Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 617 (KER)

K. Venugopal v. State of Kerala

2001-11-02

K.BALAKRISHNAN NAIR, K.S.RADHAKRISHNAN

body2001
Judgment :- Radhakrishnan, J. Government of Kerala by G.O. (Ms) No 161/2000/TD dated 9.11.2000 regularized the contract appointment of K. Venugopal, member (Accounts) of the Kerala Agricultural Income tax and Sales tax Appellate Tribunal with effect from 24.3.1996 purporting to be under Rule 39 of Part II of the Kerala State and subordinate Services Rules. The order of regularization was challenged by a person who has been included in the rank list published by the Kerala public Service Commission for appointment to the post of Member (Accounts) of Appellate Tribunal. Learned Single judge upheld the challenge and set aside the order of regularization passed by the Government. Challenging the same this appeal has been preferred. 2. We may, for the disposal of this case, refer the parties according to their status in the writ petition. Third respondent was appointed as member (Accounts) by the Government under Rule 9A of Part II of the Kerala State and Subordinate Service Rule (hereinafter called the Rules) for a period of one year, as per G.O. (Rt) 693/88/TD dated 24.12.1988, in the Kerala Agricultural Incometax and Salestax Appellate Tribunal (hereinafter referred to as Tribunal). He assumed charge on 2.1.1989. Government extended the period of service from time to time. As per the latest order, his term would expire on 30.6.2002. As per G.O. (Ms) No 74/98/TD dated 23.5.1998 and G.O.(Ms) 2/99/TD dated 2.1.1999 he was given scale of pay in the regular post of Member (Accounts) at Rs 4200-125-4700-150-5300 (pre-revised scale) with effect from 23.5.1998. 3.Government of Kerala appointed a Commission headed by Justice K.P. Radhakrishna Menon for restructuring the sales tax law in the State. Commission conducted a thorough study of sales tax law in the State and made inter alia, various suggestions with regard to the functioning of the Appellate Tribunal also. Paragraph 11.9 to 11.18 of the Commission report deals with various recommendations concerning Appellate Tribunal. Commission noticed in paragraph 11.12 of the report that some of the Accounts Members are still working in the Tribunal on a consolidated pay of Rs 5,000/- and that they are Chartered Accountants and have already gained considerable experience as Members of Tribunals. Consequently commission opined as follows: "11.12 The Accounts Members now working in the Tribunal are getting a consolidated pay of Rs 5,000/- They are Charted Accountants and have gained sufficient experience as Members of the Tribunal. Consequently commission opined as follows: "11.12 The Accounts Members now working in the Tribunal are getting a consolidated pay of Rs 5,000/- They are Charted Accountants and have gained sufficient experience as Members of the Tribunal. Considering the experience and expertise gained by them they have to be granted the pay scale allowance and service conditions of Members recommended above and their services are to be regularized and made permanent subject to the conditions of probation, if they have not already undergone. (emphasis supplied) Government presumably on the basis of the report of the Commission sent a letter dated 17.3.1998 to Secretary of Agricultural Income tax Appellate Tribunal to furnish details in connection with the regularization of Member (Accounts). After receiving letter from Government, Secretary of Tribunal furnished details of third respondent, vide his letter dated 17.7.1998. Details of third respondent as stated in the letter are as follows: " Shri K. Venugopal has been appointed on contract basis as per G.O. (Rt) No 693/88/TD dated of 24.12.1988. The officer joined duty on the F.N. of 2.1.1989. The period of contract appointed was extended as per G.Os mentioned. 1. G.O. (Rt) No 539 /89/TD dt. 2.11.1989 2. " No 348/90/TD dt. 28.6.1990 3. " No 304/91/TD dt. 2.5.1991 4. " No836/91/TD dt. 21.12.1991 5. " No 172/94/TD dt. 31.12.94 6. " No 70/95/TD dt. 17.2.1995 7. G.O. (Ms) No 89/95/TD dt. 1.4.1995 8. " No 285/95/TD dt. 30.6.1995 9. G.O. (Rt) No 4/96/TD dt. 2.1.1996 10 G.O. (Rt) No 315/96/TD dt. 28.6. 1996. 11 G.O. (Rt) No 320/97/TD dt.25.6.1997 12 G.O. (Rt) No 366/98/TD dt.24.6.1998 He has got 8 years and 11 months continuous service as on 1.11.1997 and is still continuing as Member (Accounts). The post held by him is a permanent one duly sanctioned by the Government. He is fully qualified to be appointed on regular basis as on 1.11.1997. ………………………………………………………………………………… I may also inform that, being the final fact finding authority, they have got a judicial bent of mind and is fully conversant with the subject. As they are performing their duties in an outstanding manner the Chairman of this Tribunal recommends that appointment of the above two members (Accounts) may kindly be regularized at an early date for the smooth functioning of this Tribunal. As they are performing their duties in an outstanding manner the Chairman of this Tribunal recommends that appointment of the above two members (Accounts) may kindly be regularized at an early date for the