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2008 DIGILAW 523 (AP)

B. Venkatriah v. Government of Andhra Pradesh

2008-07-16

G.CHANDRAIAH, V.V.S.RAO

body2008
V.V.S. RAO, J :- The power to relax a condition of service or a rule laying a condition of service is an exception to general principle that all must be treated equally in the matter of public employment. So as to remove hardship resulting from application of rigorous rule, competent authority is conferred with power of relaxation in appropriate cases. Can such competent authority in purported exercise of discretion discriminate between two employees who are almost similarly situated, without following Articles 14 and 16 of the Constitution of India? That is the short question, which is thrown up by present writ petition filed by a last grade employee in the Unit of District and Sessions Judge, Nalgonda. 2. Sri B. Venkataiah, petitioner, was appointed as part time/contingent Masa1chi and subsequently upgraded to post of full time contingent employee. He is now working as waterman/gardener in the Court of Principal District and Sessions Judge, Nalgonda. Whatever be the reason behind it, High Court directed of Principal District Judges in the State to send particulars of all qualified full time and part time Masalchies for regularization. Pursuant to such communication dated 6.1.2004, petitioner's case was forwarded by third respondent. Having found that petitioner was over aged by two months with reference to cut-off date, a letter dated 30.2.2004 was sent requesting Govemment to relax condition purportedly in exercise of power under Rule 31 of Andhra Pradesh State and Subordinate Service Rules 1996 (the Rules, for brevity). Government negatived it, which was communicated by impugned order in G.O. Rt. No.l75, dated 27.1.2007. The same is assailed in the writ petition inter alia on the ground that when similar benefit of relaxation was given to another employee, namely, 8mt. M 8akkubai, denial of same benefit to petitioner is discretionary and violative of Articles 14 and 16 of the Constitution. 3. The Secretary to Government in Law (Legislative Affairs and Justice) Department filed counter-affidavit. Justification for the impugned order is found in Paragraph 3, which reads as under: In reply to the grounds in Para (6) of the affidavit, I respectfully submit that the petitioner has been seeking relaxation of age while he did not indicate the exact date of birth anywhere in the affidavit. Further, even in the proposal sent by the Registrar General, High Court of Andhra Pradesh, Hyderabad in his letter Roc. Further, even in the proposal sent by the Registrar General, High Court of Andhra Pradesh, Hyderabad in his letter Roc. No.2708/2003/ D 1 (5), dated 30.10.2004, it is reported that the petitioner has not given his date of birth and as such, his age as on 30.9.2004 could not be furnished by the Registrar General, High Court of Andhra Pradesh. 4. This Court heard submissions of learned Counsel for petitioner and learned Assistant Government Pleader for Home, who reiterated their position in the pleadings. 5. The submission that in the absence of correct date of birth of petitioner, power under Rule 31 of the Rules cannot be exercised, is misconceived. There is no dispute or denial that petitioner and two others earlier filed writ petition being WP No.25431 of 2002 seeking a writ of mandamus directing respondents to convert post of full time contingent employees to last grade service by relaxing age and regularize their services. Government opposed the writ petition. The High Court through its Registrar (Administration) filed counter-affidavit stating that petitioner is over-aged by two months and that he made representation for relaxation, which is being forwarded to Government. This fact of the matter was not specifically denied by the Government. Having regard to the statement made by High Court, this Court disposed of the writ petition on 3.8.2006 directing· Government to pass appropriate orders. In this background, denial of relaxation only on the ground that correct date of birth is not given, cannot be accepted. 6. Petitioner is semi-literate and no one can expect that there would be record of his date of birth or his date of birth is registered with Registrar of Births and Deaths. In such an event, best proof of age would be a Doctor's certificate as to age of a candidate or as in this case recommendation made by competent Head of the Department i.e., High Court. When the Registrar of High Court on oath made a statement in the counter that petitioner is over-aged by two months, there cannot be any reason to doubt the same. Government in that view of the matter 111isdirected itself in passing the impugned order. 7. In Paragraph 4( c) of the affidavit accompanying writ petition, petitioner alleged that on a recornmendation being made by High Court, Government relaxed age in favour of Smt. M Sakkubai in G.O. Rt. No.1721, dated 2L10.2002. Government in that view of the matter 111isdirected itself in passing the impugned order. 7. In Paragraph 4( c) of the affidavit accompanying writ petition, petitioner alleged that on a recornmendation being made by High Court, Government relaxed age in favour of Smt. M Sakkubai in G.O. Rt. No.1721, dated 2L10.2002. This is not denied I in the counter. When the recornmendation of High Court was accepted in favour of Smt. Sakkubai, reasons much less valid reasons for denying same benefit to petitioner are not forthcoming. Even if there are perceived reasons, they do not stand to scrutiny of Court, as it is discrimination on the face of it. Initially this Court already issued mandamus directing Government to consider case of petitioner for age relaxation. Government rejected the same on the grounds, which are not germane for exercise of power under Rule 31 of the Rules rejected the same. Therefore question is whether a writ of mandamus can be issued directing Government to grant relaxation to petitioner with regard to his age. 8. This Court shall not ordinarily issue a mandamus to regularize services of a person because, such a direction at the initial stage amounts to depriving the competent employer