Pitta Naveen Kumar and Others v Raja Narasaiah Zangiti and Others
Supreme Court of India

14 September 2006
Appeal (Civil) 4121 of 2006 (Arising Out of S.L.P. (Civil) No.6789 of 2006) With C.A. Nos. 4131, 4130 & 4132 of 2006 (Arising Out of S.L.P. (Civil) Nos.6516, 7016 & 8275 of 2006)
The Judgment was delivered by : HON'BLE JUSTICE S. B. SINHA
Leave granted in the S.L.Ps.
1.  The State of Andhra Pradesh notified 301 vacancies by a notification bearing No. 21 of 2003 dated 21.11.2003 in respect of the following six categories of Group 1 services:
(i) Deputy Collectors in A.P. Civil Service (Executive Branch)
(ii) Commercial Tax officers in A.P. Commercial Tax Service
(iii) Deputy Superintendent of Police (Category-2) in A.P. Police Service
(iv) Regional Transport Officers in the A.P. Transport Service
(v) Assistant Prohibition and Excise Superintendents in A.P. Excise Service
(vi) Mandal Parishad Development Officer in A.P. Panchayat Raj Rural Development Service.
2.  For filling up of the vacancies so notified, the Andhra Pradesh Public Service Commission (for short "the Commission") issued a notification on or about 21.11.2003 inviting applications from candidates eligible therefor. The salient features of the recruitment process are as under:
(i) Recruitment was to be made to vacancies notified only.
(ii) Recruitment was to be processed as per the notification and GOMs No. 570 dated 31.12.1997 and instructions issued by the State from time to time.
(iii) The candidates were to possess the essential qualifications specified therefor as on the date of notification.
(iv) The minimum and maximum age specified for the post were to be reckoned as on 1.7.2003.
(v) The applicants were to be subjected to a Screening Test (Objective Type) for admission in the Main (Written) Exam. The candidates who obtained the minimum qualifying marks in the written examination were to be called for interview in the ratio 1:2 with reference to the number of vacancies.
3.  Procedure for filling up of the vacancies was laid down in GOMs No. 570 dated 31.12.1997 in terms whereof the number of candidates to be admitted to the written examination was to be 50 times the total number of vacancies available at the material time. On or about 10.12.2003, 18 more vacancies were notified, totalling 319 vacancies. 1, 52, 000 candidates including the Appellants herein submitted their applications in response to the said notification. Yet again, 32 posts were declared vacant on or about 1.1.2004.
A Preliminary Examination was conducted by the Commission on 28.3.2004.
4.  Thereafter an Original Application was filed before the Andhra Pradesh Administrative Tribunal by some candidates being OA No. 1708 of 2004 inter alia for a declaration that notification of vacancies in nine categories of posts only instead and place of twenty categories in Group I services was illegal. By an interim order dated 16.4.2004, it was directed:
"Having regard to these facts and circumstances of the case, there shall be a direction to the respondents to compute and calculate the vacancies pertaining to various categories of posts under Group I services and notifying the same to the APPSC pending disposal of the OA."
5.  A notification was issued being GOMs No. 164 on 6.7.2004 fixing 1.7.1999, instead of 1.7.2003 as originally stipulated, as the relevant date for fixing the upper age limit for candidates eligible to appear at the examination.
6.  The Commission thereafter issued a supplemental notification being No. 6 of 2004 on 7.8.2004 inviting applications for filling up of 170 additional vacancies stipulating:
(i) The candidates who were eligible but failed to appear in response to notification No. 21 dated 13.11.2003 may apply in response to supplementary notification.
(ii) The candidates who had appeared in the screening test held on 28.3.2004 in response to notification No. 21 of 2003 should not apply again.
7.  A second preliminary test thereafter was held on 10.10.2004 for about 51, 768 candidates who had applied in response to the said supplemental examination. The Commission upon holding the said preliminary test released a list of 28, 865 candidates stating that the marks obtained by the last candidate admitted into the main examination was 66% which was arrived at in terms of the ratio of 1:2 stipulated in the rules of selection. The said list was prepared with reference to 524 notified vacancies as on 7.8.2004 which included 223 vacancies notified after the issue of the initial notification for 301 vacancies on 21.11.2003 and upon taking into account the results of both the preliminary tests held on 28.3.2004 and 10.10.2004. Questioning inter alia the said action on the part of the Commission, some candidates who had not been admitted into the Main Examination filed an original application before the Tribunal which was numbered as OA No. 26 of 2005 praying for the following directions to the Respondents:
(i) to compute the correct number of vacancies and notify the same before the main examination;
(ii) to declare that the petitioners therein are entitled to be called for the main examination after correctly computing the number of vacancies in the ratio of 1:50 .
