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PETITIONER: SANDEEP KUMAR SHARMA

       Vs.

RESPONDENT: STATE OF PUNJAB AND OTHERS

DATE OF JUDGMENT:       24/02/1997

BENCH: MADAN MOHAN PUNCHHI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T THOMAS. J.      Leave granted.      Appellant was  one of  the candidates before the Punjab Public Service  Commission for  selection to  the  cadre  of Deputy Superintendent  of Police.  He was  found fit  in all respects except  the height  factor for  which he  was found deficient  by   1.20  cms.   However,  he  was  selected  as Government of  Punjab relaxed  the requirement  of  physical fitness  as   for  him   in  special  consideration  of  the meritorious service  rendered by  his  brother  (one  Satish Kumar Sharma, IPS) during the time when State Government was involved in  a massive  exercise for containing terrorism in Punjab. Third respondent challenged the said selection as he could secure only a post of Deputy Superintendent of Jail. A Division Bench  of the Punjab and Haryana High Court quashed the selection  of the  appellant as Deputy Superintendent of Police and  directed the  Government to  make appointment in the consequential vacancy from among the candidates who have been selected.  The said  judgment is  now  under  challenge before us.      Some more  facts are  necessary to  decide the question raised before us. Punjab public Service Commission published an advertisement  on 12.6.1996 as follow up of a requisition made by  the Government of Punjab, inviting applications for 20 posts  of Deputy  Superintendent of Police and 6 posts of Deputy Superintendents  of Jail/District  Probation Officer. appellant  and  third  respondent  were  among  the  various candidates who  submitted  applications  for  the  aforesaid posts. In  the written test conducted on 25.2.1994 appellant was found  short in  height by  1.20 cms.  In the meanwhile, Government formulated  a policy  on 6.2.1994 to show special consideration towards  "relatives of  those who  have either suffered due to terrorism or have faced terrorism boldly and have contributed  towards overcoming  it". It  appears  that Government felt  that "on  account of  their background  and circumstances  such   individuals  are   bound  to  be  more dedicated and committed". When appellant was found deficient to fit in with the requirements very marginally he moved the Government for  relaxation of  the  Specification  regarding

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height in his case. Government passed an order on 14.5.1994, the operative part of which reads thus:      In this  view of  the matter it has      been  considered   to  give   minor      relaxation  in  physical  standard,      provided   such   persons   possess      prescribed    qualifications    and      qualify   in   the   written   test      conducted  by   the  Punjab  Public      Service Commission and are suitable      in all  other respects.  The latest      request  dated  13.5.1994  of  Shri      Sandeep   Kumar   Sharma   (younger      brother  of   Shri   Satish   Kumar      Sharma,  IPS)   who  is   presently      posted as  SSP, Ferozepur  and  who      has  rendered   useful  service  in      tackling  terrorism   and   brining      normalcy for  giving relaxation  in      height 1.20 cms. for recruitment to      the post  of Deputy  Superintendent      of Police  has been  considered and      acceeded to."      Thereupon,, appellant  was called  for vivavoce  and he was included  in the  list of  selected candidates  and  was later  appointed  as  Deputy  Superintendent  of  Police  on 10.8.1994. Third  respondent was selected with first rank in the  list   for  the   post   of   Deputy   Superintendents, Jail/District Probation  Officers and  he was  appointed  as Deputy Superintendent, Jail on 8.9.1994.      Third respondent  and  another  person  challenged  the selection and  appointment of  the appellant before the High Court mainly on the ground that appellant did not fulfil the requirement enumerated in the advertisement issued by Punjab Public Service  Commission and  that the  Government have no power  to  relax  without  specifically  indicating  in  the advertisement itself  that specifications  are liable  to be relaxed.  Another   ground  taken   up  was  that  power  of relaxation contained  in Rule  14 of  Punjab Police  Service Rules 1959  (‘Service Rules’ for short) cannot be invoked in the case of one individual.      The Division  Bench of the High Court Examined the file relating to the impugned selection and found that relaxation was granted  by the Government only in the case of appellant and that  the policy was evolved by the Government solely to help the  appellant which  is nothing  but an  act of  sheer favoritism. Learned  Judges of  the High Court observed that Rule 7  and Rule  14 of the Service Rules cannot be regarded as empowering the Government to grant relaxation in physical standard as  a measure  of favoritism. On the above premises the Division  Bench quashed  the selection  of the appellant and directed  the State  Government to  fill up  the vacancy within thirty days.      Before we  proceed to  consider the merits of the case, we may point out that none of the parties before us disputed about  the   worthiness  in  formulating  a  policy  by  the Government  of  Punjab  for  showing  recognisition  to  the services rendered  by those  police  personnel  who  bravely faced the dastardly acts unleashed by the terrorists. If so, there is nothing improper in giving special consideration to the kith  and kins  of such policemen and those who suffered on account  of terrorists’ activities. We may also point out that before  the High  Court neither  the Government nor the third respondent  disputed the  factual position that Satish Kumar Sharma,  (appellant’s brother)  had rendered efficient

