State of Tripura and Others Vs. Raju Ghosh and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1115662
CourtChhattisgarh High Court
Decided OnMar-02-2013
Case NumberW.A. Nos. 23, 32 & 33 of 2012
JudgeU.B. SHAH & S.C. DAS
AppellantState of Tripura and Others
RespondentRaju Ghosh and Others
Excerpt:
shah, j. 1. these appeals, namely wa no.23/2012, wa 32/2012 and wa 33/2012 are directed against the common judgment and order passed by the learned single judge in wp(c) 195 of 2010 and wp(c) 440 of 2010, wherein while the learned single judge allowed the writ petitions of the respondents in wa 23/2012 and wa 32/2012 who were petitioners in the aforesaid writ petitions, with the following directions:— “i. departmental promotion committee (dpc) is directed to first consider promotion of the writ petitioners to wp(c) 195 and 440 of 2010, to fill the vacancies of tps grade-ii officers; ii. dpc shall consider the case of the private respondents in the second round; and iii. relaxation given by the government under notification dated 9th march, 2010 shall be confined to only the 51.....
Judgment:

Shah, J.

1. These appeals, namely WA no.23/2012, WA 32/2012 and WA 33/2012 are directed against the common judgment and order passed by the learned single Judge in WP(C) 195 of 2010 and WP(C) 440 of 2010, wherein while the learned single Judge allowed the writ petitions of the respondents in WA 23/2012 and WA 32/2012 who were petitioners in the aforesaid writ petitions, with the following directions:—

“i. Departmental Promotion Committee (DPC) is directed to first consider promotion of the writ petitioners to WP(C) 195 and 440 of 2010, to fill the vacancies of TPS Grade-II Officers;

ii. DPC shall consider the case of the private respondents in the second round; and

iii. Relaxation given by the Government under notification dated 9th March, 2010 shall be confined to only the 51 (fifty-one) posts of TPS Grade-II Officers and that too after first considering eligible officers on the basis of merit prescribed in Rule 14 of TPS Rules, i.e. prior to relaxation notification;

iv. The relaxation notification shall not be applied in any case after filling 51 (fifty-one) posts of TPS Grade-II Officers”.

Learned single Judge also directed the Departmental Promotion Committee (DPC) to hold the selection process as expeditiously as possible preferably within a period of three months from the date of judgment as large number of posts of TPS Grade-II Officers were lying vacant and many officers were likely to go on superannuation within a short period.

2. The Writ Appeal No.23/2012 and Writ Appeal No.33/2012 have been filed by the State Appellants and the Writ Appeal No.32/2012 has been filed by the writ petitioners in WP(C) 440/2010 who are the respondents in WA 23/2012.

3. Heard Mr. D.P. Kundu, learned Advocate General for the State as well as Mr. Joydeep Gupta, learned senior counsel assisted by Ms. A.S. Lodh, learned Addl. GA for the State of Tripura and Ms. R. Guha, learned counsel appearing for the State-Appellants. Also heard Mr. Somik Deb, learned counsel for the respondents in WA 23/2012 and the appellants in WA 33/2012 as well as Mr. K.N. Bhattacharjee, learned senior counsel assisted by Mr. Kohinoor N Bhattacharjee, learned counsel and Ms. Y. Taneja, learned counsel appearing for the respondents in WA 33/2012.

4. The respondent-writ petitioners who were Subedars in the Tripura State Rifles (for short, “State Rifles”) had challenged the Office Memorandum dated 19th February, 2010 wherein proposal for relaxation of eligibility criteria for promotion to the post of TPS Grade-II as stipulated in Rule 14 of the Tripura Police Service Rules, 1967 (12th Amendment) (for short, “Rules, 1967”), had been submitted by the Principal Secretary to the Govt. of Tripura to the Council of Ministers and also the notification dated 9th March, 2010 which was issued in exercise of the powers conferred by Rule 34 of the said Rules, 1967 in consultation with the Tripura Public Service Commission (for short, “TPSC”) for granting one time relaxation of the eligibility criteria as prescribed in Rule 14 of he Rules, 1967 for promotion of the Inspectors of Police and Subedars of State Rifles to the post of TPS Grade-II as 51 posts of such TPS Grade-II were lying vacant at the relevant time.

5. The case of the respondent-writ petitioners was that initially the police officers of the State and the members of State Rifles, like the petitioners who were holding the post of Subedars, were governed by different sets of rules, such as police officers were governed by TPS rules, 1967, whereas the Subedars were governed by the Tripura State Rifles Act, 1983 (for short, “Act 1983”) and the Rules made thereunder. By way of the 12th Amendment in the TPS Rules made in the year 2006, Rule 5 was amended and the Subedars were brought within the zone of feeder posts with the police officers of the State wherein by way of proviso, it was stated that 64% of the vacancies to be filled by selection shall be filled by eligible Inspectors of Police and the remaining 36% of the vacancies shall be filled by Subedars of Tripura State Rifles Battalions and similarly by way of amendment of Rule 14 of the TPS Rules, eligibility criteria for recruitment of TPS Grade-II Officers were also changed. Before the merger of the Subedars with the police officers by way of 12th Amendment of the TPS Rules, there was only one feeder cadre i.e. Inspector of Police for promotion, to TPS Grade-II and the said officers in the feeder cadre were required to possess only two years continuous service. TPS Grade-II Officers were recruited from two sources i.e. 50% posts were filled up by way of direct recruitment and 50% by promotion from amongst Inspectors of Police. After amendment of the TPS Rules, though the quota for direct recruitment remained unchanged, but in the feeder cadre due to merger of the Subedars, the quota for promotees were changed to the extent that 64% of the 50% vacancies of the promotion quota to be filled up by selection from the eligible inspectors of police and the remaining 36% of the vacancies shall be filled up by Subedars of the State Rifles.

6. It is further prescribed in the amended Rule 5 that in case of non-availability of eligible Inspectors of Police or Subedars of the Tripura State Rifles, the unfilled vacancies in TPS Gr-II may, in the exigencies of Public Service, be filled up by Subedars of Tripura State Rifles or Inspector of Police, as the case may be.

7. It is also prescribed in the amended rule that if one category of the officers in the feeder post are not eligible for filling up the vacancies then the said vacancy can be filled up by surplus eligible person of other wing applying the interchange method. It is also stated that the writ petitioners joined the feeder post of Subedar on 13.01.2004 and they were eligible for consideration of promotion to the post of TPS Grade-II on and from 13.01.2009 and they have completed by that time five years of service in the feeder post.

8. In the amended Rule 14 the eligibility criteria was modified to the extent that the feeder cadre officers have to complete five years continuous service instead of two years, graduation as minimum educational qualification and also an outer limit of age fixed at 53 years on the first day of January of the year in which the Selection Committee meets. As by the impugned notification dated 9th March, 2010, the State has come up with the relaxation of the aforesaid three basic criteria by way of exercising the powers under Rule 34 of the Rules, 1967, the writ petitioners approached the Writ Court, inter alia stating that since due to such relaxation the officers who were not eligible strictly in compliance with the provisions of recruitment rules prior to relaxation, have also come within the zone of consideration, as a result a large number of inefficient and ineligible officers will occupy higher ranking posts which may not be health in the interest of the police administration and the scope of promotion of the Subedars would also be reduced.

9. More so, memorandum dated 19th February, 2010 i.e. the proposal before the Council of Ministers for relaxation of eligibility criteria, wherein it was mentioned that sufficient numbers of officers in the feeder cadre were not available for which recruitment criteria should be relaxed to fill up the vacancies was also not the correct scenario placed before the Council of Ministers and as a result the Council of Ministers could not consciously consider the proposal for relaxation.

