SANDEEP KUMAR SHARMA A v.

STATE OF PUNJAB AND ORS.

FEBRUARY 24, 1997

[MADAN MOHAN PUNCHHI AND K.T. THOMAS, JJ.] B

Service Law-Relaxation in recmitment mles-Recmitment of police personnel-Relaxation of physical fitness requirement on the basis of a policy decision of the Government to show pecial consideration towards families affected by terrorism-Appellant was the only be11eficia1y of relaxa- C lion-Whether such a relaxation is vali~He/d : Yes.

Punjab Police Service Rules, 1959-Rules 7 and 14.

Appellant was the brother of an Indian Police Service ollicer posted in Punjab who had rendered ellicient and useful service in tackling D terrorists' menace in Punj.ab. The appellant qualified the written test conducted by the Punjab Public Service Commission for the post of Deputy Superintendent of Police/Deputy Superintendent of Jail/District Probation Officer along with respondent No. 3. The appellant was, however, short in height by 1.20 ems. from the minimum height of 167.5 ems. prescribed E under Rule 7(i)(iii) of the Punjab Police Service Rules, 1959. The Government relaxed the criterion of minimum height in the case of the appellant in view of its policy dedsioa to show special consideration towards relatives of those who had either suffered due to terrorism or had faced terrorism boldly and had contributed towards overcoming it. As a result of the relaxation given in favour ol' the appellant, the appellant was F appointed to the post of Deputy Superintendent of Police, whereas respondent No. 3 could be selected only for the post of Deputy Superintendent, Jail/District Probation Oflicer. The appellant, in fact, was the only candidate who could. avail the benefit of the relaxation given by the Government pursuant to its policy decision. d

As per the provisfons of the Punjab Police Service Rules, 1959, the minimum physical standard prescribed in sub-clause (iii) of clause (i) of Rule 7 of Punjab Police Service Rules 1959 could not be relaxed except with special sanction of the Government in accordance with the second proviso to the said Rule 7 (i).

A Respondent No. 3 Challenged the appointment of the appellant in the

High Court and the High Court set aside the appointment holding that it wasan act of favouritism oftheGovernment as the appellant was the sole beneficiary of the relaxation.

Allowing the appeal against the order of the High Court; this Court

HELD : I.L High Court should not have upset the appointment made in marginal relaxation of the physical standards prescribed in the case of the appellant. [412-E]

1.2. The worthiness in formulating a policy by the Government of C Punjab for showing recognition to the services rendered by those Police personnel who bravely faced the dastardly acts unleashed by the terrorists cannot be disputed. If so, there is nothing improper in giving special consideration to the kith and kin of such policemen and those who suffered on account of terrorists' activities.· [ 409-DE]

1.3. The power of relaxation even if generally included in the service rules could either be for the purpose of mitigating hardships or to meet special and deserving situations. The rule of relaxation must ge't , a prag-. matic construction so as to achieve effective implementation of a good policy of the Government. Of course arbitrary exercise of such power innst be guarded against. But a narrow construction is likely to lfeny benefit to the really deserving cases. [411-G]

J.C.· Yadav & Ors. v. State of Haryana & Ors., [1990] 1 SCR 470, relied on.

F District Collector & Chainnan, Vizianagaram v. Tripura Sundari Devi, JT (1990) 2 SC 169 and Hoshiar Singh v. State of Haryana & Ors., JT (1993) S SC 63, distinguished.

2. Appellant cannot be blamed for being the only candidate available seeking relaxation of physical standards. The same benefit could also have G ensured to anyone else situated in the same position as the appellant, had there been any. Policy-wise it is not possible to think that appellant would have been the only kith and kin of those who suffered on account of the activities of the terrorists in Punjab or those who faced terrorism bravely.

[410-G-H] H Atlas Cycle Industries Ltd. Sonepat v. Their Workmen, [1962] Supp. 3

S.K. SHARMA v. STATE (THOMAS, J.] 407

SCR 89, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1586 of 1997.

From the Judgment and Order dated 3.9.96 of the Punjab & Haryana

High Court in W.P. No. 367 of 1996.

P.P. Rao, Ms. Rachna Srivastava and Mrs. Rani Chhabra for the Appellant.

Jagdish Kehar, Hemant Saini, Sanjay Sarin and Ashok Mathur for the Respondent No. 3.

R.S. Suri (NP) for Respondent Nos. 1-2.

The Judgment of the Court was delivered by

THOMAS, J. Leave granted.