smooth functioning of this Tribunal. Chairman of Tribunal then vide his letter dated 30.7.1998 forwarded representation dated 20.7.1998 submitted by third respondent to the Government along with his comments for their consideration. The Chairman has stated as follows: "Shri K. Venugopal, Member (Accounts), Thiruvananthapuram has completed 9 years of continuous service and now he is fully qualified to hold the post. I am sure that his knowledge and experience acquired during the last 9 years would enable the efficient functioning of the Tribunal. I am definitely in favour of retaining Shri K. Venugopal. At present there are 8 posts of the member (Accounts) including that of 3 posts recently created in the Additional Benches. The Public Service Commission has called for only 3 posts of member (Accounts). So I am of the opinion that in the interest of work, his request for regularizing his appointments as Member (Accounts) in one of the remaining five posts, may be considered favourably." Government as per letter No 14963/D1/98/TD dated 24.11.1998 called for remarks from Joint Commissioner of Commercial Taxes with regard to the representation submitted by third respondents for the regularization of Member (Accounts) of the Tribunal. Joint Commissioner in his letter to Government number A1-43642/98/TX dated 22.12.1998 stated as follows: "Sri K. Venugopal has acquired sufficient experience as Member (Accounts). Perusal of the orders which have been issued in his name so far from the different benches of the Tribunal would clearly show that the orders are self speaking, dealing with the questions of facts and law minutely and are well balanced. In almost all the cases, which have been taken up before the High Court in Revision, his orders have been upheld. He is also noted for his integrity, which has been maintained throughout these years. At present there are 8 posts of Member (Accounts) in all the benches of the Appellate Tribunal of which three are being filled up through the Public Service Commission. Even if persons are recruited directly, they will have to gain experience. He is also noted for his integrity, which has been maintained throughout these years. At present there are 8 posts of Member (Accounts) in all the benches of the Appellate Tribunal of which three are being filled up through the Public Service Commission. Even if persons are recruited directly, they will have to gain experience. It is also not sure as to whether any of the three so recruited may rise to the stature of Sri K. Venugopal in the matter of efficiency as well as integrity. There are precedents wherein services of such persons have regularized. A copy of one such order is enclosed herewith for ready reference. The reason given in the said government order can be applied to Sri K. Venugopal also. It may not be in the best interest of the state to dispense with the services of Sri K. Venugopal. Third respondent had also submitted a representation on 26.2.1999 seeking regularization of his appointment, wherein he has stated as follows: I had given up my practice as a Charted Accountant in 1989 and joined the Tribunal in order to build up a career. I continued in service for the last ten years under the belief that my service would be regularized. If the job is suddenly taken away, I would be placed in a similar situation as contemplated by the Hon'ble Supreme Court of India in the case referred to above. I have been rendered age barred for securing a job elsewhere. Now it is impossible to set up practice afresh as a Chartered Accountant at this distance of time. As such, my fate would be left uncertain indefinitely. Taking into consideration the principles as laid down by the Hon'ble Supreme Court of India and Hon'ble High Court of Kerala and in the light of the various precedents referred to above and the recommendations of the Commissioner of Commercial Taxes as well as that of Justice Radhakrishna Menon commission Report and considering the long ten years of continuous service. Taking into consideration the principles as laid down by the Hon'ble Supreme Court of India and Hon'ble High Court of Kerala and in the light of the various precedents referred to above and the recommendations of the Commissioner of Commercial Taxes as well as that of Justice Radhakrishna Menon commission Report and considering the long ten years of continuous service. I pray that my service may be regularized at the earliest." Third respondent in the meantime also filed writ petition, O.P. No 17430 of 1999 before this court seeking a direction to State Government to consider his representation dated 20.7.1998 and 26.2.1999 in the light of the recommendation of the Commissioner of Taxes and also on the basis of the report of Justice Radhakrishna Menon Commission within a specified time. Learned judge of this court disposed of the writ petition on 13.7.1999 directing the State Government to pass orders as prayed for within a period of two months from the date of receipt of a copy of the judgment. 