8.  An interim order was passed therein by the Tribunal on 6.1.2005 reducing the cut-off marks for appearing in the main examination from 66% to 61% on the premise "so that some opportunity is given to some more candidates to appear for main examination as some more posts are there not notified have to be considered."
9.  An application for vacating the said interim order was filed by the candidates aggrieved thereby whereupon by an order dated 9.4.2005 it was directed:
"it would be just and proper to direct the APPSC not to declare the result of the candidates who have been permitted to appear for group 1 main examination in terms of the interim orders of this Tribunal, pending further orders in the OAs."
10.  The State of Andhra Pradesh, however, issued a Government Order bearing GOMs No. 200 dated 30th April, 2005 purported to be terms of the directions of the Andhra Pradesh Administration Tribunal, the relevant portion whereof reads as under:
"In the circumstances, after careful consideration Government direct the Andhra Pradesh Public Service Commission to reduce the qualifying marks from 66 to 61 to allow more candidates for the main examination for recruitment to Group I Services with reference to the Notification No. 21/2003 and Supplemental Notification No. 6/2004 in relaxation of the orders issued in the G.O. first read above."
11.  The legality of the said Government Order came to be questioned by some of the parties herein in OA Nos. 3960 of 2005 and 5548 of 2005. During pendency of the said original applications before the Tribunal, the Main Written Examination was conducted by the Commission in the month of May/June, 2005. Original Applications were dismissed by the Tribunal and consequently interim order dated 6.1.2005 stood vacated having regard to the decision of this Court in Union Public Service Commission v. Gaurav Dwivedi and Others  stating:
(i) The Tribunal had no jurisdiction to interfere with the percentage of marks fixed by the Commission as cut off marks for enabling the candidates to appear for main examination. Interim order dated 6.1.2005 and consequential GOMs No. 200 issued by the Government has the effect of interfering with the cut-off marks prescribed by the Commission which the Tribunal cannot do.
(ii) The interim order dated 6.1.2005 and GOMs has the effect of allowing 23, 000 candidates who were otherwise ineligible to appear in the examination thereby causing prejudice to the candidates who were initially selected.
12.  The Tribunal by reason of its order dated 30.1.2006 directed the Respondents to finalise the process of selection in accordance with GOMs No. 570 dated 30.12.1997 for 543 posts instead of 524 posts and complete the entire process of selection within three months.
13.  The State of Andhra Pradesh or the Commission did not question the correctness or otherwise of the said judgment. Respondent Nos. 1 to 3, however, filed a writ petition before the High Court. Some other writ petitions were also filed inter alia questioning GOMs No. 164 dated 6.7.2004 and GOMs No. 133 of 23.3.2005.
14.  The High Court by reason of its impugned judgment reversed the judgment and order of the Tribunal opining:
(i) There is nothing sacrosanct in GOMs No. 570 dated 30.12.1997 which stipulated the ratio of 1:50 between the number of vacancies and the number of candidates to be admitted to the main written examination;
(ii) Interim order dated 6.1.2005 of the Tribunal directing a cut off mark lower than the one arrived at in accordance with the ratio prescribed under GOMs No. 570 was fixed for the reason that if eventually more number of posts in Group 1 are to be filled up, fixing lower cut off mark would satisfy the requirement of the ratio prescribed under GOMs No. 570.
(iii) GOMs No. 200 was a result of decision of the government independent of the interim order. The tenor of language of the said GOMs is not conclusive.
(iv) GOMs No. 200 is merely a logical extension to the decision to issue second notification to fill up 223 posts.
(v) The contesting candidates cannot oppose issuance of GOMs No. 200 which enable more number of candidates to appear in the main examination as the number of candidates to be finally called depended on the accident/ chance of how many candidates could secure the cut off mark.
(vi) The judgment of this Court in Gopal Krushna Rath v. M.A.A. Baig (Dead) By LRs. And Others,  holding that calling more number of candidates for the interview than permitted under the rules may result in prejudice to those who are entitled to be called in accordance with rules must be read in the context of and in consonance with the judgment in Shankarsan Dash v. Union of India  wherein it was laid down that no candidate participating in the selection process has any indefeasible and legally enforceable right to be appointed.
These appeals question the said judgment.