10. The appellant-State, respondents therein, by way of filing counter-affidavit contended that by way of one time relaxation of eligibility criteria by the impugned notification, in no way affected any of the right of the writ petitioners and more so, the petitioners of WP(C) 440/2010 did not possess the graduation degree as required under the provisions of recruitment rules before relaxation.

11. Further the case of the appellant-respondents is that the Subedars having three years experience tenure were eligible for the post of Assistant Commandant of TSR and the Assistant Commandant of TSR having eight years of experience were eligible for the post of Deputy Commandant of TSR as per relevant recruitment rules of the TSR.

12. Learned single Judge after hearing the learned counsel for the parties and considering the relevant rules, particularly Rule 14 and Rule 34, held that the rules vests in Government the power of relaxation for a class or category of posts under impugned notification and the Government seems to have relaxed the qualifications for promotion for the entire class of feeder cadre officers and Government has not adopted the police of “pick and choose”. Although such wholesale relaxation of conditions cannot be approved and should not be adopted by the Government in a routine manner, but, as an exceptional case, the learned single Judge refrained from interfering with the impugned notification dated 9th March, 2010 and without interfering with the impugned memorandum and notification allowed the writ petition by the impugned judgment. Being aggrieved by the impugned judgment the appellants herein preferred these appeals.

13. The appeals preferred by the State appellants have been admitted by this Court and an interim order was passed by this Court in CM Application No.41/2012 arising out of WA 23 of 2012, inter alia, that the common judgment and order dated 30.11.2011 passed in WP(C) 195/2010 and WP(C) 440/2010 is hereby stayed provided that any appointment made in pursuance of the notification dated 9th March, 2010 shall be subject to the ultimate outcome of the instant appeal. Against the said interim order the respondent-writ petitioners preferred an appeal being Civil Appeal No.801 of 2013 and the Apex Court vide its order dated 30.01.2013 disposed of the appeal requesting the High Court to decide the Writ Appeal No.23 of 2012, if possible by the 7th of February, 2013 and consequent thereto set aside the interim order passed by this High Court. Apparently, the Apex Court also made it clear that the order of the learned single Judge shall not be given effect to till disposal of the appeals by the High Court.

14. In terms of the order of the Apex Court dated 30.01.2013 the Writ Appeal No.23/2012 was taken up on 01.02.2013 for final disposal and on that date the learned-counsel appearing for the respondent-writ petitioners prayed for time as against the common judgment passed by the learned single Judge, a Writ Appeal being WA 33/2012 has been preferred by them and the same is to be taken up along with the aforesaid WA 23/2012. Accordingly, the prayer for time was allowed and the hearing of the appeal was fixed for final disposal on 04.02.2013. On 04.02.2013 the matter was heard partly and as the hearing could not be concluded the aforesaid appeals were fixed for further hearing on 07.02.2013. On 07.02.2013, 08.02.2013 and 12.02.2013 all the appeals were heard.

15. Mr. Deb, learned counsel appearing for the writ petitioners who have preferred the appeal being WA 33/2012 and respondent in the other writ appeals while challenging the observation of the learned single Judge in paragraph 12 of the impugned judgment wherein the learned single Judge noted, inter alia, “under impugned notification, the Government seems to have relaxed qualifications for promotion for the entire class of feeder cadre officers. In other words, Government has not adopted the policy of ‘pick-and-choose. Although such wholesale relaxation of essential conditions of recruitment cannot be approved and should not be adopted by Government in a routine manner” would contend that the learned single Judge, in one hand came to the conclusion that wholesale relaxation of essential conditions of recruitment cannot be approved, in other hand approved the action of the respondents taken in the impugned notification dated 9th March, 2010 by not interfering with the said notification.

16. It is again contended that the State Government does not have any authority to issue a Circular/letter in exercise of its rulemaking powers contravening the rules framed under Article 309 of the Constitution of India as by this time it is well established that the basic educational qualification/eligibility of recruitment in service, requisite for appointment i.e. conditions for recruitment cannot be relaxed by resorting to the relaxation clause. In support of his aforesaid contention he has placed reliance on the decision of the Apex Court in J and K Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors. (1994) 2 SCC 630 : (AIR 1994 SC 1808), Suraj Prakash Gupta v. State of Jammu and Kashmir (2000) 7 SCC 561 : (AIR 2000 SC 2386), paragraph 28, 29 and 31 and R.S. Garg v. State of UP and ors. (2006) 6 SCC 430 : (AIR 2006 SC 2912) wherein the Apex Court taking note of the case of Suraj Prakash Gupta (supra) as well as the decision of A Umarani v. Registrar, Co-operative Societies, (2004) 7 SCC 112 : (AIR 2004 SC 4504) noted that, even the State cannot make rules or issue executive instructions by way of regularization of services. It would be in violation of rules made under Article 309 of the Constitution of India and opposed to the constitutional scheme of equality clauses contained in Articles 14 and 16. He has also placed reliance on Ananda Ram Bora and Ors. v. State of Assam, (2003) 2 GLT 78 wherein a Division Bench of this Court considered Rule 29 of the Assam Secretariat Subordinate Service Rules, 1963 wherein the Government is given the power for relaxing the requirement of any rule.

17. He has also contended that the writ petitioners appellants who were appointed directly to the post of Naib-Subedars in the year 1997 fulfilling the educational qualification “Graduation” and other eligibility conditions have while been accepted by the respondent-State, the respondent-State are now stopped from raising the question, inter alia, that the petitioners are not graduates where the petitioner-appellants have since been rendered complete 14 years of service.

18. He has also submitted that a person who completed two years Bachelors degree can also be considered as a graduate in view of the various circulars/letters issued by the University Grants Commission which has been considered by the Apex Court in Annamalai University represented by the Registrar v. Secy. To Govt., Information and Tourism Department, (2009) 4 SCC 590 : (2009 AIR SCW 2087).

19. He contended that from the memorandum dated 19th February, 2010 and the notification dated 9th March, 2010 which are impugned in the writ petition, it would unmistakenly be revealed that the proposal for relaxation laid before the Council of Ministers has not properly ventilated that at the relevant time were already available 31 Subedars of State Rifles who were eligible for promotion to the post of TPS Grade-II and the respondents also in their counter-affidavit have not denied the said specific assertion of the petitioner that the cabinet was not properly informed or regarding the availability of eligible Subedars for consideration. According to him, the decision of the cabinet for relaxation of the educational qualification and eligibility criteria like the upper age limit is not a conscious decision. Had the cabinet been properly apprised of regarding the availability of Subedars and inspectors the cabinet may perhaps not have taken a decision for relaxation. As the said decision was taken not on just information and the contention of the petitioners in their petition regarding such information is not controverted by the State appellants in their counter, it would be proper for the Court to set aside the memorandum dated 19th February, 2010 and consequent notification thereto dated 9th March, 2010. In support of his aforesaid contention he has placed reliance on a decision of the Apex Court in Bir Singh Chauhan v. State of Haryana and Anr. (1997) 6 SCC 282.

20. He finally contended that the writ appeal being an in house appeal, the appellate Court ought not to have interfered with the decision of the learned single Judge when such decision is neither erroneous nor illegal or perverse. In support of his aforesaid contention he relied on a Division Bench decision of this Court in Tractor and Farm Equipment Ltd. v. Secretary to the Government of Assam, Dept. of Agriculture and Ors. (2004) 2 GLR 56 : (AIR 2004 Gau 73) as well as the decision of Sonaram Baruah and Anr. v. Assam State Electricity Board and Ors. (2011) 2 GLR 630.