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and  useful   service  as   a  Police  Officer  in  tackling terrorists’ menace.  (of course, a faint attempt was made by the third  respondent before us to dispute that fact, but as he did  not raise  any dispute  us to dispute on that aspect before the  High Court,  we are  not inclined to countenance the said contention now).      Rule  7   of   the   Service   Rules   stipulates   the qualifications  necessary  for  direct  recruitment  to  the service. Sub-clause  (iii) of  clause (i) of Rule 7 requires that the  candidate should  have "a  minimum height of 5’ 7" (167.5  cms)  and  normal  chest  measurement  of  33"  with expansion of  1 1/2.  The second  proviso to  clause (i)  is important and it is extracted :-      Provided further  that the physical      standard prescribed  in  sub-clause      (iii) shall  not be relaxed without      special     sanction     of     the      Government."      Rule 14  contains the  general power  of Government  to relax rules. It reads thus:      "General  power   to  relax  rules;      Where  the  Government  is  of  the      opinion that  it  is  necessary  or      expedient  so  to  do,  it  may  by      order, for  reasons to  be recorded      in  writing   relax  any   of   the      provisions  of   these  rules  with      respect to any class or category of      persons."      It is clear that while Rule 14 permits relaxation for a class  or   a  category   of  persons,   Rule  7   preserves Government’s  power   to  relax  the  physical  standard  in individual  cases.  In  the  present  case  Rule  7  is  the appropriate Rule  and it was not necessary to embark on Rule 14 at  all. But we have noticed that the Deputy secretary of Home (Government  of Punjab  who had  sworn to  the counter- affidavit before the High Court for the State Government has sought to  justify the  relaxation  made  by  Government  by confining to  Rule 14 of the Service Rules alone. Why did he adopt such  a stand  when there  is a  specific  Rule  which empowered the  Government to give relaxation of the physical standard, is  something we  cannot understand or appreciate. Why should  the deponent  have by-passed  Rule 7 which is so explicit in  the context?  Any way  since the  appellant has referred to  Rule 7 as the relevant rule we are not disposed to consider the amplitute of Rule 14 in the case.      The High  Court seems  to have  taken the view that the only  beneficiary   of  the   aforesaid  relaxation  is  the appellant and hence considered it an act of favoritism shown to him.  According to  the  learned  Judges  "the  so-called policy was  formulated after  the result of the written test was announced with the sole object of securing selection and appointment  of  the  aforesaid  candidate  because  without clearing the  standard of physical fitness he could not have been interviewed by the Commission. This, in our opinion, is nothing but an act of sheer favoritism".      Appellant cannot be blamed for being the only candidate available  at   present  seeking   relaxation  of   physical standards. The same benefit could also have enured to anyone else situated  in the  same position  as the  appellant  had there been any. Policy-wise it is not possible to think that appellant would have been the only kith and kin of those who suffered on  account of  the activities of the terrorists in Punjab or  those who  faced terrorism  bravely. Perhaps,  in this particular  selection appellant happened to be the only

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beneficiary of  the policy.  Nor can  we find any mala fides merely because government evolved the policy on the occasion when appellant  approached for  relaxation of  the standard. The occasion  would  have  provided  to  the  government  an opportunity to  recapitulate the  events and  thus to remind themselves of  the plight  of those  families which suffered traumatic  experiences   when  their   kith  and   kin  were relentlessly involved  in continued  operations fighting the terrorists  who  using  hideouts  to  strike  blitz  against innocent people  as well as the police force intermittantly. A government  may have  to act on some occasion for chalking out a  particular policy.  If any  particular  occasion  has alerted the  government to the necessity for taking a policy decision it  is hardly  sufficient to attribute mala fide of favoritism to the government.      In  Atlas  Cycle  Industries  Ltd.  Sonepat  vs.  Their Workmen: [1962]  Suppl. 3  SCR 89;  a Constitution  Bench of this Court considered the question whether a policy taken in the wake  of an individual’s case would offend Article 14 of the Constitution  as the  object then  would  have  been  to benefit a  particular person.  In that  case  Government  of Punjab  raised  the  age  of  retirement  of  the  Presiding Officers of  Industrial Tribunals from 65 to 67 on 3.6.1957. One incumbent  Sri A.N.Gujral would have attained the age of 65 on  4.6.1957). The  Bench  repelled  the  contention  and observed thus: "the occasion which inspired the enactment of the  statute  might  be  the  impending  retirement  of  sri A.N.Gujral. But  that is not a ground for holding that it is discriminatory and  contravenes Article  14, when  it is, on its terms, of general application."      It is  useful to refer to the interpretation given to a similar relaxation clause in service law by a Bench of three judges of  this Court  that it must be liberally considered. (vide JC  Yadav and ors. vs. State of Haryana and ors. [1990 (1) SCR  470]. The  power of  relaxation even  if  generally included in  the service  rules  could  either  be  for  the purpose of  mitigating hardships  or  to  meet  special  and deserving situations.  Such rule mus be construed liberally, according  to   the  learned  Judges.  Of  course  arbitrary exercise of such power must be guarded against. But a narrow construction  is  likely  to  deny  benefit  to  the  really deserving cases.  We too  are of  the view  that the rule of relaxation must get a pragmatic construction so as policy of the government.      Learned counsel  for the  third respondent has referred to the  decisions of  this Court  in District  Collector and Chairman, Vizianagram  vs. Tripura  Sundari Devi [JT 1990(2) SC 169  and Hoshiar  Singh vs.  State of  Haryana  and  ors. [JT1993 (5)  SC 63.  The former is relied on by the Division Bench of  the High  Court  in  the  latter  decision.  Those decisions relate  to cases  where relaxation of the Rule was made by  the selection  board. This Court observed that when advertisement was  silent about  relaxation of the standards prescribed therein  for selection it was not permissible for the selection  board to  relax such standards. Those are not cases  where  relaxation  was  made  by  the  Government  in exercise of  any statutory rule and hence the ratio in those two decisions  is of no use to support the contention of the third respondent.      We have  no doubt that if government had thought it fit to afford  marginal relaxation  in the case of the appellant in terms  of Rule  7 in particular and Rule 14 in general by was of  implementation of  the policy evolved in recognising the services  rendered by  the police  personnel during  the frightful days,  it warrants  no interference  from judicial

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side. High  Court should not have upset the appointment made in marginal  relaxation of the physical standards prescribed in the case of this appellant.      We, therefore,  allow this  appeal and  set  aside  the judgment under challenge. No costs.