15.  Mr. P.P. Rao, learned senior counsel appearing on behalf of the Appellants in Civil Appeal arising out of S.L.P (C) No. 6789 of 2006 submitted:
(i) GOMs No. 200 dated 30.4.2005 having been issued pursuant to the interim order passed by the Tribunal on 6.1.2005; having regard to the fact that the same stood vacated and in any event the original application having been dismissed by the Tribunal, no effect could have been given thereto.
(ii) The High Court committed a serious error in opining that the said GOMs No. 200 was issued pursuant to a conscious decision of the State independent of the said interim order.
(iii) The Tribunal having no jurisdiction to reduce the qualifying marks from 66% to 61% as a result whereof more candidates had appeared in the Main Examination for recruitment to Group 1 service in relaxation of GOMs No. 570 dated 31.12.1997, the entire selection process was vitiated in law.
(iv) Although, the Appellants did not have any right to be selected, they had acquired a legal right to be considered in terms of the extant rules.
(v) The impugned judgment of the High Court cannot be sustained as the Commission acted in violation thereof.
16.  Mr. L. Nageswara Rao, learned senior counsel appearing on behalf of Appellants in Civil Appeals arising out of S.L.P (C) Nos. 6516, 7016 and 8275 of 2006 supplemented the submissions of Mr. P.P. Rao urging that those candidates who were over-aged on the date of the initial notification could not have been made eligible by reason of a subsequent notification. The candidates, it was urged, who appeared at the preliminary examination and the main written examination had a legitimate expectation that the vacancies which existed on the date of the notification would be filled up in terms of the extant rules and in relation thereto no vacancy arising in future could have been taken into consideration.
17.  Mr. A.K. Ganguli, learned senior counsel appearing on behalf of the Commission, on the other hand, would draw our attention to the fact that some of the Appellants did not pass the preliminary examination. Although two preliminary examinations one, pursuant to the main notification and other pursuant to the supplementary notification, in view of the fact that the same provided for only one opportunity to all the candidates, viz., to appear at the main written examination and, thus, the same cannot be said to be arbitrary or unreasonable. The decision of the State to fill-up all the vacancies cannot be faulted with as the said steps were taken as one time measure. As the impugned GOMs were issued in terms of the proviso to Art. 309 of the Constitution of India, the validity of the impugned notifications cannot be questioned as thereby merely the age-bar has been relaxed.
18.  It is not in dispute that, at the material time, examination was to be conducted in terms of the instructions issued by the State of Andhra Pradesh as contained in GOMs No. 570 dated 31.12.1997. The advertisement was also issued by the Commission pursuant to or in furtherance of the said notification, as would appear from Cl. 2(a) of the notification No. 21. It was categorically stated:
"The recruitment will be made to the vacancies notified only. There shall be no waiting list as per G.O. Ms. No. 81 and Rule 6 of APPSC Rules. The available break-up of vacancies is given in Annexure I. However, the breakup is subject to variation and confirmation by the Unit Officer, till such time as decided by the Commission and in any case, no cognizance will be taken by the Commission of any vacancies arising or reported after the completion of the selection and recruitment process, or, the last date as decided by the Commission, as far as this Notification is concerned; and any such subsequently arising vacancies will be further dealt with as per G.O. & Rule cited above."
19.  Recruitment to the notified vacancies although was to be considered but the same was not sacrosanct as the Commission was given liberty to take into consideration the vacancies arising at a later date also. The jurisdiction of the Commission, however, was only restricted to the extent that it could not have taken cognizance of any vacancy arising or reported after the completion of the selection and recruitment process. What was to be considered as a subsequent vacancy, in terms of the said rules, thus, would be such vacancies which arose after completion of the selection and recruitment process or the last date as decided by the Commission.
20.  It is not in dispute that all the candidates who had applied for the said post were having the requisite educational qualifications. In terms of the said advertisement, the selection process was to comprise in three parts, viz.,
(i) a screening test for the purpose of admitting the candidates to the main written examination.
(ii) Holding of main examination for those who would become entitled to be admitted to main written examination and, thus, were to be subjected to the process of selection
(iii) the candidates who obtained minimum qualifying marks in the written examination, as may be fixed by the Commission at their discretion, were to be summoned for oral test in the ratio of 1:2 with reference to the number of vacancies duly following the special representation as laid down in General Rule 22 of Andhra Pradesh State and Subordinate Service Rules.
