IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THIS THE 10TH DAY OF SEPTEMBER, 2009 W.P.No.4177 of 2009 Between: Y.V.Ravindranath ….PETITIONERS and 1. The Union of India represented by the Director General, Department of Posts, M/o Communications & Information Technology, Dak Bhavan, Sansad Marg, New Delhi – 110001 and others. …RESPONDENTS THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR W.P.No.4177 of 2009 ORDER:( Per HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR) This writ petition is filed by the Union of India questioning the order of the Central Administrative Tribunal in O.A.No.383 of 2007 dated 15.07.2008. The facts, in brief, are that the respondent herein was originally appointed to the ED cadre and was promoted to the cadre of Postal Assistant on 13.10.1988. He was confirmed in the said post in June 2000. After he passed 3 years diploma course and qualified himself with the AMIE (Civil Degree), the applicant was selected to officiate as Junior Engineer (Civil) on deputation with effect from 09.02.2001. The respondent submitted number of representations requesting the authorities to conduct departmental examinations. But, however, the examinations were not conducted. Ultimately, while the respondent continued to work as Junior Engineer on deputation, a notification, dated 18.04.2007, for filling up of a large number of vacancies i.e. 65 posts was issued by the 1st petitioner herein. The said notification specifically stipulated that the departmental examination for promotion to the post of Junior Engineer (Civil) & Junior Engineer (Electrical) will be held on 21st and 22nd July, 2007. The eligibility criterion for the said examination so far as is relevant here is under para-4(b) which is as follows. “(b) All Group ‘C’ employees of Civil Wing and Postal Wing of the Department including the cadre indicated at (a) above possessing a diploma of 3 years’ duration from a recognized Institution in Civil/Electrical Engineering and having put in a minimum of 3 years’ regular service in the Department as on 1st July, 2007 shall also be eligible to appear in the departmental examination for promotion provided they are not above 40 years of age as on 01.07.2007. In case of SC/ST candidates, the age is relaxable to 45 years as on 01.07.2007. The said notification was questioned by the respondent on the ground that the condition that a candidate should not be above 40 years of age as on 01.07.2007 seriously effects his right to be considered for the said post on the ground that the petitioners themselves have delayed selection for a long number of years and when the respondent crossed his 40 years of age as on 19.06.2004 the examination is now being held and, in spite of the fact that the respondent is holding the very same post on deputation from 2001 onwards and he would not be entitled to be considered on the ground of having crossed 40 years of age. The said O.A. was opposed by the petitioners by filing a counter affidavit in which it was contended that the notification was issued to fill up vacancies in respect of 65 posts of Junior Engineer (Civil) and 15 posts of Junior Engineer (Electrical). It was also contended that the respondent herein cannot, as a matter or right, seek that he should be appointed to the said post. It was also contended that merely because he crossed the age limit prescribed is no ground to challenge the recruitment conditions which are in accordance with the rules. The Tribunal, on considering the rival contentions on either side and keeping in view the inaction on the part of the petitioners herein in not conducting the departmental examination for a long number of years and in spite of the fact that the respondent herein has been working for more than 7 years on deputation in the same post and for no fault of his he had been deprived of the opportunity to compete for the promotional quota post, pending the said O.A., directed the petitioners herein to permit the respondent herein to appear for the departmental examination in pursuance of the impugned notification and it was also stipulated that the ultimate selection would be subject to the outcome of the O.A. The Tribunal felt that since the department failed to conduct examination every year despite vacancies being available and candidates being available, the stipulation of maximum age limit for the departmental candidates is clearly illogical. The Tribunal also found that since the respondent herein was working in the said post for more than 7 years, exclusion of his candidature from consideration on the ground of age bar is illegal and consequently declared the stipulation of the maximum age limit in the notification as illegal and invalid and consequential directions were issued to the department to include the name of the respondent herein in the list of selected candidates on the basis of performance in the departmental examination held on 21/22.07.2007. With the direction as above since the O.A. was allowed declaring the maximum age limit under the impugned notification as invalid, the petitioners have approached this Court by this petition questioning the aforesaid view of the Tribunal. We have heard the learned Assistant Solicitor General of India for the petitioners and Sri Siva, learned counsel for the respondent. The learned Assistant Solicitor General of India has brought to our notice the Rules which regulate the method of recruitment to the post of Junior Engineer (Civil) in Civil Wing of the Department of Post, namely the Department of Post Junior Engineer (Civil) in Civil Wing Rules, 1995 (for short – ‘the Rules’). The aforesaid rules are framed by the President of India in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The aforesaid 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 the number of posts, their classification and the scales of pay attached thereto shall be as specified in columns 2 to 4 of the schedule annexed to the Rules. Further, Rule 3 prescribes the 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. The schedule so far as Group ‘C’ posts of Civil Wing is concerned in Column 12(2) it is mentioned as follows: “All Group ‘C’ employees of Civil Wing and Post Wing of the department including the cadres, indicated above at (1) possessing a Diploma of 3 years duration from a recognized institution in Civil Engineering and having put in a minimum of 3 years regular service in the department as on 1st July of the year of Departmental examination shall also be eligible to appear in the departmental examination for Promotion, provided they are not above 40 years of age, as on the crucial date.” The learned Assistant Solicitor General of India, therefore, submits that since the aforesaid rules being statutory provisions and since the respondent had not questioned those Rules, the order of the Tribunal in declaring the age limit prescribed under the said Rules as illegal and invalid is clearly erroneous and unsustainable. Further, the learned Assistant Solicitor General of India has submitted that no employee can claim a Promotion to a further post as a matter of right and his right is only for consideration of his case for the said Promotion. The non-holding of departmental examinations, therefore, would