Appellant was one of the candidates before the Punjab Public Service Commission for selection to the cadre of Deputy Superintendent of .Police. He was found fit in all respects except the height factor for which

he was found deficient by 1.20 ems. However, he was selected as Government of Punjab relaxed the requirement of physical fitness as for him in E special consideration of the meritorious service rendered by his brother (one Satish Kumar Sharma, IPS) during the time when State Government was involved in a massive exercise for containing terrorism in Punjab. Third respondent challenged the said selection as he could secure only a post of Deputy Superintendent of Jail. A Division Bench of the Punjab and F Haryana High Court quashed the selection of the appellant as Deputy Superintendent of Police and directed the Government to make appointment in the consequential vacancy from among the candidates who have been included in the merit list if petitioner had not been selected. The said judgment is now under challenge before us.

Some more facts are necessary to decide the question raised before us. Punjab Public Service Commission published an advertisement on 12.6.1993, as follow up of a requisition made by the Government of Punjab, inviting applications for 20 posts of Deputy Superintendent of Police and

6 posts of Deputy Superintendents of Jail/District Probation Officer. Ap- H

A pellant and third respondent were among the various candidates who submitted applications for the aforesaid posts. In the written test conducted on 25.2.1994 appellant came out successful, but in the physical measurement (fitness) test conducted on 6.5.1994, appellant was found short in height by l.20 ems. In the meanwhile, Government formulated a B policy on 6.5.1994 to show special consideration towards "relatives of those who have either suffered due to terrorism or have faced terrorism boldly and have contributed towards overcoming it". It appears that Government felt that "on account of their background and circumstances such individuals are bound to be more dedicated and committed". When appellant was. found deficient to fit in with the requirements very marginally he C moved the Government for relaxation of the specification regarding height in his case. Government passed an order on 14.5.1994, the operative part of which reads thus :

In this view of the matter it has been considered to give minor relaxation in physical standard provided such persons possess prescribed qualifications and qualify in the written test conducted by the Punjab Public Service Commission and are suitable in all , . other respects. The latest request dated 13.5.1994 of Shri Sandeep Kumar Sharma (younger brother of Shri Satish Kumar Sharma, IPS) who is presently posted as SSP, Ferozepur and who has . rendered useful service in tackling terrorism and bringing normalcy for giving relaxation in height 1.20 ems. for recruitment to tlie post . ' of Deputy Superintendent of Police has been considered and acceeded to. "

Thereupon, appellant was called for viva-voce and he was included

m the list of selected candidates and was later appointed as Deputy Superintendent of Police on 10.8.1994. Third respondent was selected with first rank in the list for the post of Deputy Superintendents, Jail/District Probation Officers and he was appointed as Deputy Superintendent, Jail on 8.9.1994.

Third respondent and another person challenged the selection and appointment of the appellant before the High Court mainly on the ground that appellant did not fulfil the requirement enumerated in the advertisement issued by Punjab Public Service Commission and that the Govern- H ment have no power to relax without specifically indicating in the

advertisement itself that specifications are liable lo be relaxed. Another A ground taken up was that power of relaxation contained in Rule 14 of Punjab Police Service Rules 1959 ('Service Rule' for the short) cannot be invoked in the case of one individual.

The Division Bench of the High Court examined the file relating to the impugned selection and found that relaxation was granted by the B Government only in the case of appellant and that the policy was evolved by the Government solely to help the appellant which is nothing but an act of sheer favouritism. Learned Judges of the High Court observed that Rule 7 and Rule 14 of the Service Rules cannot be regarded as empowering the Government to grant relaxation in physical standard as a measure of C favouritism. On the above premises the Division Bench quashed the selection of the appellant and directed the State Government to fill up the vacancy within thirty days.

Before we proceed to consider the merits "of the case, we may point out that none of thi:: parties before us disputed about the worthiness in D formulating a policy by the Government of Punjab for showing recognition to the services rendered by those police personnel who bravely faced the dastardly acts unleashed by the terrorists. If so, there is nothing improper in giving special consideration to the kith and kins of such policemen and those who suffered on account of terrorists, activities. we may also point E out that before the High Court neither the Government nor the third respondent disputed the factual position that Satish Kumar Sharma, (appellant's brother) had rendered efficient and useful service as a Police Officer in tackling terrorists' menace. (of course, a faint attempt was made by the third respondent before us to dispute that fact, but as he did not raise any dispute on that aspect before the High Court, we are not inclined F to countenance the said contention now).

Ruic 7 of the Service Rules stipulates thc'qualifications necessary for direct recruitment to the service. Sub-clause (iii) of clause (i) of Rule 7 requires that the candidate should have "a minimun: height of 5' 7" (167.5 G ems) and normal chest measurement of 33" with expansion of 1-1/2". The second proviso to clause (i) is important and it is extracted :

"Provided further that the physical standard prescribed in subclause (iii) shall not be relaxed without special sanction of the Government." H

 Rule 14 contains the general power of Government to relax rules. It reads thus:

"General power to relax rules : Where the 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."