21.  GOMs No. 200 dated 30th April, 2005 was issued by the State. Although the High Court has opined that the said GOMs was issued upon an independent decision taken by the State of Andhra Pradesh in that behalf, the recitals contained therein does not say so. The notification specifically referred to the interim direction issued by the Tribunal which was treated to be a general direction to admit all the candidates who had appeared in the preliminary examination. It was in the aforementioned situation only the qualifying marks were reduced from 66% to 61% to allow more candidates for the main examination for recruitment to Group 1 service with reference to the notification No. 21 of 2003 and the supplementary notification No. 6 of 2004. The State of Andhra Pradesh, however, did not stop there. As has been noticed hereinbefore, subsequent vacancies were also notified.
22.  The State thereafter issued GOMs No. 164 dated 6.7.2004, having regard to the representations purported to have been received by it from the unemployed candidates to allow age concessions, considering that there had been long gap in issuing the notification, on taking a purported sympathetic view in the matter, stating :
"a) A supplementary notification will be issued for some more vacancies in addition to the vacancies already notified in various categories of posts under Group I Services, under Notification No. 21/2003 issued on 21-11-2003 by the A.P. Public Service Commission.
b) For the candidates who could not appear for recruitment to Group I Services with reference to Advt. No. 21/2003 issued on 21.11.2003 by the A.P. Public Service Commission, as they were over and above the 33 years of age, age concession will be allowed duly reckoning the age limits prescribed in the rules, with effect from 1.7.1999 for the Notification No. 21/2003, and also for supplementary Notification to be issued. This age concession is only a one time measure and will not apply for further recruitments.
The candidates who were within the age limits, according to rules before the present concession raising the upper age limit and who could not apply for the notification issued on 21.11.2003 are also eligible to apply for the posts to be notified in the supplementary notification.
c) The candidates for the main examination will be finalized by the Commission from the common list of candidates qualified both in the preliminary examination already held and the preliminary exam to be held as per the supplementary notification to be issued."
23.  Ad hoc rule was made by the Governor of Andhra Pradesh in exercise of the powers conferred by the proviso appended to Art. 309 of the Constitution of India which reads as under :
"Notwithstanding anything contained in the Andhra Pradesh State and Subordinate Rules or in the Special Rules for any State Services or the Ad- hoc rules, the maximum age limit prescribed in the relevant special Rules for appointment by direct recruitment shall be reckoned as on 1-7-1999 instead of 1-7-2003 in respect of direct recruitment to Group. I Services Recruitment 2003 notified by the Andhra Pradesh Public Service Commission vide their Advertisement No. 21/2003/Supplementary notification.
This adhoc rule will apply only for the notification No. 21/2003/Supplementary notification of A.P. Public Service Commission."
Yet again, GOMs No. 133 was issued on 23.3.2005, in terms whereof the State allowed the candidates who had fulfilled the educational and age qualification, as per enhanced age limits eligible for recruitment to Group 1 service stating:
"Notwithstanding anything contained in the A.P. State and Subordinate Service Rules or in the Special Rules for any State Services or the adhoc rules, all the eligible candidates who are within the age limits in terms of the Orders issued in G.O. 164, G.A. (Ser.A) Department, dated 6-7-2004 and also those candidates who fulfill the Educational qualification as on the dte of Supplemental Notification  and who did not apply earlier are eligible to apply."
24.  One of the contentions raised before us is as to whether the aforementioned three notifications are retrospective in nature. Submission of Mr. P.P. Rao is that they are only prospective. We, however, do not agree. GOMs No. 570 dated 31.12.1997 did not have any statutory flavour. The notifications in question were issued by the State in exercise of its jurisdiction under proviso to Art. 309 of the Constitution of India. In terms of the said provision, the State indisputably is entitled to issue a notification with retrospective effect. GOMs No. 200 indisputably affected those who had appeared at the examination as by reason thereof qualifying marks were reduced from 66% to 61%. Similarly, by reason of GOMs No. 164, the maximum age limit prescribed in the relevant special rules for appointment by direct recruitment was to be reckoned as on 1.7.1999 instead of 1.7.2003. Expressly, the adhoc rule made thereby was made applicable only in respect of the notification No. 21 of 2003 and the supplementary notification of the Commission. Similarly, in terms of GOMs No. 133 dated 23.3.2005 those candidates who were not eligible on the date of issuance of the first notification became entitled to avail the beneficient provision thereof as by reason thereof all those who had not applied earlier became eligible therefor.
25.  The advertisement issued by the Commission was subject to GOMs No. 570. Administrative instructions contained in GOMs No. 570 did not contain any statutory rules. Any rule made subsequently by the State will override the administrative instructions to the extent it was repugnant thereto. It is, however, one thing to say that, a retrospective effect was given to the said rules but it is another thing to say that by reason thereof accrued or vested right of a candidate has been taken away.
