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CASE NO.: Appeal (civil)  5953 of 2007

PETITIONER: Union of India & Ors.

RESPONDENT: Shri Ramesh Singh Rajput

DATE OF JUDGMENT: 14/12/2007

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No.830 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.    Challenge in this appeal is to the order passed by a  Division Bench of the Madhya Pradesh High Court, dismissing  the writ petition filed by the appellants.  

3.      Factual background facts in a nutshell is as follows:        The appellant No.2 herein invited applications for  several posts including the post of Cook by Employment/  Recruitment Notice published in the Employment News  dated 19-25th October, 2002. The upper age limit in regard  to unreserved category candidate was mentioned as 25 yrs.  Respondent furnished his date of birth as 17.3.1978 and on  that basis he was selected. The School Certificate and other  records showed the date of birth as 17.3 1977. Respondent  claimed that he did not suppress any facts and he disclosed  all the material facts in regard to his date of birth and had  also filed an affidavit stating that his date of birth was  17.3.1978 and he had sought for correction of date of birth  in the School Records. However, as he was found to be over  25 years, with reference to the date of birth in the School  Records, though selected, he was not appointed.

   Feeling aggrieved by his non-appointment, though  selected, the Respondent herein filed O.A. No.322/2003  before the Central Administrative Tribunal, Jabalpur Bench  (in short \021CAT\022)  seeking a direction to the appellants herein  to appoint him as Cook. One of the grounds urged by him  by amending the applications was that the Central Civil  Services and Civil Posts (Upper Age Limits for Direct  Recruitment) Rules, 1998 (’Rules\022 for short) which came into  force on 1.4.1999 had increased the upper age limit for  recruitment by the method of \023Direct Open Competitive  Examination" to the Central Civil Services and Civil Posts  specified in the relevant Service/Recruitment Rules, by two  years. He contended that he was entitled to the benefit of  said increase and if two years was added, he would fulfill  the age recruitment even if the date of birth is taken as  17.3.1977.

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4.      CAT allowed the application holding that the Rules  applied to the post for Cook for which the respondent had  applied and the applicant was entitled to relaxation by two  years under the said rules and if such age relaxation is  accorded, his selection would be valid.       

5.      Appellant questioned the correctness of the CAT\022s order  by filing a writ petition which came to be dismissed by the  High Court of the impugned order.

6.      Appellants\022s  stand before the High Court was that the  said rules applied only to recruitment through direct  competitive examination conducted by the Union Public  Service Commission (in short \021UPSC\022) and the Staff Selection  Commission (in short \021SCC\022).  The recruitment in Indian Air  Force is not through Central Agency but by a Board  constituted by the Commanding Officer of the Station/Units  and, therefore, the Rules did not apply.         

7.      The High Court found that the recruitment was by direct  recruitment though it was not by the UPSC/SCC but authority  under the Central Government.  Therefore, the CAT rightly  held that the Rules were applicable.  The High Court found no  substance in the plea about the false declaration of age and  non-applicability of the Rules.    

8.      In support of the appeal, learned counsel for the  appellant submitted that the admitted position is that  according to his own affidavit, he has mentioned his date of  birth to be 17.3.1978 and in the application form on the basis  of the matriculation certificate it was mentioned as 17.3.1977.   CAT accepted that the correction of date of birth could have  been done only by moving an appropriate application before  the concerned authorities or the Education board.  Having so  observed, the CAT held that this case is of relaxation.

9.      It was contended that since the respondent himself did  not claim any relaxation at any stage, and gave false  declaration about his age, therefore, the view of the CAT and  the High Court is unsustainable.          10.     Learned counsel for the respondent on the other hand  submitted that there was no wrong declaration. In fact, in the  form and the affidavit both the dates were indicated.

11.     From the record it appears that the authority did not  issue any appointment order to the respondent on the ground  that he gave a false date of birth.  Stand of the respondent  before CAT was that it appears from the application filed  before it is that the date of birth of the respondent is  17.3.1978. In an annexure he claimed it to be 17.3.1978. The  appellants knew about this date and, therefore, held him to be  qualified candidate and, therefore, he was interviewed by the  Selection Committee and found suitable.  Having proceeded in  that manner it was not open to the appellants to deny  appointment.   

12.     It appears that the CAT itself accepted that the question  of correcting date of birth was not within the domain of the  appellants and it was open to the respondent to move  appropriate authority in that regard.  Having said so, CAT held  that there was scope for relaxation.  There were no  pleadings  in that regard.   As a matter of fact, there is no reference even  to the relaxation aspect in the application before CAT.  For the

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first time such stand was taken during the hearing before the  CAT. The High Court unfortunately did not consider this  aspect.

13.     Therefore, the orders of the CAT and the High Court are  unsustainable and are quashed.  It will be open to the  respondent to move to the authority for relaxation if he is so  advised.  It shall be open to the authorities to pass appropriate  orders in accordance with law.  We do not express any opinion  about the acceptability or otherwise if prayer for relaxation is  made.    

14.     The appeal is allowed to the aforesaid extent without any  order as to costs.