20. Learned Advocate General while challenging the validity of the impugned judgment would contend that the respondent-writ petitioners were in no way affected by impugned notification relating of relaxation of eligibility criteria as prescribed in the rules. He also contended that Rule 34 is a statutory rule which authorizes the Government for relaxation of any of the provisions of the TPS Rules with respect to any of the class or category of persons or posts after consultation with the TPSC, if the said relaxation is necessary or expedient for larger interest and to overcome the emergent situation. In the instant case, the Government has only exercised that power and admittedly s the writ petitioners did not challenge the said provisions of Rule 34 of the Rules, the learned single Judge without setting aside the impugned memorandum and notification has no power to direct the State respondents for considering the case of the writ petitioners first denying the case of the persons in the feeder post who become eligible after relaxation of the eligibility criteria.

22. It is also contended that the petitioner admittedly did not file any rejoinder affidavit, challenging the contention of the State appellants in their counter-affidavit wherein it is specifically stated that “By the 12th amendment of the TPS rules the promotional avenues of Subedars of TSR have in fact become broaden. Due to inclusion of the post of the Subedars of TSR (non-cadre) were also absorbed in TPS Cadre Service which itself is the feeder post for promotion to IPS if conditions are fulfilled. I state that, the Subedars having experience of 3 years tenure may be eligible for the post of Assistant Commandant of TSR and the Assistant Commandant of TSR having 8 years of service are eligible for the post of Deputy Commandant of TSR as per relevant Recruitment Rules of TSR” and the contention made in paragraph 14 wherein it is stated that “the petitioners who obtained BA/B.Sc/B.Com (pass) degree and did not undergo and successfully complete further one year bridge course and passed the same remain under graduate as they were not awarded the first degree and could not/cannot be treated as a graduate” and it is the admitted position that when some of the averments are not traversed by a party then the same should be treated as admitted. In support of his aforesaid contention he placed reliance on the decision of the Apex Court in A.P. State Financial Corporation v. Vajra Chemical and others, (1997) 7 SCC 76 : (AIR 1997 SC 3059) particularly para 18, Prestige Lights Ltd. v. State Bank of India, (2007) 8 SCC 449 : (2007 AIR SCW 5350) particularly paragraph 13 and Ramji Veerji Patel and Ors. v. Revenue Divisional Officer and Ors. (2011) 10 SCC 643 para 20 : (AIR 2012 SC (Civ) 8).

23. He further contended that the learned single Judge committed error by considering the respondents-petitioners as graduates since the State Government had accepted their graduation degrees pursuant to the recruitment of Naib Subedars and Havildar Rules, 1990.

24. He further contended that the learned single Judge committed error by considering the respondent-petitioners as graduates since the State Government had accepted their graduation degrees pursuant to the recruitment of Naib Subedars and Havildar Rules, 1990.

24. Mr. Gupta, learned senior counsel while appearing in absence of the learned Advocate General also reiterated the contention raised by the learned Advocate General that none of the accrued rights of the respondent-writ petitioners has been taken away due to relaxation of the eligibility criteria uniformly for Subedars as well as for Inspectors. Rather due to such relaxation the area of zone of consideration has been increased and more number of officers in the feeder post would come for consideration and such a decision for relaxation has to be taken up by the Government as after the 12th amendment of the rules, the zone of consideration collapsed due to non-availability of eligible persons in the feeder post. He has also contended that an employee has no right to be considered for promotion from a particular date when the vacancy arises. Right to consideration is obviously a fundamental right and the same is accrued only as on the date of consideration of eligible candidates. Here in the instant case, admittedly none was considered depriving the petitioners prior to relaxation of the eligibility criteria with the aid of the impugned notification.

25. He further submits that only when a rule prescribes a particular time frame for completing the selection process then only a person eligible within the said time period can take a plea for his accrued right subject to his case was not considered within a time frame. In support of his aforesaid contention he has placed reliance on Deepak Agarwal and Anr. v. State of Uttar Pradesh and Ors. (2011) 6 SCC 725 : (2011 AIR SCW 2138) wherein the Apex Court discussed regarding the right of a candidate to be considered in the light of existing rules. He also referred to Chandra Gupta I.F.S. v. Secretary, Govt. of India, Ministry of Environment and Forest and Ors. (1995) 1 SCC 23 : (AIR 1995 SC 44).

26. He further contended that though admittedly there were 26 Subedars eligible to be considered for promotion to the post of TPS Grade-II before issuance of the impugned memorandum and notification but the authority did not commit any mistake/wrong in the memorandum dated 19th February, 2010 for mere non-mentioning that nobody in the feeder cadre of Subedar is eligible but mentioning that considerable number of Subedars also cannot come under the purview of consideration for promotion to TPS Grade-II according to the amended rules for the same reasons.

27. He again contended that chances of promotion is not a right, therefore, it cannot be said that due to relaxation the zone of consideration has gone up and therefore the respondent-petitioners are affected. When the plain language of the rules allows the Government to relax any rule including the rule relating to eligibility criteria then nobody can ask the authority concerned not to exercise its power to relax the rule, as vested in it, to overcome certain contingencies and/or hardships.

28. In addition to his aforesaid contention he has also contended that even if for relaxation, the chances of promotion of some of the employees is adversely affected then also being the chances of promotion is not a right, the said policy decision of relaxation of the Government cannot be interfered with. In support of his aforesaid contention he has placed reliance on S.P. Shivprasad Pipal v. Union of India and Ors., AIR 1998 SC 1882 : (1998) 4 SCC 598 wherein the Apex Court considered the legislative intent of a rule framed under Article 309 and noted that, “The proviso to Art. 309, however, empowers the President, in the case of services and posts in connection with the affairs of the Union, to make Rules regulating the recruitment and conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature. The power to regulate recruitment and conditions of service is wide and would include the power to constitute a new cadre by merging certain existing cadres”. Ultimately in para 19 of the said decision the Apex Court noted, inter alia, “ ……it is possible that by reason of such a merger, the chance, of promotion of some of the employees may be adversely affected, or some others may benefit in consequence. But this cannot be a ground for setting aside the merger which is essentially a policy decision. This Court in Union of India v. S.L. Dutta (AIR 1991 SC 363) (supra) examined this contention. In S.L. Duttas case (supra) a change in the promotional policy was challenged on the ground that as a result, service conditions of the respondent were adversely affected since his chances of promotion were reduced. Relying upon the decision in the State of Maharashtra v. Chandrakant Anant Kulkarni (AIR 1981 SC 1990) (supra) this Court held that a mere, chance of promotion was not a condition of service and the fact that there was a reduction in the chance of promotion would not amount to a change in the conditions of service.” (Emphasis supplied).

29. He also relied upon a decision of the Apex Court in Union of India v. Suresh Kumar Nayak, 2011 AIR SCW 773 : (AIR 2011 SC (Supp) 604) wherein the Apex Court reiterated its earlier decision in State of Maharashtra and Anr. v. Chandrakant Anant Kulkarni and Ors., AIR 1981 SC 1990 wherein the Apex Court has laid down the principle that mere chances of promotion are not conditions of service and the fact that there was reduction in chances of promotion did not tantamount to change in the conditions of service. A right to be considered for promotion is a term of service but mere chances of promotion are not. In the instant case, according to the appellant-State the chance of promotion have in fact been increased due to relaxation.