not amount to making the respondent eligible to compete for the said Promotion or Post irrespective of the age bar which he has crossed. He, therefore, submits that the view of the Tribunal that the said maximum age limit of 40 years is illogical or is otherwise arbitrary cannot be sustained. The learned Assistant Solicitor General of India also relied upon the decisions of the Apex Court in P.U.JOSHI v. ACCOUNTANT GENERAL[1] and UNION OF INDIA AND OTHERS v . MAJJI JANGAMMAYYA AND OTHERS[2] in support of the proposition that no employee has a right to have a vacancy in the higher post filled as soon as the vacancy occurred and that the Government had the right to keep the vacancy unfilled as long as it chooses. He also relied upon the other decision for the proposition that the determination of conditions of service, alteration thereof by amending rules, constitution, classification or abolition of posts, cadres or categories of service, amalgamation, bifurcation of departments, reconstitution, restructuring of the pattern etc., all pertain to executive policy and within exclusive discretion of the State, subject to limitations and restrictions envisaged in the Constitution, and neither the Tribunal can interfere with the exclusive discretionary jurisdiction of the State nor under the jurisdiction of the judicial review can do away with the permissible age limit restriction under the statutory rules. Sri Siva, learned counsel appearing for the respondent, contends that the petitioners have not taken up the necessary recruitment from the year 1995 to till 2007. Many employees, including that of the respondent herein, who were otherwise eligible and who have worked in the said post, have been unreasonably denied the benefit of the said Post for no fault of theirs. The learned counsel for the respondent has drawn our attention to the fact that the respondent was working in the said Post on deputation from 2001 onwards and that he crossed the prescribed age limit of 40 years on 19.06.2004 and that the department had issued the notification on 18.04.2007 fixing the maximum age limit of 40 years as on 01.07.2007 depriving the respondent an opportunity to compete for the promotional quota post and also in spite of the fact that he has been qualified to hold the said Post as per the result of the written test to which he was allowed to appear as per the interim orders of the Tribunal. He, therefore, submits that the Tribunal had very rightly considered the entire matter and for the inaction of the department has found it not appropriate to punish the respondent and granted the benefit to the respondent as his case being a special case. The learned counsel, therefore, submits that keeping in view the passage of time so far and the principles of substantial justice the case of the respondent may be considered. We have considered the submissions made above. As would be noticed from the extracts of the relevant rules quoted above it is clear that they are statutory rules framed under Article 309 of the Constitution of India. The validity of the Rules was not in issue before the Tribunal. The said Rules being statutory, invalidation of those Rules is not warranted on the facts and circumstances of the case. The Tribunal has failed to notice that a right to be considered for the promotional post alone is what could have been claimed by the respondent. The right to be considered for the promotional post accrues only when the department decides to fill the vacancy by way of recruitment by issuing a notification. As held by the Supreme Court i n P.U.JOSHI case (1 supra), referred to above vide para-58, no employee has any right to have a vacancy in the higher post filled as soon as the vacancy occurs and the Government has the right to keep the vacancy unfilled as long as it chooses. Further, in MAJJI JANGAMMAYYA AND OTHERS case (3 supra) the Supreme Court held that questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunal, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. The Rules dealing with eligibility criteria which include the age limit, therefore, having been prescribed by the Government of India under its exclusive jurisdiction, the Tribunal could not have substituted its views that the said age limit ought not to be applied while considering the case of the respondent. In that view of the matter, we are not persuaded to accept the view as taken by the Tribunal and the invalidation of the said age limit of 40 years as was done under the impugned order is clearly unsustainable and is liable to be set aside. However, it cannot be denied that the respondent has been working in the said post of Junior Engineer (Civil) in Civil Wing on deputation from 2001 onwards and, at this length of time, if he is denied consideration on the ground of crossing of age limit, it would amount to great frustration so far as the respondent is concerned, particularly, for no fault of his. We have also seen that the Rules provide for a Power to relax under Rule 5 which is 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.” The Power to relax provided under the Rules is meant to relieve the employees of extreme hardship and to do justice and to ensure that they should not suffer any injustice. It is a fact that no departmental test was held over a decade and on account of the permissible age bar under the Rules many eligible employees would become disqualified to hold the said post. Keeping in view these facts and the circumstances peculiar in the present case that respondent is working in the promotional post from 2001 coupled with the fact that there are about 65 vacancies to be filled up out of which only 7 candidates including the respondent were qualified and out of the 7 qualified candidates only the respondent suffers from exceeding the permissible age limit. This itself shows that there are large number of vacancies and even after conducting examination sufficient candidates were not available. Keeping in view these circumstances, we are of the opinion that the interests of justice would be served if the petitioners are directed to consider the case of the respondent under Rule 5 of the Rules extracted above so that they can grant proper relaxation to the respondent in the facts and circumstances of the case and the respondent be given an appropriate posting in the said selection for which he has been already qualified in the written test. However, in the event of relaxation being granted and the respondent qualifying to hold the said post, he shall stand last among the selected candidates in the seniority. The respondent is given liberty to make a representation seeking the age relaxation within a period of two weeks from today and the petitioners shall consider such representation within a period of four weeks thereafter and pass appropriate orders. With the above observations, the order of the Tribunal in O.A.No.383 of 2007 dated 15.07.2008 is set aside and the writ petition is accordingly disposed of. There shall be no order as to costs. __________________ V.ESWARAIAH, J ____________________________ VILAS V.AFZULPURKAR, J Date: 10.09.2009 CVRK Note: Office to issue C.C. in one week. B/o Cvrk [1] (2003) 2 SCC 632 [2] AIR 1977 SC 757