right and liberty to enter into a contract of service. That is basic principle in not issuing a direct mandamus to regularize a person. However, when on an occasion this Court in the exercise of extraordinary prerogative power of issuing writs, directed the respondents to consider the case of the petitioner for regularisation and the same is rejected in an illegal manner, it is always open and well within the powers of judicial review, for this Court to step into the shoes of the appointing authority and issue a mandamus in the nature of mandatory order directing respondents to regularize the petitioner as full time contingent employee. This principle is well settled. A mandamus in the nature of a mandatory order in service Jurisprudence is subject to a precondition that the Court should first declare the impugned action as illegal and unconstitutional. In the present case, we have come to the conclusion that the action of Government in issuing the impugned order is illegal and deserves to be declared as such. We do so. In the present case, we have come to the conclusion that the action of Government in issuing the impugned order is illegal and deserves to be declared as such. We do so. This view is supported by two binding precedents of Supreme Court in The Comptroller and Auditor General of India v. K.S. Jagannadhan, AIR 1987 SC 537 and O.P. Gupta v. Union of India, AIR 1987 SC 2257 . 9. In Jagannadhn's case (supra), it was contended that High Court should not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. The contention was repelled by the Supreme Court in the following words: There is a basic fallacy underlying this submission - both with respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the respondents in their writ petition. What the Division Bench did was to issue directions to the appellants in the exercise of its jurisdiction under Article 226 of the Constitution. Under Article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate cases, any Government, throughout the territories in relation to which it exercises jurisdiction, directions, orders or writs including writs in the nature of habeas corpus, directions, orders or writs including writs in the nature of habeas corpus, mandamus, quo warrant and certiorari, or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath v. Income Tax Officer, Special Circle, Kanpur, AIR 1966 SC 81 , this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country." 10. The apex Court held that the High Court was justified in giving directions to the appellant to give suitable relaxation to the respondents-employees. The apex Court held that the High Court was justified in giving directions to the appellant to give suitable relaxation to the respondents-employees. After referring to Mayer of Rochester v. Regina, 1858 FB&E 1024, 1032, 1034, The King v. Revising Barrister for the Borough of Hanley, (1912) 3 KB 518, Padfield v. Minister for Agriculture, Fisheries and Food, 1968 AC 997 and the statement of law as enunciated in Halsbury's Laws of England (4th Edition, you, Para 89), the Supreme Court laid down as follows: There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or in ' irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226 issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the peifonnance in a proper and la»ful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and la»fully exercised its discretion. (emphasis supplied) 11. (emphasis supplied) 11. In O.P. Gupta's case (supra), dealing with the case involving interpretation of F.R. 25 and F.R. 54 of the Fundamental Rules under which the authorities were required to pass necessary orders after issuing notice under F.R.54 regarding pay and allowances to be paid to the Government servants for the period of absence and whether or not the period of suspension shall be treated as on duty, the Supreme Court, while allowing the appeal of the employee, observed as follows: The stoppage of such increments at the efficiency bar during the pendency of a departmental proceedings is· not by way of punishment and therefore the Government servant facing a departmental enquiry is not entitled to a hearing. Ordinarily, therefore, the Court does not come into the picture at that stage. But in a case like the present where dispute the fact that the departmental inquiry against the appellant had been quashed, and it had been held by the High Court that his suspension was wholly without jurisdiction, there was no occasion for the competent authority to enforce the bar against him under FR.25, particularly after his retirement, unless it was by way of punishment That being so, the order passed by the competent authority under FR.25 prejudicial to the interests of the appellant in such circumstances must be subject to the power of judicial review........... It enjoins that the cases of Government servants for crossing of the efficiency bar in the time-scale of pay should be considered at the appropriate time and in case the decision is to enforce the bar against the Government servant, he should be informed of the decision. This clearly implies that the competent authority must conform to the rules of natural justice. It would be a denial of justice to remit back the matter to the competent authority to reach a decision afresh under FR. 25, in the facts and circumstances of the present case. (emphasis supplied) 12. It is therefore well settled that ordinarily in service matters Court of judicial review could not be inclined to issue a mandamus in favour of aggrieved person. A mandamus is initially issued directing competent authority to consider case of petitioner or aggrieved person. If there is a failure in complying with the same, nothing precludes the Court of judicial review to issue mandamus. A mandamus is initially issued directing competent authority to consider case of petitioner or aggrieved person. If there is a failure in complying with the same, nothing precludes the Court of judicial review to issue mandamus. Applying the same principles, we allow writ petition and direct the Government to grant relaxation to petitioner with regard to his age. There shall be no order as to costs.