26.  We begin our discussions by taking into consideration what would be a vested right vis-'-vis an accrued right.
27.  In Kuldeep Singh v. Govt. of NCT of Delhi [2006 (6) SCALE 588], this Court observed:
"What would be an acquired or accrued right in the present situation is the question.
In Director of Public Works and Another v. HO PO Sang and Others [(1961) AC 901], the Privy Council considered the said question having regard to the repealing provisions of Landlord and Tenant Ordinance, 1947 as amended on 9th April, 1957. It was held that having regard to the repeal of Sections 3A to 3E, when applications remained pending, no accrued or vested right was derived stating:
"In summary, the application of the second appellant for a rebuilding certificate conferred no right on him which was preserved after the repeal of sections 3A-E, but merely conferred hope or expectation that the Governor in Council would exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to the Governor in Council. The repeal disentitled the first appellant from thereafter issuing any rebuilding certificate where the matter had been referred by petition to the Governor in Council but had not been determined by the Governor."
In Saurabh Chaudri (Dr.) v. Union of India , it is stated:
"A statute is applied prospectively only when thereby a vested or accrued right is taken away and not otherwise.  A judgment rendered by a superior court declaring the law may even affect the right of the parties retrospectively."
The legal position obtaining in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He in terms of Art. 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise. By reason of the amended notifications, no change in the qualification has been directed to be made. Only the area of consideration has been increased. Those who were not eligible due to age bar in 2003 became eligible if they were within the prescribed age limit as on 01.07.1999. By reason thereof only the field of choice was enlarged. We would briefly consider the purport and effect thereof.
Initially, there had been 301 vacancies. 223 vacancies were later on added. 1, 52, 000 applications were received pursuant to the first advertisement. About 51, 768 applications were filed after issuance of the impugned GOs. By reason of the subsequent GOs, however, those who had appeared in the first preliminary examination were debarred from appearing in the second examination. The reason therefor is not far to seek. The result of the first preliminary examination had not been announced. A combined result was announced both in respect of the first preliminary examination as also the second preliminary examination. Both the examinations were held to be a part of the same recruitment process. It may be that in relation thereto different question papers were set or different examiners examined them but it must be borne in mind that the said examinations were held only for the purpose of elimination of candidates. The result of the said examination was not to affect the ultimate selection process.
We may at this juncture examine some of the decisions whereupon reliance has been placed by the learned counsel.
In Umesh Chandra Shukla v. Union of India and Others , the candidates were admitted to the viva-voce test by the Selection Committee. It is at that stage names of certain candidates, whose names had not been included in the Select List, were included in the final list of the Selection Committee and the names of certain candidates who had been interviewed by the Selection Committee had been omitted therefrom This Court in the aforementioned fact situation opined:
"The area of competition which the 27 candidates who had been declared as candidates eligible to appear at the Viva Voce examination before such moderation had to face became enlarged as they had to compete also against those who had not been so qualified according to the Rules. The candidates who appear at the examination under the Delhi Judicial Service Rules acquire a right immediately after their names are included in the list prepared under Rule 16 of the Rules which limits the scope of competition and that right cannot be defeated by enlarging the said list by inclusion of certain other candidates who were otherwise ineligible, by adding extra marks by way of moderation. In a competitive examination of this nature the aggregate of the marks obtained in the written papers and at the Viva Voce test should be the basis for selection"
This Court found a blatant violation of Rule 16 of the Delhi Judicial Service Rules, 1970 which had limited the scope of competition. In the instant case, the scope of the competition has not been limited by enlarging the field of consideration.
In N.T. Devin Katti and Others v. Karnataka Public Service Commission and Others , this Court was concerned with a situation where the advertisement expressly stated that selection would be made in accordance with the existing rules or government orders. In that case, it had categorically been stated that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection. Once, however, he is found to be eligible and he is otherwise qualified in accordance with the relevant rules, he acquires a vested right of being considered for selection in accordance with the rules as they existed.
With a view to understand the implication of the ratio laid down in the said case, we may notice the factual matrix obtaining therein. The Appellants therein were in service of the State Government. They had applied for selection pursuant to the said advertisement. Written examination and viva-voce test had been held. The list of successful candidates was finalized. It was also notified in Karnataka Gazette. An additional list of successful candidates had also been finalized. However, the said list was not approved by the State on the ground that its reservation policy has not been made in accordance with the directions and procedures issued subsequently, i.e., on 9th July, 1975 whereas the advertisement was issued on 23rd May, 1975. The matter relating to reservation was provided under the statutory rules.