30. He further submits that before the amendment of Rule 14 of the amended rules, the educational qualification “Graduation” as prescribed in the said rule was not there. The same was introduced for the first time in Rule 14 by way of amendment for betterment of service and considering that there may be an emergent situation where the relaxation of any of the rules including the rules wherein educational qualification is prescribed may be necessary to relax for the larger interest of the society, i.e. public interest and for such a situation, Rule 34 empowers the authority to relax such eligibility criteria as prescribed in Rule 14 in general. To exercise the power as given under the said Rule 14, the authority has to give reason why they are exercising such power of relaxation and they have to exercise the power for a bona fide purpose and not in an arbitrary manner for favouring any individual or a class of people. If the condition of recruitment cannot be relaxed as contended by the learned counsel for the respondent-writ petitioner then the purpose of Rule 34 will vanish as most of the provisions in rules are relating to recruitment. In support of his aforesaid contention he has placed reliance on J.C. Yadav v. State of Haryana, (1990) 2 SCC 189 : (AIR 1990 SC 857) particularly para 6 and 7 wherein the Apex Court discussed the object and purpose of conferring the relaxation power on the Government.

31. He also submitted that the total cadre strength of the TPS Grade-II is at present 208 and out of which 104 are earmarked for the Subedars and Inspectors against the promotion quota and in or about 2010, 51 TPS Grade-II vacancies against the promotion quota were existing and there were 33 Inspectors of Police out of whom non satisfied the triple conditions prescribed in Rule 14 of the amended rules, 1967 and considerable numbers of Subedars of the TSR Battalions also could not come under the purview of consideration for promotion to the TPS Grade-II for the said reasons.

32. Mr. Gupta also submitted that the judgment of the learned single Judge is an erroneous one as the learned single Judge without interfering with the policy decision in notification dated 9th March, 2010 directed the respondent-State for splitting up the process of consideration into two stages, first the writ petitioners and then the private respondents, and according to him if the impugned notification relaxing the eligibility criteria as prescribed in Rule 14 is interfered with then that would be amounting to nullification of the provisions of relaxation.

33. In the instant case, the learned single Judge by way of directing the State respondents to consider the case of the writ petitioners, at the first instance, in fact created a separate class within the class, which itself is unreasonable and such a direction is also perverse.

34. Mr. Gupta, would contend that the decisions of the Apex Court relied upon by Mr. Deb have no application as all these cases have been decided in peculiar factual situation and they have no similarity or applicability with the facts of the present case as in those cases no express rule relating to relaxation, like Rule 34 was considered by the Apex Court. In the instance case, the condition relating to method of recruitment as prescribed in Rule 5 has not been relaxed, rather Rule 14 wherein the conditions of eligibility and procedure for selection has been relaxed. Thus, those cases have no direct bearing with the case in hand as those cases were relating to relaxation of rules empowering the authority only to relax condition of service and not all the rules including condition of recruitment, as has been given in the instant case. More so, in those cases the Public Service Commission was not consulted for which the Apex Court did not allow the authority for acting on the basis of relaxation clause. He finally contended that each rule has to be looked into considering its object and aims. In the instant case, by way of provisions of Rule 34 the Governor has given power to relax condition of any of the rules including the conditions relating to conditions of recruitment.

35. Mr. P. Datta, learned counsel while supporting the contention of Mr. Kundu, learned Advocate General as well as Mr. Gupta, learned senior counsel, informed this Court that on 25.07.2012, the Government of Tripura issued a letter to the respondent-Public Service Commission for convening a DPC meeting for consideration towards filling up of the vacant post of TPS Gr-II against the promotion quota from eligible Inspector of police and Subedars of TSR and consequent thereto on 22.08.2012 a meeting of the DPC was held and the committee considered the eligible officers though the said facts could not be placed before the learned single Judge.

36. Mr. Deb while replying to the submission of the learned counsel for the respondent-appellant State has contended that Rule 5 of Indian Audit and Accounts Department (Senor Accountant) Recruitment Rules, 1988, a rule para-materia, was considered by the Apex Court in Union of India and Anr. v. Narendra Singh, (2008) 2 SCC 750 : (AIR 2008 SC (Supp) 240) and the Apex Court while considering the said case where the respondent was working as Accountant and by an order dated 01.01.1990 he was mistakenly promoted as Sr. Accountant (Functional) and after about four years the department realized that the promotion given to him was erroneous and he was not eligible to be promoted and thus the mistake was therefore sought to be corrected and ultimately, in view of Rule 31-A of the fundamental Rules, 1992 a notice was issued to him informing him that he could not have been promoted as Sr. Accountant as he had not passed the departmental examination of accountants as required by law and also asked him to show-cause as to why his promotion give erroneously should not be cancelled and accordingly he has shown cause but the authority was not satisfied and ultimately cancelled the order of promotion. Being aggrieved, he has challenged the order of cancellation before the Tribunal which on 12.03.1996 allowed his prayer and directed the authorities to consider his case and accordingly, the authority considered his case and rejected the prayer vide order dated 24.06.1996 and the question came up before the Apex Court that even if passing of Departmental Examination was necessary then also the authority ought to have relaxed the rule by exercising its power under Rule 5 but the authority rejected his prayer mechanically against which he has approached the High Court of Madhya Pradesh, Jabalpur (Indore Bench) and the High Court set aside the order of Tribunal which was challenged before the Apex Court and the Apex Court while upholding the decision of the High Court and discussing about the rule relating to relaxation held that the power of relaxation should be exercised to the extent as may be necessary to ensure satisfactory working or removing hardship in a just and equitable manner but the Government cannot consciously and deliberately deviate from the rules exercising the power of relaxation. In the instant case, the State-appellants exercised their power of relaxation relating to conditions of recruitment without considering the ground reality. Thus, the decision of relaxation of provisions of rules is an unconscious decision and is liable to be set aside.

37. In addition to his above contention, he has submitted that the Court can interfere even in the general policy like the promotion policy decision relating to relaxation if the same is unreasonable and arbitrary. In support of his aforesaid contention he has placed reliance on Brij Mohan Lal v. Union of India and Ors. (2012) 6 SCC 502 : (AIR 2012 SC (Cri) 1260) wherein the Apex Court while considering as to whether appointments made under a scheme to the retired District and Sessions Judges as Ad hoc judges of Fast Track Courts have a right to the post, taking note of its earlier decision, laid down certain tests as to whether the Court should or should not interfere on a policy decision of the State, which are as follows:—

I. If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.

II. The change in policy must be made fairly and should not give the impression that it was so done arbitrarily on any ulterior intention.

III. The policy can be faulted on grounds of mala fides, unreasonableness, arbitrariness or unfairness, etc.

IV. If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.

V. It is de hors the provisions of the Act or legislations.

VI. If the delegate has acted beyond its power of delegation.

38. Mr. Bhattacharjee, learned senior counsel for the respondents in WA 32/2012 submits that the decision of the Counsel of Ministers is not a conscious decision as a large number of the feeder cadre in the post of Subedar was available but the same was not placed before the Council of Ministers. Thus, the decision of relaxation is n unconscious decision and had the Council of Ministers been informed regarding the availability of persons in the feeder cadre, like the petitioners, in the post of Subedar as well as other 8 inspectors, then the Council of Ministers might not have gone for relaxation of essential conditions either or recruitment or of service vide the impugned memorandum and notification. He again contended that a large number of eligible persons in the post of Subedar, i.e. the feeder post of TPS Gr-II were available at the time of relaxation of recruitment conditions and the learned Single Judge without interfering with the policy decision of the authority, rightly directed them for considering the case of the petitioners first and then go for considering the case of other persons in the feeder post applying the policy of relaxation as the number of Inspectors as required, was not available.

39. He finally contended that one time relaxation may be reasonable in case of Inspectors where there was no eligible person but in the case of Subedars no relaxation was necessary as number of eligible persons available was more than the number of vacancies against their quota, and the said fact was admittedly not placed before the Council of Ministers. Had the said fact been placed before the Council of Ministers then the Council of Ministers might not have taken this decision.