It is clear that while Rule 14 permits relaxation for a class or a category of persons, Rule 7 preserves Government's power to relax the physical standard in individual cases. In the present case Rule 7 is the C appropriate Rule and it was not necessary to embark on Rule 14 at all. But we have noticed that the Deputy Secretary of Home (Government of Punjab) who had sworn to the counter-affidavit before the High Court for the State Government has sought to justify the relaxation made by Government by confining to Rule 14 of the Service Rules alone. Why did he adopt D such a stand when there is a specific Rule which empowered the Government to give relaxation of the physical standard, is something we cannot understand or appreciate. Why should the deponent have by-passed Rule 7 which is so explicit in the context? Any way since the appellant has referred to Rule 7 as the relevant rule we are not disposed to consider the

amplit_ute of Rule 14 in the case.

' The High Court seems to have taken the view that the only beneficiary of the aforesaid relaxation is the appellant and hence considered it an act of favouritism shown to him. According to the learned Judges "the so, called policy was formulated after the result of the written test was announced with the sole object of securing selection and appointment of the aforesaid candidate because without clearing the standard of physical fitness he could not have been interviewed by the Commission.

This, in our opinion, is nothing but an act of sheer favouritism".

Appellant cannot be !:lamed for being the only candidate available G at present seeking relaxation of physical standards. The same benefit could also have enured to anyone else sit.uated in the same position as the appellant had there been any. Policy-se 'it is no~ possible lo tnink that appellant would have been the only kith and kin of thpse who suffered on - account of the activities of the terrorists in Punjab or those who faced H terrorism bravely. Perhaps, in this particular selection appellant happened

/ I

to be the only beneficiary of the policy. Nor can we find any mala fides merely because government evolved the policy on the occasion when appellant approached for relaxation of the standard. The occasion would have provided to the government an opportunity to recapitulate the events and thus to remind themselves of the plight of those families which suffered traumatic experiences when their kith and kin were relentlessly involved in continued operations fighting the 'terrorists who were possessed with highly lethal weapons and using hideouts to strike blitz against innocent people as well as the police force intermittantly. A government may have to act on some occasion for chalking out a particular policy. If any particular occasion has alerted the government to the necessity for taking a policy decision it is hardly sufficient to attribute mala fide or favouritism to the government.

In Atlas Cycle Industries Ltd. Sonepat v. Their Workmen, [1962) Suppl. 3 SCR 89; a Constitution Bench of this Court considered the question whether a policy taken in the wake of an individual's case would offend Article 14 oft.he Constitution as the object then would have been to benefit a particular person. In that case Government of Punjab raised the age of retirement of the Presiding Officers of Industrial Tribunals from 65 to 67 on 3.6.1957. One incumbent Sri AN. Gujral would have attained the age of 65 on 4.6.1957. The Bench repelled the contention and observed thus : "the occasion which inspired the enactment to the statute might be the impending retirement of Sri AN. Gujral. But that is not a ground for holding that it is discriminatory and contravenes Article 14, when it is, on its terms, of general application."

It is useful to refer to the interpretation given to a similar relaxation clause in service law by a Bench of three judges of this Court that it must be liberally considered. (vide JC Yadav and Ors. v. State of Harya11a and Ors., [ 1990) 1 SCR 470. The power of relaxation even if generally included in the service rules could either be for the purpose of mitigating hardships

or to meet special and deserving situations. Such rule must be construed G liberally, according to the learned Judges. Of course arbitrary exercise of such power must be guarded against. But a narrow construction is likely to deny benefit to the really deserving cases. We too are of the view that the rule of_ relaxation must get a pragmatic construction so as to achieve effective implementation of. a good policy of the government.

A Learned counsel for the third respondent has referred to the decisions of this Court in District Collector and Chairman, Vizianagaram v.

Tripura Sundari Devi, JT (1990) 2 SC 169 and Hoshiar Singh v. State of Haryana and Ors., JT (1993) 5 SC 63. The former is relied on by the Division Bench of the High Court in the impugned judgment and the same B in referred to in the latter decision. Those decisions relate to cases where relaxation of the Rule was made by the selection board. This Court observed that when advertisement was silent about relaxation of the standards prescribed therein for selection it was not permissible for the selection board to relax such standards. Those are not cases where relaxation•was made by the Government in exercise of any statutory rule and hence the C ratio in those two decisions is of no use to support the contention of the third respondent.

We have no doubt that if government had thought it fit to afford marginal relaxation in the case of the appellant in terms of Rule 7 in particular and Rule 14 in general by way of implementation of the policy D evolved in recognising the services rendered by the police personnel during the frightful days, it warra.nts no interference from the judicial side. High Court shoula not have upset the appointment made in marginal relaxation of the physical standards prescribed in the case of this appellant.

We, therefore, allow this appeal and set aside the judgment under E challenge. No costs.

B.K.M.

Appeal allowed.