Azmira Bhima v. Union of India & Ors.

1. Allowed, subject to just exceptions and as per extant Rules.

2. The application is disposed of. W.P.(C) 225/2021 & C.M. No.590/2021 (for stay)

3. The petition impugns the order dated 25th September, 2019 of the Central Administrative Tribunal, Principal Bench (CAT) of dismissal of O.A. No.2862/2019 preferred by the petitioner seeking a direction to the respondents to consider the petitioner for appointment/promotion to the 2021:DHC:857-DB post of Director (Conservation) in the Archaeological Survey of India (ASI).

4. We have heard the counsel for the petitioner and the counsel for the respondents appearing on advance notice.

5. The petitioner joined ASI on 21st December, 1987, as a Conservation Assistant Grade-II and was successively promoted as, Conservation Assistant Grade-I on 29th January, 1996, Senior Conservation Assistant on 1st March, 2003, Assistant Superintending Archaeological Engineer on 8th July, 2005, Deputy Superintending Archaeological Engineer on 9th September, 2010 and Superintending Archaeological Engineer on 1st September, 2016.

6. The next promotional post in the cadre of the petitioner is of Director (Conservation), which requires five years of residency as Superintending Archaeological Engineer, under the “Ministry of Culture, Archaeological Survey of India, Conservation Cadre (Group „A‟ and „B‟ Gazetted Posts) Recruitment Rules, 2019”.

7. On 18th January, 2019, the post of Director (Conservation) was advertised. The petitioner, though had admittedly not completed a residency period of five years at the post of Superintending Archaeological Engineer, sought relaxation of the Rule in this regard and thereafter approached CAT and being unsuccessful therein, has filed this petition.

8. The only argument of the counsel for the petitioner is, that since Rule 5 of the aforesaid Rules vests the power of relaxation in Central Government in consultation with the Union Public Service Commission (UPSC), the petitioner is eligible to seek relaxation and on such relaxation being granted, to consideration for promotion to the post of Director (Conservation). It is contended that the said post is to be filled by promotion, failing which by deputation, failing which by direct recruitment.

9. It is further the argument, that though the petitioner has made a representation dated 17th September, 2018 seeking relaxation in the Rule, but the same has not been decided.

10. The counsel for the respondent Union of India states that Rule 5, under which the petitioner is claiming relaxation is not applicable. The said Rule reads as under:- “5. Power to relax.— Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order and for reasons to be recorded in writing and in consultation with the Union Public Service Commission, relax any of the provisions of these rules with respect to any class or category of persons.”

11. It is argued that the same permits relaxation of the provisions of the Rules with respect to any class or category of persons and not qua individual cases.

12. The counsel for the petitioner has contended that in the past also, such relaxation has been given but he was unable to place the document in this regard; he has now procured the said document.

13. We have requested the counsel for the petitioner to read out the document to us and on hearing the counsel for the petitioner, it appears that the relaxation subject matter thereof was neither with respect to subject post of Director (Conservation) nor was with respect to an individual case but with respect to a class or category of persons and which is not the case today. Here, neither a category or class of Superintending Archaeological Engineers are seeking relaxation of the Rule for residency period for a reason common to all of them or attributable to a reason beyond their control. Here, the petitioner, though not qualified for the said post and though not having any reason beyond his control for being eligible for the said post, is seeking to bend the Rule, to give him that for which he is not eligible under the law/Rules.

14. The counsel for respondent UPSC, in this regard has also drawn our attention to Sapna Channa Vs. Government of NCT of Delhi MANU/DE/2236/2014 where a Division Bench of this Court, concerned with Delhi Health Service (Allopathy) Rules, 2009, containing Rule 16 also empowering the government to, if “of the opinion that it is necessary of expedient so to do.........for reasons to be recorded in writing, and in consultation with the Commission, relax any of the provisions of these Rules with respect to any class or category of persons” held, (i) that the power of relaxation is not to be interpreted as one conferring a blanket power; (ii) its scope would be limited to relaxing any Rule, such as eligibility criteria, but would not expand to forcing the government to disregard the Rules altogether; if it was to be so interpreted, it may not stand the test of Article 14 of the Constitution; (iii) the object of framing the power of relaxation is to mitigate undue hardship or to meet a particular situation; (iv) the power is to be exercised in a just and equitable manner and to ensure that strict application of service Rules does not create a situation where a particular individual or a set of individuals may suffer undue hardship or where requisite qualified persons may not be available for appointment to the service; and, (v) in exercise of such power, general order relaxing a particular Rule with a view to avail the services of requisite officers, can be issued. Reliance is also placed on State of Orissa Vs. Sukanti Mohapatra (1993) 2 SCC 486, concerned with Orissa Ministerial Service (Method of Recruitment of Posts of Lower Division Assistants in the Offices of Heads of Department) Rules, 1975, Rule 14 which empowered the government to, for reasons to be recorded in writing, relax any of the provisions of those Rules in respect of any class or category of persons in public interest. It was held that “compassionate grounds” without facts, could not be in public interest. It was further held that such a Rule could not be invoked to shelve the remaining Rules. Reliance is also placed on Ashok Kumar Uppal Vs. State of J&K (1998) 4 SCC 179, also holding that the power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation, since many a times strict application of Service Rules creates a situation where a particular individual or set of individuals may suffer undue hardship and further where there may be a situation where requisite qualified persons may not be available for appointment to the service; arbitrary exercise of such power must be guarded against and the Rule must get a pragmatic construction so as to achieve effective implementation of a good policy of the government; the power of relaxation cannot be exercised to give undue advantage or favour to an individual employee.

15. CAT also in the impugned order has accepted the aforesaid argument of the counsel for the respondents and has rejected the claim of the petitioner and we have no reason to differ.