40. He also submits that if the case of the respondent-writ petitioners is not considered then it would be an injustice to them and it is a settled position of law that the arm of writ Court can reach wherever injustice is caused even without interfering with the policy decision if the same is required for the purpose of rendering justice. In support of his aforesaid contention he has placed reliance on a decision of the Apex Court in Air India Statutory Corporation etc. v. United Labour Union and others, etc., AIR 1997 SC 645.

41. A close reading of the faciculous of Rule 5 of the amended rules clearly posits that the recruitment of TPS Gr-II shall be from two sources namely by direct recruitment and by promotion from Inspectors of Police and Subedars. The quota meant for filling up of the vacancies of the post by way of direct recruitment is 50% and the remaining 50% of the promotion quota will be filled up by 64% from the Inspectors of Police and 36% from the Subedars and Rule 14 dealt with the conditions of eligibility and procedure for selection and Rule 34 relates to relaxation, as stated supra.

42. As the whole controversy is regarding the conditions of Rule 5, Rule 14 and Rule 34 before discussing the submission of the learned counsel for the parties, it would be proper on our part to reproduce the aforesaid rules, as the learned counsel for the parties have done x-ray of those provisions for establishing their contentions. Accordingly, the aforesaid provisions of rules, as amended on 19th May, 2006 are reproduced here-in-under:—

“5. Method of Recruitment:—(1) Appointment to the Service shall be made by the following methods, namely:—

(a) not more than 50 per cent of the substantive vacancies which occur from time to time in the authorized permanent strength of the service shall be filled by direct recruitment in the manner specified in part IV of these rules, and

(b) The remaining such substantive vacancies shall be filled by selection in the manner specified in Part V of the Rules from amongst.

(i) officers who are substantively borne on the cadre of Inspectors of Police, and Subedar of Tripura State Rifles Battalions in the State of Tripura.

Provided that 64% of the vacancies to be filled by selection shall be filled by eligible Inspectors of Police and the remaining 36% of the vacancies shall be filled by Subedars of Tripura State Rifles Battalions:

Provided further that in case of non-availability of eligible Inspectors of Police or Subedars of Tripura State Rifles Battalions, the unfilled vacancies in the quota of Inspector of Police or Subedars of Tripura State Rifles Battalions may, in the exigencies of Public Service, be filled by Subedars of Tripura State Rifles or Inspector or Police, as the case may be.

6. to 13 ****

14. Conditions of Eligibility and Procedure for Selection:—

(1) The Committee shall consider from time to time the cases of officers eligible under clause (b) of sub-rule (1) of Rule 5, who have served in the cadre of Inspectors of Police and Subedars of Tripura State Rifles Bns. for not less than five years and prepare a list of officers recommended taking into account the actual vacancies at the time of selection and those likely to occur during a year. The selection for inclusion in the list shall be on merit and suitability in all respects for appointment to the Service with due regard to seniority.

(2) The names of persons included in the list shall be arranged in order of merit as forwarded to the State Government.

(3) Minimum educational qualification for promotion to Grade-II of the service shall be Graduation.

(3) The Committee shall not consider the cases of the officers in the feeder posts who have attained the age of 53 years on the first day of January of the year in which the Committee meets.

15 to 33 ****

34. Power to relax:—Where the Administrator is of the opinion that it is necessary or expedient so to do, he may by order, 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 or persons or posts.”

43. In Dr. Narinder Mohan and Ors. (AIR 1994 SC 1808) (supra) the Apex Court while considering Rule 9 of Jammu and Kashmir Medical Education (Gazetted) Services Recruitment Rules, 1979 wherein it was prescribed the upper age limit as well as power to relaxation of eligibility criteria like age limit, noted “The executive power is co-extensive with legislative power of the State and under Article 162, the State can create civil posts and fill them up according to executive instructions consistent with Articles 14 and 16 of the Constitution. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law, but only supplement the law. The Governor exercising the power under proviso to Section 125 (Article 309 of the Constitution of India) made the rules which do not expressly give the power to the State Government to make ad hoc appointments. No such rule has been brought to our notice. No express power was conferred and in fact cannot be conferred to relax the rules of recruitment. Having made the rules the executive cannot fall back upon its general power under Article 162 to regularise the ad hoc appointments under the Rules. Rule 9(3) empowers only to relax the qualification of age in particular exigencies which cannot be called in aid to relax the rules of recruitment.

44. We have gone through the facts of this case where the respondents were appointed on ad hoc basis to the post of lecturer in different disciplines of medial education and the Government has relaxed the rules of recruitment and appointed respondent Nos.1 and 2 of that case on regular basis and ultimately the appointment of those respondents and other respondent Nos.3 to 6 were also challenged in several writ petitions and ultimately question came up before the Court as to whether upper age as has been prescribed for eligibility of a candidate for recruitment can be relaxed applying provision of sub-rule 3 of Rule 9 and as the rules did not expressly give power to the State Government to regularize the ad hoc appointments by way of relaxation the Apex Court held that taking the aid of the general power under Article 162 the Executive cannot regularize the ad hoc appointments under the rules as Rule 9(3) empowers only to relax the age in particular exigencies and also stated that the ad hoc employees should be replaced expeditiously as possible by direct recruits. Thus, according to us, this case in no way would help the contention of Mr. Deb.

45. In Syed Khalid Tizvi and Ors. v. Union of India and Ors. 1993 (3) SCC 575 the vacancies which were required to be filled up by direct recruitment were occupied by the promotees on officiating basis for long time and subsequently when the question came up for determination of seniority between the two groups, the State Government refused to take into consideration the term spent by the promotes on officiating basis. The promotes argued that as they were promoted to officiate the post meant for direct recruits it can be deemed that the State Government had exercised its power to relax conditions of service but the Apex Court refused such an argument of the promotees and held that there could not be any deeming relaxation of recruitment rules. The Apex court also discussed that there are differences between conditions of service and recruitment and the conditions of service came into operation only after recruitment and held that relaxation of rules is applicable only in case of relaxation of conditions of service and not for relaxation of conditions of recruitment.

46. The fact of Syed Khalid Rizvi (supra) is totally different than the case in hand. Rule 34 of amended rules is not confined to condition of service and expressly extends to the entirety of the TPS rules which are primarily in the nature of recruitment rules and rules ancillary thereto and the State Government has admittedly exercised the power vested in it by the said rules and not only that before exercising the power the State Government also consulted with the Public Service Commission as required under the said rule. But question is as to whether before relaxation of the conditions as mentioned in Rule 14, the fact regarding availability of the candidates in the feeder post of Subedar was placed before the Council of Ministers or not, and if the actual information is not placed and on the basis of some wrong information the decision for relaxation was taken up then what would be the effect of such decision and the notification made under the said decision. The aforesaid question will be discussed later on as at present we are considering the case laws cited by the learned counsel for the parties. In view of the above facts involved in Syed Khalid Rizvi (supra) and the question that arose for decision before the Apex Court, we are of the view that the case of Syed Khalid Rizvi (supra) also in no way helps the petitioners.