4. The Principal Secretary to Government then by his letter No, 14963/D1/98/TD dated 29.12.1999 informed the Kerala public Service Commission that the Government had taken a provisional decision to regularize the contract appointment of third respondent. Consequently they sought the advice of Commission for regularization of the contract appointment of third respondent. In the letter addressed to the Commission the Principal Secretary had stated as follows: " Sri K. Venugopal has acquired sufficient experience as Member (Accounts). Perusal of the orders which have been issued in his name so far from the different benches of the Tribunal clearly show that his orders are self speaking, dealing with the questions of facts and law minutely and are well balanced. In almost all the cases, which have been taken up before the High Court in revision, his orders have been upheld. He is also noted for his integrity, which has been maintained throughout these years. It will be difficult for the new recruits to rise to the stature of Sri K. Venugopal. Government have taken a provisional decision to regularize his contract appointment in the light of the judgment dated 13.7. 1999 of the High Court in O.P. No 17430/99. As per the Special Rules the minimum age qualification for appointment as Member (Accounts) is 35 years. Government have taken a provisional decision to regularize his contract appointment in the light of the judgment dated 13.7. 1999 of the High Court in O.P. No 17430/99. As per the Special Rules the minimum age qualification for appointment as Member (Accounts) is 35 years. But Sri Venugopal was 28 years of age as on 1.2.1989, the date on which he jointed duty as Member (Accounts). Therefore it is desirable to regularize the contract appointment of Sri Venugopal from the date on which he completed the age of 35. As per the aforementioned judgment this case had to be finalized by 23.9.1999. Since it was not finalized within the time fixed by the court, extension petition was filed on 22.9. 1999 seeking extension of time up to six months from 23.9.1999 for finalizing the case. In the circumstances I am directed to request that arrangements may please be made to place the matter before the Commission and to obtain and communicate their advice. In view of the time limit involved in the case, the advice of the Commission may be arranged to be conveyed at the earliest. 5. The public Service Commission by is letter dated 6.6.2000 expressed its disagreement. The letter states as follows: In inviting attention to the reference cited, I am directed to inform the Government that the Commission after having considered the matter in detail do not agree with the Government proposal under reference on the ground that it is against the consistent stand adopted by the Commission in all such cases. Moreover there exists a current ranked list for the above post which is ear-marked for direct recruitment by the Commission as per the existing provisions in the Special Rules." Government again addressed the commission by letter dated 29.12.1999 and 26.7.2000 for reconsideration of its earlier decision. Same was replied by the Commission stating that the commission does not find any new ground warranting reconsideration of the advice already tendered. Commission reiterated their original stand by their letter dated 21.8.2000. 6. The entire file was then placed before the Council of Ministers with a detailed note. The Cabinet granted approval for the regularization and consequently government issued G.O. (Ms)-No 161/2000/ TD dated 9.11.2000 stating as follows: " Government have examined the case, in great detail, in the light of the judgment read above. He is having the required qualifications for the post. The Cabinet granted approval for the regularization and consequently government issued G.O. (Ms)-No 161/2000/ TD dated 9.11.2000 stating as follows: " Government have examined the case, in great detail, in the light of the judgment read above. He is having the required qualifications for the post. Therefore, in consideration of his experience, expertise, integrity, quality of the orders passed by him and in view of the judgment read above, the matter was taken up(with the ) sic Public Service Commission for regularizing the contract appointment of Sri K. Venugopal. But Public Service Commission had not agreed to the proposal. Since the direction in the judgment read above has to be complied, Government have overruled the advice of Public Service Commission and hereby order to regularize the contract appointment of Sri K. Venugopal as Member (Accounts) in the Kerala Agricultural Incometax and Salestax Appellate Tribunal with effect from 24.3. 1996 i.e. the date on which the completed age of 35." 