The direction of the State to issue a fresh list on the Commission, therefore, came to be questioned. It was in the aforementioned situation, the law was laid down to the effect that the Appellants therein acquired some right for being considered for selection in view of the rules as they existed on the date of advertisement. However, we may notice that no law in absolute terms was laid down therefor. This Court categorically held:
"If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders"
In that case it was held that the Government Order dated 9th July, 1975 made the Government's intention clear that the revised directions which were contained therein would not apply to the selections in respect of which advertisement had already been issued and, therefore, the mode of selection as contained in Annexure 2 of the said Order was not applicable to the selection for filling 50 posts of Tehsildars pending before the Commission. A list, thus, validly prepared, could not have been directed to be changed because of a policy adopted by the State which was not applicable.
In Shankarsan Dash (supra), this Court stated the law in the following terms:
"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab."
What is, therefore, required to be seen is as to whether the action of the State is arbitrary.
Strong reliance has been placed by Mr. P.P. Rao on Hoshiar Singh v. State of Haryana and Others  wherein it was observed:
"The appointment on the additional posts on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same"
Selection in that case was for police service. Selection had been made in excess of requisition in violation of Rule 12.6 of the Punjab Police Rules, 1934. Standard of physical fitness was relaxed by the Selection Committee which power in terms of the advertisement it did not possess. There was nothing on record to show that the Director General of Police had sent any further requisition apart from the 8 posts for which the notification was issued and it was in that situation this Court opined that the Board on its own could not recommend names of 19 persons for the selection and recommendation of larger number of persons than the posts for which requisition was sent.
In Gopal Krushna Rath (supra), the question which arose for consideration was in regard to the qualification of the Appellant for being appointed to the post of Professor at the relevant time. On fact it was held that the Appellant did possess the requisite qualification which was in accordance with the rules / guidelines then in force. He had also obtained higher marks than the original Respondent at the selection. It was in the aforementioned situation, this Court held that the subsequent change in the requirements regarding qualification by the University Grant Commission would not affect the process of selection which had already commenced. In this case, however, the private Respondents concerned cannot be said to have no qualification on the date of advertisement.
Strong reliance has also been placed by Mr. P.P. Rao on Maharashtra State Road Transport Corpn. and Others v. Rajendra Bhimrao Mandve and Others. In that case, the rule of game said to be involved was in terms of circular issued by the State. No statutory rule or requisition was governing the field. A question arose as to which circular would apply. The contention of the Respondent was that the circular dated 4.4.1995 would apply providing for assignment of 87=% marks for written/ trade test and 12=% for the oral test (personal interview) which was accepted having regard to the fact that the driving test had been conducted on 27.11.1995 and, therefore, the circular letter which was issued on 24.6.1996 providing for a different standards was held to be not applicable, as on fact it was found that the other circulars issued have no application in respect of the driving tests held for appointment of the drivers. In the aforementioned fact situation, it was opined:
"Therefore, the High Court cannot be said to be correct in holding that the circular order dated 24- 6-1996 is illegal or arbitrary or against the orders of the State Government or the resolution of the Board of the Transport Corporation. Instead, it would have been well open to the High Court to have declared that the criteria sought to be fixed by the circular dated 24-6-1996 as the sole determinative of the merit or grade of a candidate for selection long after the last date fixed for receipt of application and in the middle of the course of selection process  cannot be applied to the selections under consideration and challenged before the High Court"
The said decision is, thus, also not an authority for the proposition that a subsequent circular would not per se be illegal or invalid. The court in all situations of this nature is required to consider only the applicability thereof.
In Union Public Service Commission v. Gaurav Dwivedi and Others , this Court held:
"We are unable to agree with this contention. Once it is considered, and in our opinion rightly so, that the number of vacancies to be filled could be reduced then the rules do not stipulate that the entire process of examination must be completed, including the conduct of the interview/viva voce, on the basis of the original number of vacancies which were notified. When before the declaration of the result of the main examination, the number of vacancies have been determined then it was only proper that candidates who are twice the number of revised vacancies are called for interview and not more. It is to be borne in mind that this is a competitive examination with the number of vacancies being 470 only, 940 candidates were required to be called for interview. By calling more than this number may result in prejudice to one or more of the candidates who were in the position of 940 or above. For example, it is possible that a candidate at Serial No. 941, who is not entitled to be called for interview, if he is permitted to be called for interview, may secure higher marks in the viva voce and oust those candidates who were higher in rank to him in the merit list. The High Court, in our opinion, was not right in permitting more than 940 candidates being called for interview/viva voce."