47. In Sura Prakash Gupta (AIR 2000 SC 2386) (supra) again the Apex Court was confronted with the issues arising between the direct recruits and promotees regarding their seniority in view of the order passed by the Government regularizing the services of Junior Engineers who were promoted as ad hoc Assistant Engineers without following the rules of promotion and not only that, the Junior Engineers were also promoted not only against their quota but also against the quota of direct recruits and the point for decision before the Apex Court was as to whether the promotees, for recruitment to the gazetted service, can avoid the Public Service commission and whether the Government has the power to order the entire ad hoc/stop gap service of Assistant Engineers and Assistant Executive Engineers to be counted for seniority and can the order of relaxation dated 02.01.1998 passed by the Government in respect of the Electrical Wing be treated as binding to imply relaxation of rules of recruitment requiring consultation with the Service Commission and as to whether relaxation of the recruitment rules is permissible. The Apex Court taking note of relaxation Rule 5 of the J and K Civil Services (CCA) Rules, 1956 noted that the said rule enabled the power of relaxation to be exercised only on the ground of “hardship” and in individual cases and the reasons for such relaxation has also to be recorded in writing. In the said decision, the Apex Court also considered the case of J.C. Yadav (AIR 1990 SC 857) (supra) and held that “a three-Judge Bench while dealing with Rule 22 of the relevant Rules which permitted relaxation, in case of hardship, in “any particular case”, held that the above words did not mean a particular person but meant “pertaining to an event, situation or circumstances”. The power could therefore be exercised in favour of a group.”

48. Thus, according to us, as there was no prescription in the relaxation rules for counting the ad hoc service of the promotees for the purpose of seniority over the direct recruits and also no prescription for wholesale regularization of the service of ad hoc promotees in a substantive post, the Apex Court held that the conditions of recruitment cannot be relaxed which would be evident from paragraph 31 of the said decision wherein the Apex Court noted, ‘The result of the discussion, therefore, is that the wholesale regularization by order dated 2-1-1988 (for the Electrical Wing) by way of implied relaxation of the recruitment rule to the gazetted category is invalid. It is also bad as it has been done without following the quota rule and without consulting the Service Commission. Further, power under Rule 5 of the J and K (CCA) Rules, 1956 to relax rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment.”

49. In the case in hand, admittedly the Public Service Commission was consulted as required and not only that, in the instant case, there is no question of encroaching the quota of direct recruits or even the quota of one group by another within the promotees. Thus, the case of Suraj Prakash Gupta (AIR 2000 SC 2386) (supra) also in no way helps he petitioner as in that case the authority has taken the decision merely on sympathetic consideration without following the rules of relaxation.

50. In R.S. Garg (AIR 2006 SC 2912) (supra) as relied upon by Mr. Deb, both the appellant and the respondent therein were appointed on ad hoc basis to the post of Inspector which was subsequently re-designated as Assistant Director of Factories and the appellant was appointed after selection by Public Service Commission as required under service rules but the respondent No.3 had not undergone the requisite process of selection by Public Service Commission as required under rules. As the post of assistant director was the feeder post for promotion to the post of Deputy Director and being the respondent No.3 was not promoted against the quota meant for reserved category, i.e. Scheduled Casts Category, the wife of the respondent No.3 made a representation to the Chief Minister of the State of U.P. for soliciting promotion for respondent No.3 and as the respondent No.3 had not completed qualifying service of five years a suggestion was made for relaxation of qualifying service which was ultimately approved by the Chief Minister and the same was also informed to the concerned officers by a letter stating that in pursuance of the said decision necessary amendment in the U.P. Labour Department (Factories and Boilers Division) Officers Service Rules, 1980 would be issued later on and accordingly the respondent No.3 was also promoted as Deputy Director. The appellant being unsuccessful challenged the same before the High Court in a writ a writ petition and the matter ultimately went to the Apex Court. As in the said case, the respondent No.3 was directly recruited without following the process of recruitment through Public Service Commission as required under law and was later on regularized through the back door, the Apex Court refused to regularize the appointment of the said back door appointee providing the benefit of rule of relaxation. More so, the rules involved in that case also provided for relaxation of condition of service. In that case, the rule of relaxation was a bit restricted, not wide enough, as Rule 34 in the case in hand is, where expressly the rule making authority resorted to relaxation of any of the rules to overcome the emergent situation like the non-availability of the candidates for promotion in the feeder post having the requisite qualification and the requisite age limit. Thus there is no quarrel with the proposition laid down by the Apex Court, inter alia, the power to relax condition of service would not include power to relax condition of recruitment being both the conditions are distinct and different.

51. In Bir Singh Chauhan (supra) and in R.S. Garg (AIR 2006 SC 2912) (supra) Apex Court discussed in what circumstances a decision taken on the basis of wrong information can be considered as malice on fact and such a decision is required to be interfered with. Thus, according to us, it would be proper to describe the aforesaid aspect also.

52. In J.C. Yadav (AIR 1990 SC 857) (supra) the appellants were promoted to the post of Executive Engineers in the cadre of Class-I on ad hoc basis while Vyas Dev, the respondent was not considered for promotion and he made a representation and as nothing came out in his favour a committee was constituted later on under Rule 8 for selecting suitable members of Class II service for promotion to Class-I post and the Committee considered the case of the appellants and the respondent-Vyas but it did not find the respondent suitable for promotion and thus his name was not included in the select list prepared by the committee while the names of the appellants were included therein and such decision of the Committee was approved by the Public Service Commission and the said recommendation was forwarded to the State Government but since the appellants did not possess the requisite minimum period of service of 8 years in Class-II service as required under Rule6(b) and as no other suitable candidates was available, the Selection Committee made recommendation to the State Government for granting relaxation to the appellants. The Committees recommendation was reiterated by the Public Service Commission which was accepted by the State Government and the appellants were appointed to Class-I service. Challenge before the High Court of Punjab and Haryana was the validity of he appellants promotion by the respondent Vyas. The learned single Judge in the High Court dismissed the writ petition as the case of Vyas was considered by the Selection Committee along with the appellants and learned single Judge also considered that the State Government had relaxed Rule 6(b) in favour of the appellants. Thus, the promotions were sustainable in law.

53. The decision of the learned Single Judge went on appeal before the Division Bench which set aside the order of the learned single Judge and quashed the promotions of the appellants on the sole ground that the State Government had no authority in law to grant relaxation to the appellants under Rule 22 in a general manner, as the power of relaxation could be exercised only in individual cases to mitigate hardship caused to an individual. Being aggrieved the appellants preferred appeal before the Apex Court and the Apex Court while considering Rule 6(b) relating to qualification for the post, Rule 22 relating to power to relax as well as Rule 26 ultimately also took note of Jit Singh v. State of Punjab, (1979) 3 SCC 37 : (AIR 1979 SC 1034) wherein the Apex Court though dismissed the appeal observing that Rule 14 did not allow any general relaxation but did not examine the matter in detail, as it was of the view that since the appellants in the case of Jit Singh (supra) were not eligible for promotion, they could not question the validity of appointment of those who had been promoted on the basis of relaxation being granted by the State Government and upheld the promotions in view of the extra ordinary situations, in which the State Government made the appointments, though the State Government made the appointments in derogation of the requirement of rules. The Apex Court also took note of its earlier decision in B.S. Bansal v. State of Punjab, (1978) 2 SLR 553 and ultimately in para 10 noted, inter alia, “Though Rule 22 is not happily worded, as apparently it gives an impression that no general relaxation can be granted by the State Government, but on a close scrutiny of the scope of the power we find that a narrow construction of the Rules would nullify the Government's power of relaxing Rules to meet a particular situation. Rule 22 is beneficial in nature it must be construed in a liberal manner and it should not be interpreted in a manner to defeat the very object and purpose of such power. Power to grant relaxation may be exercised in case of an individual to remove hardship being caused to him or to a number of individuals who all may be similarly placed. This power may also be exercised to meet a particular situation where on account of the operation of the Rules hardship is being caused to a set of individual officers. In the instant case the appellants were found suitable for promotion by the screening committee, the Commission and the State Government, and the contesting respondent Vyas Dev was not found suitable even otherwise for promotion, the State Government granted relaxation of Rule 6(b) in favour of the appellants. In such a situation, it is beyond comprehension that the power of relaxation under Rule 22 was exercised arbitrarily or that it caused hardship or injustice to any one.”