7. Counsel appearing for the writ petitioner Sri K.P. Dandapani challenged the above-mentioned order on various grounds. Counsel submitted that Government had committed grave error in regularizing the service of third respondent who was appointed under Rule 9A of Part II of the General Rules. Counsel submitted post of Member (Accounts) of Tribunal is included in category 1A of the Kerala Agricultural Incometax and Salestax service Rules. In terms of the said rule, method of appointment to the post is either by direct recruitment or by appointment on deputation of a Class I Officer of the Indian Audit and Accounts Service or an Officer in the rank of Inspecting Assistant Commissioner of Incometax of Indian Revenue Service. Counsel submitted substantive vacany of Member be filled up only in accordance with Special Rules. The order of the Government in regularizing the contract appointment of third respondent, according to the counsel, is illegal and arbitrary. Counsel submitted that public Service Commission as early as in 1995 published notification inviting applications for filling up the posts of Member (Accounts) in the Appellate Tribunals. After due process of selection, Public Service Commission published ranked list which came into force with effect from29.1.1999. Petitioner is given rankNo.3 in the list. From the list three candidates were already advised and appointed in the month of March 1999. After due process of selection, Public Service Commission published ranked list which came into force with effect from29.1.1999. Petitioner is given rankNo.3 in the list. From the list three candidates were already advised and appointed in the month of March 1999. According to the counsel, petitioner is the next person in the rank list to get appointment to the post of Member (Accounts) and therefore action of the Government in regularizing the contract appointment of third respondent is illegal. Reference was also made to a letter dated 27.12.1994 issued by the Special Secretary to Government to Heads of Departments and submitted that the said letter stating that candidates advised by the P.S.C. shall be accommodated in the existing posts against the vacancies in which provisional (temporary) employees are continuing on the basis of instructions issued by Government. Counsel also submitted that third respondent was not qualified for being appointed to the post of Member (Accounts). It is also his contention that there is nothing to show that Government has issued this order under Rule 39 Part II of the Kerala State and Subordinate Service Rules. Counsel pointed out that Ext. P6 order was passed as if this court had given a direction to the Government to regularize service of third respondent. Further it was pointed out the Commission report has not made any specific recommendation for regularizing the service of third respondent. 8.Senior counsel appearing for third respondent, Sri M.N. Sukumaran Naiar, on the other hand, contended that Government has got power to regularize service of third respondent under Rule 39 of Part II of the General Rules. Counsel submitted it is after considering all the aspects of the matter and on the basis of relevant materials Government has exercised powers under Rule 39. Counsel pointed out that Government has power to invoke the said rule to deal with the case of any candidate for appointment to service in such manner as may appear to it just and equitable. Counsel submitted that third respondent was qualified Chartered Accountant when he was appointed. He has been discharging his duties as a Member of the Tribunal with exemplary skill and ability. Best part of his career as a Charted Accountant has been spent as Member of the Tribunal. He has put in about twelve years of service. It is inequitable and unjust to send him out of service now. He has been discharging his duties as a Member of the Tribunal with exemplary skill and ability. Best part of his career as a Charted Accountant has been spent as Member of the Tribunal. He has put in about twelve years of service. It is inequitable and unjust to send him out of service now. He has proved his ability as Member of Tribunal and all authorities have been satisfied about his expertise, integrity and quality of work. Counsel submitted that third respondent is now aged 40 years. Government passed the order after having fully satisfied that regularization of third respondent would be in the best interest of the functioning of the Tribunal. Government was dealing with the issue after having found that it would be just and equitable to regularize the service of third respondent. Counsel also pointed out various instances where Government had invoked powers under Rule.39. Counsel submitted this is eminently a fit case where Government could exercise its powers under Rule 39. Counsel submitted that petitioner has no right to challenge the order of Government since he is no more in service and is not adversely affected. Counsel submitted mere inclusion in the rank list will not confer any right on him to challenge the government order which was issued in public interest. Further, the notification issued by the Service Commission was for three vacancies and all the three vacancies have been filled up. 9. The power of the Government to invoke Rule 39 cannot be disputed. It is fairly clear that the Government was invoking Rule 39 to deal with the case of the third respondent though the provision as such was not quoted in the order. Before we deal with the validity or otherwise of the order passed by the Government we may examine the scope of the said rule. For easy reference the rule is extracted below: "39. Before we deal with the validity or otherwise of the order passed by the Government we