1. Recruitment to judicial service — Age bar under recruitment rules — Government order relaxing age limit — Challenge to eligibility. (Para 1 )
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1998 Supreme(SC) 59
SUPREME COURT OF INDIA
S.P.Bharucha : V.N.Khare
Chairman, Public Service Commission, Jandk
Versus
Sudarshan Singh Jamwal
Case No. : 2819 of 1985
Date of Decision : 1/14/98
Important Points
Section 21 of the General Clauses Act allows the amendment of rules only if exercised in the same manner and subject to the same sanctions as the original rule-making power; it cannot be used as an "inherent power" to bypass statutory recruitment age limits.
Subject
Service Law - Recruitment and Age Relaxation
Act Referred
Headnote
(A) Civil Service (Judicial Recruitment) Rules - Rule 7 - General Clauses Act - Section 21 - Recruitment to civil service - Age bar - Relaxation of upper age limit - Government issued an order relaxing the age bar for a candidate who was otherwise age-barred - Rule providing for such relaxation had been deleted by amendment - High Court held that government possesses inherent powers to relax age bar, relying on Section 21 of the General Clauses Act - Held, Section 21 of the General Clauses Act provides that where power to issue notifications, orders, rules, or bye-laws is conferred, such power includes power to add to, amend, vary or rescind them, provided it is exercisable in the like manner and subject to the like sanction and conditions - If the order is not issued in exercise of the power to make the rules and not in the like manner and subject to the like sanction, Section 21 is not applicable - Government cannot relax statutory rules through "inherent powers" in the absence of a specific enabling provision. (Paras 2, 3)
Facts of the case:
A candidate sought recruitment to a civil service but was barred by the upper age limit prescribed in the recruitment rules. The government issued an order relaxing the age bar. However, the specific rule that previously allowed the governor to exempt certain persons from the age limit had been deleted by an amendment. The High Court allowed a writ petition on the grounds that the government had inherent powers to relax the age bar under the General Clauses Act.
Findings of Court:
The exemption order did not entitle the candidate to appear at the recruitment examination as the government did not exercise the power in the manner and subject to the sanctions required for making the rules.
Issues: Whether the government can relax a statutory age limit for recruitment by exercising "inherent powers" or under Section 21 of the General Clauses Act after the specific relaxation provision in the rules has been deleted.
Ratio Decidendi: Section 21 of the General Clauses Act only applies when the power to amend or rescind is exercised in the like manner and subject to the like sanction and conditions as the original power to make the rules. An order issued under "inherent powers" without following the statutory rule-making process cannot override the prescribed age limit.
Result: Appeal allowed.
Facts of the case:
A candidate sought recruitment to a civil service but was barred by the upper age limit prescribed in the recruitment rules. The government issued an order relaxing the age bar. However, the specific rule that previously allowed the governor to exempt certain persons from the age limit had been deleted by an amendment. The High Court allowed a writ petition on the grounds that the government had inherent powers to relax the age bar under the General Clauses Act.
Findings of Court:
The exemption order did not entitle the candidate to appear at the recruitment examination as the government did not exercise the power in the manner and subject to the sanctions required for making the rules.
Issues: Whether the government can relax a statutory age limit for recruitment by exercising "inherent powers" or under Section 21 of the General Clauses Act after the specific relaxation provision in the rules has been deleted.
Ratio Decidendi: Section 21 of the General Clauses Act only applies when the power to amend or rescind is exercised in the like manner and subject to the like sanction and conditions as the original power to make the rules. An order issued under "inherent powers" without following the statutory rule-making process cannot override the prescribed age limit.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether the State government possesses inherent power to relax the upper age limit for recruitment despite the deletion of specific relaxation rules. (Para 1 , 2 )
3. The government's power to relax age limits cannot be derived from Section 21 of the General Clauses Act if not exercised under the rule-making power. (Para 3 )
4. Power to amend or vary rules under Section 21 of the General Clauses Act requires the exercise of power in the same manner as the original rules. (Para 3 )
5. Appeal allowed — High Court order set aside — Writ petition dismissed. (Para 4 )
6. Can the government use inherent powers to relax age limits set by recruitment rules?
No. The court held that the government cannot rely on inherent powers or Section 21 of the General Clauses Act to relax age bars unless the order is issued in the same manner and subject to the same sanctions as the rules themselves. (Para 3 )
7. What is the scope of Section 21 of the General Clauses Act regarding the amendment of rules?
Section 21 allows the power to add to, amend, vary, or rescind notifications, orders, or rules, provided the power is exercised in the like manner and subject to the like sanction and conditions as the original issuance. (Para 3 )
8. Does the deletion of a specific relaxation rule preclude the government from granting age exemptions via inherent power?
Yes. Once the specific rule allowing relaxation is deleted, the government cannot bypass the rule-making process by claiming inherent powers under the General Clauses Act if the procedure for the original rules is not followed. (Para 2 , 3 )
(1) RULE 7 of the Jammu and Kashmir Civil Service (Judicial Recruitment) Rules, 1967, provided that no person should be recruited to that service who was more than 35 years of age on the first date of January preceding the year the examination for recruitment was conducted by the appellant-commission. The first respondent was age-barred, but sought to rely upon an order dated 14/2/1985 in the following words:
"SANCTION is accorded to the relaxation of upper age bar by two years, eight months and twenty-three days in favour of Shri Sudarshan Singh Jamwal, Librarian, High court of Jammu and Kashmir. By order of the government of Jammu and Kashmir. sd/- (Secretary to Govt. Law Department)"
Meeting with resistance from the appellant, the first respondent moved the High court of Jammu and Kashmir in a writ petition. The writ petition was allowed on the basis that the State government was competent to relax the age bar.
(2) THE said Rules had earlier provided for such relaxation in Rule 9-A, which read thus:
"9-A. Notwithstanding anything contained in Rules 7 and 9 of these Rules, the governor may, on the recommendation of the court, exempt any person who holds any post under the government by virtue of which he has kept himself in touch with and gained sufficient experience in the knowledge and application of law, from the operation of Rules 7 and 9."
The appellant moved the High court in review pointing out that Rule 9-A had been deleted from the said Rules by reason of an amendment made in August 1974. The High court rejected the review petition holding, "Even if the provisions of Rule 9-A would have been placed before us, in our opinion it would-not have any effect on the judgment as the order on the basis of which the age bar was relaxed is passed by the government in exercise of its inherent powers, which always exists with the government for which we can safely place reliance on the authority of their Lordships of the Supreme court reported in Sampat Prakash v. State of J&K paras II and 12."
(3) THE decision in the case of Sampat Prakash, speaks of the application of Section 21 of the General Clauses Act. Section 21 of the General Clauses Act says that where by any central Act or Regulation a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. The order, upon which the first respondent relied, was, according to the High court itself, issued in the exercise of the State governments inherent power, meaning, apparently, the power derived from Section 21 of the General Clauses Act. The order was not issued in exercise of the power to make the said Rules and power was not exercised in the like manner and subject to the like sanction and conditions which operated for the making of the said Rules. Reliance upon the judgment in the case of Sampat Prakash was, therefore, misplaced as also reliance upon Section 21 of the General Clauses Act. The exemption order did not, therefore, entitle the first respondent to appear at the recruitment examination.
(4) THE appeal is allowed. The order under appeal is set aside and the writ petition filed by the first respondent is dismissed. No order as to costs.