54. The case of J.C. Yadav (AIR 1990 SC 857) (supra) was subsequently considered by the Apex Court in Suraj Prakash Gupta (AIR 2000 SC 2386) (supra) but the Apex Court did not dis-approve the principle laid down in the said case. Rather considering the case of Keshab Ch. Joshi v. Union of India, 1992 Supp (1) SCC 272 : (AIR 1991 SC 284), and Syed Khalid Rizvi (supra) held that condition of recruitment cannot be relaxed. Thus, according to us, the decision of the three Judges Bench in J.C. Yadav (supra) is still covering the field where the express provision of relaxation of any of the rules of recruitment is permitted like rule 34 in the instant case.

55. Regarding the contention of Mr. Gupta citing the case o Deepak Agarwal and Anr. (2011 AIR SCW 2138) (supra) and S.P. Shivprasad (AIR 1998 SC 1882) (supra) that a candidate has the right to be considered in the light of the existing rules in force on the date on which consideration took place and not from the date when the vacancies arose. There is also no doubt that only when a rule prescribed a particular time frame for consideration of the case of an employee, only then such an employee has the right to be considered within that period. We are also in full agreement with the contention of Mr. Gupta that due to change in the promotional policy of the recruitment rules, service conditions of an employee can sometimes be adversely affected and such change of circumstances, if reduce the chances of promotion, would not amount to change in the condition of service and the policy decision due to which the chances of promotion are reduced cannot be a ground for setting aside the policy decision. More so, in the instant case, due to the policy decision of relaxation of conditions of eligibility criteria of the feeder post, chances to be promoted in TPS Gr-II are in no way reduced, rather the scope for consideration is being widened. May be the petitioners are afraid that even if the zone of consideration is widened then also they may not get promotion competing with the persons who come within the zone of feeder post due to relaxation. But such apprehension cannot be a ground for holding that the Government is not empowered to relax the condition of recruitment when by way of an express provision rules give power to it to relax any of the provisions of the recruitment rules for overcoming the emergent situation like non-availability of the required number of persons in the feeder post.

56. It is also contended that eligibility connotes minimum criteria for selection which may be laid down by the Executive Authority/legislature by way of any statue or rules. While the term educational qualification is an additional norm prescribed by the authorities and before a candidate is considered for appointment in service he is to fulfill the eligibility criteria but there may be a situation when the relaxation of educational qualifications is required to be relaxed to meet an emergent situation, like the case in hand, where the feeder post for promotion to TPS Gr-II is from two sources, Subedars and Inspectors of Police, and in one source though some eligible persons are there but considerable numbers are not available for consideration due to their lack of educational qualification and shortage of service experience and in the other source nobody is eligible even for consideration in accordance with rules. In the instant case the authority ahs exercised the power vested in it for relaxing the recruitment rules for overcoming the emergent situation by way of filling up 51 vacant posts within the quota of promotees.

57. In support of his aforesaid contention, he has placed reliance on a decision of the Apex Court in Arvind Kumar T. Tiwari and Anr. v. State of Gujarat and Ors. (2012) 9 SCC 545 : (AIR 2012 SC 3281) particularly, paragraph 10 of the said decision wherein the Apex Court considered the case of State of Haryana v. Subhash Chander Marwaha (1974) 3 SCC 220 : (AIR 1973 SC 2216) and J.C. Yadav (AIR 1990 SC 857) (supra) and Ashok Kr. Uppal v. State of J and K, (1998) 4 SCC 179 : (AIR 1998 SC 2812).

58. In Suresh Kumar Nayak (AIR 2011 SC (Supp) 604) (supra) the Apex Court has considered the case of S.P. Shivprasad Pipal (AIR 1998 SC 1882) (supra) as well as the case of State of Maharashtra and Anr. v. Chandrakant Anant Kulkarni and Ors. AIR 1981 SC 1990, wherein the Apex Court reiterated the principle that “mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not.” In the instant case, it is not the case of the petitioners that they will be deprived from their right to be considered for promotion due to exercise of power under Rule 34 by the Government relaxing the condition for recruitment. Rather their case is that condition of recruitment cannot be relaxed by way of residuary provisions of relaxation of rules which we are unable to accept in view of the decision of the Apex Court in J.C. Yadav (supra) as well as the decision in Arvind Kumar T. Tiwari and Anr. (AIR 2012 SC 3281) (supra).

59. By this time it is also settled that if particular contention of a party is not traversed by their opponent then the same should be considered as accepted. In the instant case, the petitioners admittedly did not file any re-joinder affidavit for traversing the contention of the respondent-State relating to their contention that the Subedars having experience of three years tenure may be eligible for the post of Assistant Commandant in TSR and the Assistant Commandant in TSR having 8 years of service experience are eligible for the post of Deputy Commandant of TSR as per the relevant recruitment rules and other contentions made therein. At the same time, the respondent-State also did not deny the allegation of the petitioner that while the Director General of Police sent the proposal for relaxation of the eligibility criteria as stipulated in Rule 14 of the 12th Amendment TPS Rules, no where mentioned that there are available number of persons in the feeder post of Subedar for consideration against their respective quota of 36% out of 50% of the quota earmarked for the promotees. On question of non-traversing of the contention learned counsel for both the parties have referred to the same decisions which we have noted earlier, thus, it is not necessary on our part to go for detailed discussion regarding those referred decisions.

60. The heart of the controversy lies in the question as to whether the Government has the power and can relax the condition of recruitment in the name of relaxation of “any rules”. We have discussed the decision referred by the learned counsel for the parties on power of relaxation. Now let us x-ray the judgment of the learned single Judge which is impugned in these appeals.

61. Learned single Judge at the time of allowing the writ petitions filed by the petitioners did not interfere with the memorandum dated 19th February, 2010 and Notification dated 9th March, 2010 wherein the proposal for relaxation was made to the Council of Minister and consequent thereto relaxed the condition made in Rule 14 of the Rules. As the learned single Judge upon examining the relaxation rules came to the conclusion that Rule 34 vests in the Government the power to relax for a class or category of persons or posts and the Government under the impugned notification seems to have relaxed the qualification for promotion for the entire class of feeder cadre of officers and has not adopted the policy of ‘pick and choose and as an exceptional case refrained himself from interfering with the notification dated 9th March, 2010 impugned therein, which is a policy decision being not unreasonable but passed the impugned order and for the purpose of justice and equity directed the State appellants to consider the case of the writ petitioners first in the impugned judgment. On proper screening of the judgment we are of the opinion that the learned single Judge though did not discuss in detail to what extent the Government can relax the condition in any rule exercising its power under Rule 34 to overcome the emergent situation where injustice might have been caused either to a person or a class or as a whole the public interest is going to be affected due to a situation when the Government is not in a position to fill up the vacant post due to non-availability of eligible persons on the basis of the prescriptions in the amended rules but obviously it can be said that the learned single Judge has given certain reasons for non-interfering with the memorandum and notification, as impugned in the writ petitions. At the same time, the learned single Judge though did not elaborately discuss that when the proposal made by the Director General of Police placed by the Principal Secretary before the Council of Ministers did not give complete feedback regarding the availability of eligible candidates to consider for promotion to TPS Gr-II before the Council of Minister but it seems that the learned single Judge has considered the said aspect.