may examine the scope of the said rule. For easy reference the rule is extracted below: "39. Notwithstanding anything contained in these rules or in the Special Rules of in any other Rules or Government Orders the Government shall have power to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable." We need not labour much to examine the scope and ambit of the said rule since scope of the said rule directly came up for consideration before a Full Bench of this court in T.C. Sreedharan v. State of Kerala (1973 K. L. T. 151). Rejecting the challenge against the vires of the said Rule, Full Bench held as follows: " The rule is valid and it does not suffer from the vice of arbitrariness or excessive delegation. The rule does not warrant the passing of any general order with respect to any undefined or large group of persons exempting them from the operation of any existing rule or granting a relaxation of the rules in favour of such a group. The rule only authorizes the authority designated therein to deal with any specific case or cases of individual officers and to pass orders in a just and equitable manner after a full application of the mind of the authority to all the relevant facts and circumstances necessary for a proper determination of the question as to what would constitute justice and equity. In exercising this power it is open to the authority to relax the rigour of the rules to such extent as may be necessary to ensure justice and equity, but it cannot completely nullify the operation and effectiveness of the rules in the guise of relaxing their rigour. If, however, special circumstances do exist warranting a valid classification of any particular case or exercising the power under the rule to accord a special treatment in respect of such exceptional cases even by exempting the person or persons concerned from the operation of any particular rule. If, however, special circumstances do exist warranting a valid classification of any particular case or exercising the power under the rule to accord a special treatment in respect of such exceptional cases even by exempting the person or persons concerned from the operation of any particular rule. Such a course will be permissible only in those rare cases where very strong grounds exist justifying a valid classification of the cases of the officers in question for the purpose of articles 14 and 16 of the Constitution. A bench of this court in Narayanan V. State of Kerala (1981 KLT 321) also upheld the order invoking Rule 39 and granted relief accordingly. The Scope and ambit of that rule again came up for consideration before a Full Bench of this court in Baburaj v. State of Kerala 1994 (2) K L J 618). In that case Full Bench upheld the order of the Government regularizing the services of a set of employees retrospectively in exercise of residuary powers conferred by Rule 39. We may in this connection also refer to the decision of apex court in Government of Andhra Pradesh v. D. Janradhana Rao (1976 (4) S.C.C. 226) wherein the apex court was considering the scope of Rule 47 of the Andhra Pradesh State and Sub ordinate Service Rules. Government invoked the said rule and relaxed the rigour of rule 74 of the Special Rules. Rule 47 stipulates that no rule made under the proviso to Article 309 of the Constitution of India or continued under Article 313 of the Constitution shall be construed to limit or abridge the power of the Governor to deal with the case of any class or category of person for being appointed to any civil post, or of any person serving in a civil capacity under the government of Andhra Pradesh in such manner as may appear to him to be just and equitable. While dealing with the said rule, apex court held: " Clearly the power under Rule 47 is to be exercised in the interest of justice and equity. The occasion for acting under Rule 47 may well arise after the attention of the Government is drawn to a case where there has been a failure of justice. While dealing with the said rule, apex court held: " Clearly the power under Rule 47 is to be exercised in the interest of justice and equity. The occasion for acting under Rule 47 may well arise after the attention of the Government is drawn to a case where there has been a failure of justice. In such cases justice can be done only by exercising the power under Rule 47 with retrospective effect, otherwise the object and purpose of the rule will be largely frustrated. The above decision was subsequently followed in P.V.T. Philip v. P. Narasimha (1993 (Supp) 3 S.C.C. 438). 