We may, however, notice that in Ashok Kumar Sharma and Another v. Chander Shekher and Another , advertisement was issued on 9.6.1982. The last date of submission of applications was 15th July, 1982. The Appellants and the Respondents by that date had submitted applications. The Appellants, however, had appeared for B.E. Civil Examination. Its results, however, was not published. Rule 37 of the J&K Public Service Commission Business Rules reads, thus:
"Applications of candidates who have appeared in the examination, the passing of which may make them eligible to appear in an interview for recruitment to a post to be made otherwise than by a competitive examination, but results whereof have not been declared up to the date of making of the application, may be entertained provisionally, but no such candidate shall be permitted to take the interview if he is declared as having failed in the examination or if the results are not available on the date the viva-voce test is held."
In terms of the said Rules, therefore, the Appellants were found to be eligible although he did not pass the examination on the date thereof. It was in that situation, the Appellants were held to be eligible.
In this case, we are dealing with a peculiar situation. The Government took a sympathetic view about the fate of those candidates who could not be accommodated earlier. Such consideration was made to broad-base the field of selection in view of the fact that since 1997 there had been no further recruitment. It is also not in dispute that the vacancies were notified from time to time as they were brought to the notice of the concerned department by the other departments.
The authority of the State to frame rules is not in question. The purport and object for which the said notifications were issued also cannot be said to be wholly arbitrary so as to attract the wrath of Art. 14 of the Constitution of India. The Appellants herein no doubt had a right to be considered but their right to be considered along with other candidates had not been taken away. Both the groups appeared in the preliminary examination. Those who had succeeded in the preliminary examination were, however, allowed to sit in the main examination and the candidature of those had been taken into consideration for the purpose of viva-voce test who had passed the written examination.
The question, however, remains as to whether the State could reduce the cut-off marks. If the cut-off mark specified by the State is arbitrary, Art. 14 would be attracted. The Tribunal did not have any jurisdiction to pass an interim order directing reduction in the cut-off mark. The cut-off mark at 66% was fixed having regard to the ratio of the candidates eligible for sitting at the written examination at 1:50. An interim order as is well- known is issued for a limited purpose. By reason thereof, the Tribunal had no jurisdiction to grant a final relief.
Moreover, the Tribunal could not have directed the Commission to do something which was contrary to rules. An interim order is subject to variation or modification. An interim order would ordinarily not survive when the main matter is dismissed. The Commission also did not intend to abide by the said directions. It wanted the State to pass an appropriate order. It was, pursuant to or in furtherance of the said desire of the Commission as also the direction of the Tribunal as contained in its interim order dated 6.1.2005, GOMs 200 was issued. The said Government Order was, thus, not issued by the State of its own. There was no independent application of mind. The statutory requirements for passing an government order independent of the interim directions issued by the Tribunal were wholly absent.
In Gaurav Dwivedi (supra), this Court categorically held the possibility that a person who was otherwise entitled to be called for an interview may lose its chance if the others who were not eligible are called for interview.
The standard was fixed as 1:50. The Commission came to the conclusion, having regard to the results published on written examination, that 66% should be the cut-off mark. It need not have been 66%. If the candidature of more candidates was to be taken into consideration, the same would mean that the State shall give a go by to principle of selection fixed by it, viz., 1:50. If the submission of the Commission and consequently, the State is to be accepted that the ratio should be 1:50, the same could not have been reduced to 10:90. A violation of that rule would, in our opinion, be arbitrary.
In total 558 vacancies were notified. Thus, only 27, 900 candidates could have been called for main written examination on the basis of the norms fixed by the State itself. However, the actual number of candidates who passed the examination are said to have been 50, 726. Although, actually it is stated that 32, 056 candidates appeared. Thus, indisputably, a large number of candidates who had been allowed to appear at the examination were evidently permitted to do so in violation of norm of 1:50, as was specified by the State. The aforementioned rule could not have been relaxed. It did not have any rational basis. 66% cut-off mark was not fixed by the Commission. It was arrived at by the Commission in view of the marks secured by the respective candidates on applying the ratio of 1:50. Once a person falls beyond the said ratio, he was not qualified. He was not to be considered any further. The State and the Commission had themselves fixed three different stages of selection process which were required to be adhered to.