62. Regarding the contention of the State appellants that the writ petitioners having not graduated, they were also not eligible for consideration without relaxation, has also been considered by the learned single Judge in paragraph 17 of the judgment wherein it is stated that since the State Government had accepted graduation degrees of the writ petitioners, pursuant to the Recruitment of Naib Subedars and Havildar Rules, 1996, State respondents are estopped from raising the question of educational qualification of the writ petitioners.

63. Learned Advocate General though re-agitated the question that the petitioners are not graduates being they have completed two years Bachelor Degree in place of three years Bachelor Degree, which requires to be a graduate, but the said plea was given up by Mr. Gupta and as a result the learned counsel for the writ petitioners also did not deal with the matter elaborately. However, as the question came up for consideration, it would be proper on our part to discuss on the said point also. According to Whartons Law Lexicon, Fourteenth Edition, ‘Graduates means “scholars who have taken a degree in a university” and in the instant case it is an admitted position that the petitioners, have also taken a degree from the recognized university before their entry into service as Naib Subedars. As per the Oxford English Dictionary, ‘Graduate means “One who has obtained a degree from a university, college or other authority conferring degrees”. Thus, we are unable to accept the contention that the writ petitioners are not graduates. As per Blacks Law Dictionary, sixth edition, ‘Graduate means “One who has received a degree, or other evidence of completion, from a grade school, high school, trade or vocational school, college, university, graduate or professional school, or the like”. Therefore, it cannot be said that to be a graduate a person has to receive a degree of either three years or after completion of two years bachelor degree has to complete another one year bridge course, as contended.

64. Now let us discuss as to whether without interfering with the impugned memorandum and notification wherein the proposal for relaxation is placed and ultimately, the condition prescribed in Rule 14 is relaxed, a direction as given by the learned single Judge can be issued. It is a settled position of law, that Court has the power to mould the relief in the interest of justice and more so, when a Court feels that the Government/authority has the power to relax the eligibility criteria including the conditions of recruitment to meet an emergent situation and such power of relaxation has been exercised by the Government/authority for the public interest but at the same time, some injustice has been caused to the justice seeker, like the writ petitioners who were eligible for consideration before relaxation of rules, then obviously the writ Court has the power to exercise its discretionary power to do justice by way of applying the principle of equity as would be evident from the decision of the Apex Court, in Air India Statutory Corporation, etc. v. United Labour Union and Ors., AIR 1997 SC 645 wherein the Apex Court discussed about the writ jurisdiction of a Court particularly under Article 226 of the Constitution and noted that, “The founding fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The court as essential in the qui vive is to mete out justice in given facts.” The Apex Court also stated that “the public law remedy given by Article 226 of the Constitution is to issue not only the prerogative writs provided therein but also any order or direction to enforce any of the fundamental rights and “for any other purpose”.

65. Here in the instant case, the learned single Judge might have exercised his discretionary powers considering the words, “for any other purpose” as by this time it is settled that a question fallen for consideration must be decided in a case with reference to the particular fact situation and the action and activity as concerned before it. In the instant case, admittedly the present petitioners had fulfilled the conditions prescribed in Rule 14 for consideration to the post of TPS Grade-II within their respective quota prior to relaxation of rules. Thus, we are unable to accept the contention of the learned counsel for the appellants-State that the decision of the learned single Judge is wholly perverse in absence of setting aside the impugned memorandum and notification.

66. In Tractor and Farm Equipment Ltd. v. Secretary to the Government of Assam, Dept. of Agriculture and Ors., (2004) 2 GLR 56 : (AIR 2004 Gau 73) a Division Bench of this Court while deciding a writ appeal noted, inter alia, “……one has to bear in mind that a writ appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior Court. The appeal inter se in a High Court from one Court to another is really an appeal from one coordinate Bench to another co- ordinate Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court nor can even the Supreme Court issue writ to a High Court. Thus, unlike an appeal, in general, a writ appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as a criminal appeal, where the whole evidence on record is examined a new by the appellate Court, the Judgment and/or order of the Single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or the judgment is against the established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing such a view may be to the Division Bench, it is the view adopted by the single Judge, which should, normally, be allowed to prevail.”

67. Again another Division Bench of this Court on Sonaram Baruah and Anr. (supra) at the time of admission of a writ appeal noted inter alia, “Admission of writ appeal is not a matter of right, like civil first Appeal or Criminal Appeal but when a prima facie case is made out for examining the judgment and order of the learned single Judge then only the Court should admit the appeal for hearing. Even if the opinion of the learned single Judge is erroneous then also the appellate Court cannot interfere with the order of the learned single Judge unless it is totally perverse and violative of provisions of law”.

68. The contention of the State appellants that the Subedars having experience of 3 years tenure may be eligible for the post of Assistant Commandant of TSR and the Assistant Commandant of TSR having 8 years of service are eligible for the post of Deputy Commandant of TSR as per relevant recruitment rules, we are not expressing any view as no specific plea has been taken before the learned Single Judge as to whether the rule framed in exercise of powers conferred by the proviso to Article 309 of the Constitution for the post of Assistant Commandant of TSR in the Department of Home (Police) vide Notification No.F.20 (4) – GA/85 dated 11th August, 1998 is in force or not. If the said rule is in force then the authority is free to consider the case of the eligible persons under the said rules including the petitioner, if they have fulfilled the prescriptions made therein.

69. On proper scrutiny of the Second Proviso to Rule 5, it appears that the Government/authority has the power to consider the case of either the group of Subedar or Inspector of Police in the feeder post for filling up the vacancies arising against the promotion quota when the members of either of the group are not available due to non-eligibility and the said aspect was also not placed before the Council of Ministers. As a result, the Council of Ministers did not get opportunity to consider that aspect. Had they been informed then they might not have agreed to the proposal for relaxation as for the feeder post of Subedar for whom 36% quota is earmarked. As a result, the Council of Ministers did not get any opportunity to take a conscious decision and acted only on the proposal for relaxation made in memorandum dated 19th February, 2010 upon which the impugned notification dated 9th March, 2010 was issued.

70. Learned single Judge admittedly did not interfere with the impugned memorandum wherein the proposal for relaxation was made and the notification dated 9th March, 2010, and accepted the contention that the Government has power of relaxation of any rule including the condition of recruitment like education qualification, experience and the age limit exercising its power vested on it under Rule 34, particularly when the Government is not in a position to fill up vacancies, but at the same time, learned single Judge also considered that though the writ petitioners were eligible for consideration of promotion to TPS Gr-II even prior to relaxation of the rules, their cases were not considered even though the vacancies were available, and the Council of Ministers were admittedly not informed regarding the availability of Subedars for filling up the posts of TPS Gr-II within the quota fixed for them and if received such an information the Council of Ministers might not have approved the proposal for relaxation of qualification at that stage and the cases of the petitioners could have been considered for filling up within their respective quota in terms of second proviso to rule 5 before relaxation. Taking note of the said aspect, learned single Judge directed for considering the cases of the petitioners first and then go for considering the cases of the others who became eligible after relaxation.

71. In view of the above, we are of the opinion that the direction of the learned single Judge for considering the case of the petitioners, at the first instance, depriving the others who became eligible after relaxation, created a separate class within the class, as contended by Mr. Gupta, cannot be accepted as the petitioners themselves are a class as they have earned their eligibility for consideration prior to relaxation of the rules. Thus, the direction of the learned single Judge is neither unreasonable not perverse and even not in disregard of any established principle of law. Hence, we are reluctant to interfere with the judgment of the learned single Judge. Appeals preferred by the State are dismissed.

72. As we have discussed in details, it is not necessary on our part to discuss separately the grounds taken by the writ-petitioners in their appeal WA 33/2012 as the petitioners have not even made out a prima facie case for admission of their appeal. Thus, the same is also dismissed.

No order as to costs.