10. Aforementioned judicial pronouncements would show that Government has got the power and at times a duty to invoke the said rule in meeting out justice. When Government exercised the power under Rule 39 it has to act in a just and equitable manner. For determining what is just and equitable Government should take into Account all the relevant aspects of the matter after full application of mind. If it applies the principles of just and equitable it would be just and equitable not only to Government as well as to person in whose favour power is exercised. In other words, it should be just and equitable to both sides and to the public at large, whose interest state has to safeguard. The predominant consideration of Government while invoking Rule 39 is not merely the interest of person in whose favour the rule is invoked, equally interest of State as well. 11. We may examine the order passed by the Government and determine whether the order satisfies the tests laid down by the apex court as well as this court in applying the principle of just and equitable. This is a case where third respondent was appointed by the Government in the year 1988 invoking Rule 9A of Part II K.S. & S.S.R. He is functioning as Member (Accounts) of the Tribunal for nearly ten years. Necessity of regularization of such contract appointees or such person who has been continuing as Member(Accounts) on contract basis was highlighted in the report of Justice Radhakrishna Menon Commission. Commission noticed those who have been working in the Tribunal as Chartered Accountants and have gained sufficient experience as Members of Tribunal. Necessity of regularization of such contract appointees or such person who has been continuing as Member(Accounts) on contract basis was highlighted in the report of Justice Radhakrishna Menon Commission. Commission noticed those who have been working in the Tribunal as Chartered Accountants and have gained sufficient experience as Members of Tribunal. Commission opined considering the experience and expertise gained by them they have to be granted pay scale of regularly appointed members. Commission also recommended that their services are to be regularized and made permanent subject to conditions of probation if they have not already undergone. On the basis of the said report, as we have already indicated, Secretary of Tribunal, conveyed the recommendations of Chairman of Tribunal that the service of Member (Accounts) have to be regularized for the smooth functioning of the Tribunal. Request made by the third respondent was routed through Chairman of Tribunal. He forwarded the same along with his letter dated 30.7.1998. He opined that knowledge and experience acquired by the third respondent for last nine years would enable efficient functioning of the Tribunal. Joint Commissioner of Commercial Taxes had also written to Principle Secretary to Government that it would be in the best interest of State not to dispense with services of third respondent. He also found even if persons are recruited directly they will have to gain experience and he was also not sure whether they would rise to stature of third respondent in the matter of efficiency as well as integrity. All those materials were placed before Council of Ministers who granted their approval for regularization of service of third respondent as Member (Accounts) Tribunal. 12. The Government found that third respondent was having required qualification for the post. Government was also satisfied about the experience, expertise, integrity and quality of orders passed by him. The letters dated 17.7.1998 as well as letter dated 30.7.1998 would show that continued service of third respondent as Member (Accounts) of Tribunal would enable efficient functioning of Tribunal. Letter dated 22.12.1998 sent from the office of the Commissioner of Commercial Taxes would also show that third respondent had acquired sufficient experience as Member. The letters dated 17.7.1998 as well as letter dated 30.7.1998 would show that continued service of third respondent as Member (Accounts) of Tribunal would enable efficient functioning of Tribunal. Letter dated 22.12.1998 sent from the office of the Commissioner of Commercial Taxes would also show that third respondent had acquired sufficient experience as Member. We are convinced on perusal of the files that while it took the decision to regularize the service of third respondent as Member (Accounts) of the Tribunal the Government took into consideration all the relevant aspects and the opinion of all who are acquainted with the functioning of the Tribunal. Government was satisfied about experience, expertise and quality of orders passed by third respondent and felt his services would be effectively utilized in the best interest of the State as Member of Tribunal. Government also noticed that third respondent has been in continuous service from1988 onwards. He was given regular scale of pay of Member (Accounts) with effect from 23.5.1998 He is a qualified Chartered Accountant entered service in 1988. Government felt it would be inequitable if his services are terminated at this distance of time. Government found that the third respondent by serving the Tribunal has gained experience and ability, and no adverse materials have come to the notice of the Government. Government felt his service would be better utilized rather than sending him out which would be unjust and inequitable. We are of the view equity and justice lay in favour of third respondent. He has served in the capacity of Member (Accounts) with merit and distinction to the satisfaction to the Government. Thus the anxiety shown by the Government to utilize his services by extending the period of contract appointment for a number of times is a recognition of his