are framed by the President of India under the proviso to Article 309 of the Constitution of India and these rules provide the number of posts, classification, scale of pay, method of recruitment, age, qualification and all other matters relating to the said post. Rule 2 of the Rules provides that number of posts, their classification and scale of pay attached to that post shall be as specified by columns 2 to 4 of the schedule annexed to the Rules. Further, Rule 3 prescribes method of recruitment, age limit, qualifications and others matters relating to the said posts shall be as specified by columns 5 to 14 of the schedule. Columns 7 and 11 with which we are concerned deal with different aspects relating to the said recruitment. While column 7 deals with age limit for direct recruits, column 11 deals with method of recruitment whether by direct recruitment or by probation or by deputation/transfer & percentage of the vacancies to be filled by various methods. It is not in dispute that previously the age limit prescribed under the said column 7 was 42 years for those recruited on or before 16.11.1982 and 35 years for those recruited after 16.11.1982. This dichotomy of different ages as on 16.11.1982 has however been given up and new column 7(ii) is substituted. In the amended Rules, the requirement of upper age limit of 50 years is prescribed. For a candidate to be eligible, he should be below 50 years of age and should have completed a minimum of 5 years of satisfactory service as on 1st January of the year in which the recruitment is to be made. The amended rule stipulates as follows: “(ii) For Extra Departmental Agents, the upper age limit shall be 50 years with 5 years relaxation for the Scheduled Castes/ Scheduled Tribes candidates as on 1st July of the year in which the examination is held and he should have completed a minimum of 5 years of satisfactory service as on 1st January of the year in which the examination is held.” The contention of the learned counsel for the respondent and the one which was accepted by the Tribunal is that, under column 11 as amended, 25% of the posts are to be filled up from Extra Departmental Agents with 15 years of service on the basis of seniority and so far as this category is concerned, column 11 does not stipulate about the examination or the date of examination, no such examination is to be conducted for this recruitment which is purely based on the seniority. The Tribunal, therefore, held that the requirement of age limit of 50 years is not applicable to this category of appointees as they take the appointment only based upon the seniority. The fallacy in the aforesaid argument is evident from the fact that each of the columns under the schedule are required to be fulfilled by the candidate who is seeking recruitment under the said rules. As the qualification and other requirements are necessary to be fulfilled the method of recruitment as well as the age, qualification are separate and mandatory requirements which a candidate must fulfill in order to get qualified under the Rules. If the requirement of upper age limit prescribed under column 7 is to be ignored for the purpose of recruitment only based upon the method of recruitment, the very purpose of Rules 2 and 3 of the Rules would get defeated. As mentioned above, while Rule 2 of the Rules deals with the number of posts, their classification and scale of pay of each post, Rule 3 thereof deals with method of recruitment, age-limit, qualifications and other matters relating to the said post and while the former is prescribed under columns 2 to 4, the latter is prescribed under columns 5 to 14. Fulfillment of each of the said requirement is, therefore, being necessary, it cannot be said that the requirement under column 7 relating to the age limit has to be dispensed with for considering the 25% quota on seniority. The contention of the learned counsel for the respondent in that regard, therefore, cannot be accepted as it will amount to hold that the recruitment can be made by overlooking the requirement in column 7. Consequently, the finding of the Tribunal recorded under the impugned order that the upper age limit requirement under column 7 has to be ignored is not justified. This aspect can also be examined from another angle. Even under the amended rules, though 25% of the quota is to be filled up on the basis of the seniority alone without insisting or subjecting those candidates for the examination, another 25% of the same category is subjected to examination. The requirement of age limit with regards this category of 25% taking the departmental examination is not disputed and it cannot be said that there is no upper age limit applicable to this 25% taking the examination. But the same is not said to be inapplicable to the 25% which is to be filled only on the basis of seniority. There cannot be any further classification with regard to the eligibility among the persons situated in a similar situation. In this view of the matter also the finding of the Tribunal is not sustainable and is liable to be set aside. Consequently, the impugned order is liable to be set aside and the writ petition deserves to be allowed. However, it cannot be disputed that this respondent is working as Extra Departmental Agent from 01.01.1975 and even though recruitment is taken up in 2006 his claim is not being considered only on the ground that he has crossed the upper age limit of 50 years. The hardship in denial of a just claim with respect to the respondent needs to be taken into consideration by the petitioner particularly keeping in view the Power to relax given under Rule 5 of the Rules which provides as follows. “5. Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons.” In the present case, the hardship to the respondent and the interests of substantial justice deserve that the petitioners be directed to consider the case of the respondent for the purpose of relaxing the upper age limit condition in terms of the power to relax mentioned above. In a somewhat similar situation in W.P.No.4177 of 2009 by order dated 10.09.2009 we have already directed that the case of the respondent therein to consider for grant of age relaxation and in this matter also we are of the view that a similar direction is warranted, as similar situation exists. The writ petitioner is, therefore, allowed. However, the petitioners are directed to consider the case of the respondent for the purpose of relaxation of upper age limit requirement and for that purpose the respondent shall make an appropriate application within a period of two weeks from today and the petitioners shall consider and pass appropriate orders thereon within a period of four weeks thereafter. No orders as to costs. The other two writ petitions i.e. W.P.No.20851 of 2008 and W.P.No.1010 of 2009 are based upon the order of the Tribunal in O.A.No.88 of 2006. Since the said order of the Tribunal is reversed by us, a similar order with a similar direction as herein shall be issued in those two writ petitions also. __________________ V.ESWARAIAH, J ____________________________ VILAS V.AFZULPURKAR, J Date: 10.09.2009 CVRK Note: Office to issue C.C. in one week. B/o cvrk