quality of work. 13. We may point out in this case petitioner has not raised any allegation of malafides against Government or has questioned experience, integrity or quality of work rendered by third respondent. Petitioner also could not establish regularization of third respondent would in any way violate the Rules, especially when non- obstante clause has been employed in Rule 39. Rule 39 gives power to Government to deal with a case in such manner as may appear to it to be just and equitable. While issuing orders under Section 39 government is exercising a statutory power. Rule 39 gives power to Government to deal with a case in such manner as may appear to it to be just and equitable. While issuing orders under Section 39 government is exercising a statutory power. Petitioner has no case that Government has acted arbitrarily or irrationally. This court sitting in the jurisdiction under Art. 226 of the constitution of India is not justified in accepting the challenge against the order passed by the Government in exercise of its statutory powers which we have already found, exercised in a just and equitable manner. The High Court would exercise its powers under Article 226 of the Constitution for the limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out whether there has been violation of the principles of natural justice which vitiated entire proceedings or the authority exercising jurisdiction had not been vested with jurisdiction. It is trite law that judicial review under Article 226 of the Constitution is not directed against the decision but is confined to the decision making process. If the Government has got power to take a decision and in exercise of the said power the Government arrives at a decision after taking into account irrelevant facts this court would not interfere under Article226 of the Constitution of India on the ground that the said decision is not correct in its view. If the Government acts within its jurisdiction and in accordance with law, this court would not further enquire into the wisdom or otherwise of the decision. We are of the view learned single Judge in exercise of power under Article 226 of the Constitution of India has substituted his opinion to that of State Government which cannot be sustained in the eye of law. 14. Counsel appearing for petitioner further contended that third respondent is not qualified to be appointed to the post of Member (Accounts) of Tribunal. We find that third respond is qualified Charted Accountant and has satisfied all conditions for being appointed as Member (Accounts) of Tribunal as per Rules. He has also satisfied age limit of 35 prescribed as per Special Rules as on 24.3.1996. Government has regularized the service of third respondent only with effect from 24.3.1996. Qualification prescribed under the rule has been satisfied by third respondent. He has also satisfied age limit of 35 prescribed as per Special Rules as on 24.3.1996. Government has regularized the service of third respondent only with effect from 24.3.1996. Qualification prescribed under the rule has been satisfied by third respondent. There is an existing rank list for the above post prepared by the Service Commission mainly for direct recruitment as per the existing provisions of the Special Rules. Rule 39 of the General Rules confer power on the Government notwithstanding anything contained in any other rules or government orders. Therefore, even if there is a current rank list available, Government has got power under Rule 39 to regularize the service of third respondent which we have already found validly exercised in a just and equitable manner. Even though third respondent had applied in pursuance of notification he was not eligible since he did not satisfy the age limit of 35 years on the prescribed date, and therefore application could not have been entertained though he had undergone selection process as per the direction of this court. 15.Counsel for the petitioner submitted that the Government acted as if this court had directed the Government to regularize the service of third respondent. We are convinced that the Government had taken the decision on relevant materials and not on direction given by this court. This court only directed consideration of the case and has not given any positive direction to regularize the service of third respondent. We are satisfied Government had acted in a just and equitable manner on the basis of the materials placed before it and not on the basis of the direction given by this court. Counsel for the petitioner submitted that the Government has not properly maintained the equation between the Member (Accounts) and Member (Judicial) in the various Benches of the Tribunal. Counsel submitted, if so maintained the petitioner would have got appointment in the normal course since he is in the rank list. We are of the view this is a matter for the Government to consider. In view of the above mentioned reasons we find no infirmity in the order passed by the Government regularizing the service of the third respondent. We uphold the said order and set aside the judgment of the learned single judge. The appeal is allowed.