We may notice at this stage Suraj Parkash Gupta and Others v. State of J&K and Others , wherein it was held:
"The result of the discussion, therefore, is that the wholesale regularisation by order dated 2-1-1998 , by way of implied relaxation of the Recruitment Rule to the gazetted category is invalid. It is also bad as it has been done without following the quota rule and without consulting the Service Commission. Further, the power under Rule 5 of the J&K (CCA) Rules, 1956 to relax the Rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment."
Relaxation can be given only if there exists any provision therefor in the Rules. GOMs No. 200 dated 30th April, 2005, in our opinion, must fall having regard to the vacation of interim order by the Tribunal and consequent dismissal of the original application. It will bear repetition to state that, while issuing the same, the Government did not apply its own mind. Only those candidates who came within the purview of the rule existing theretobefore could have been subjected to further selection process.
For the foregoing reasons, we are of the opinion that while GOMs No. 164 and 133 are not invalid, GOMs No. 200 is. The Commission was, thus, statutorily enjoined to interview only such candidates who had passed the written examination in 1:50 ratio. Only upon shortlisting the said candidates, the interview can be held at the ratio of 1:2.
To the aforementioned extent, the Commission must undertake selection process afresh. We, however, make it clear that those who have not passed the written examination would not be entitled to be considered in terms of the aforementioned directions. The appeals are allowed to the aforementioned extent. No costs.
Appeals partly allowed.


Kendriya Vidyalaya Sangathan and Others v Sajal Kumar Roy and Others
Supreme Court of India

19 October 2006
Appeal (civil) 4569 of 2006 (Arising out of S.L.P. (C) No.3657 of 2005)
The Judgment was delivered by: S. B. Sinha, J.
1. Leave granted.
2. Appellant before us is a society registered under the Societies Registration Act. It runs a chain of schools known as Kendriya Vidyalayas all over the country. An advertisement was issued in respect of eight vacancies which arose in the cadre of Lower Division Clerk (LDC) in the Silchar region. Respondent applied for recruitment to the said post pursuant to or in furtherance of the said advertisement. Written and typing tests were held. As per Kendriya Vidyalaya Sangathan (Appointment, Promotion, Seniority) Rules, 1971 (for short, 'the Rules), the age limit prescribed therefor was 18-25 years as on 30.6.1994, which was, however, relaxable.
Respondents are said to be near relatives of the employees of the Kendriya Vidyalaya Sangathan Regional Office, Silchar. The candidates who were over-aged were also permitted to appear at the examination in contravention of the Rules. Certain irregularities were also committed in the matter of conducting typing test. Higher authorities of the school were moved for cancellation of the recruitment of the LDCs.
3. An Original Application was filed by Respondents before the Central Administrative Tribunal, Gauhati Bench, praying for a direction upon Appellants to relax the age of the candidates. By an order dated 15.3.2001, the Tribunal directed Appellants to do so. Aggrieved by and dissatisfied therewith, a writ petition was filed by Appellants before the Gauhati High Court. By reason of the impugned judgment, the High Court directed :
"In the facts and circumstances aforesaid, we hold that direction, as issued by the Tribunal, could not have been given for appointment of the private respondents, until and unless the Appointing Authority exercises the power of relaxation of age limit. In view of the above, we direct the Appointing Authority to consider the case of respondents herein, for relaxation of the age limit within a period of 3 (three) months from the placement of a certified copy of this order before the Appointing Authority, and on relaxation of the age limit, include their names in the select list and thereafter issue appointment orders to them, in accordance with law on the basis of the merit of the candidate."
4. It is not in dispute before us that Respondents were over-aged on the relevant date. The particulars of Respondents, who had filed applications pursuant to the said advertisement, are as under :
5. The short question which arises for consideration before us is : Whether, in terms of the extant Rules, age of the general candidates was relaxable?
6. Mr. S. Rajappa, learned counsel appearing on behalf of Appellants would submit that the High Court committed an error in directing consideration of relaxation of age bar in respect of Respondents. The learned counsel would further submit that the regional office committed illegalities in allowing Respondents to appear at the written and typing examination, although they were admittedly over-aged and, thus, were not eligible for appointment.
7. Mr. Amitesh Kumar, learned counsel appearing on behalf of the Respondents, on the other hand, would support the judgment.
8. The Tribunal, although, noticed that Respondents crossed the age bar, but opined that keeping in view the fact that the relaxation of age was specifically referred to in the advertisement, they were otherwise eligible therefor. The Tribunal in support of its finding referred to a purported letter dated 29.3.1995 issued by Assistant Commissioner, Administration, KVS to Assistant Commissioner, KVS Silchar, which is in the following terms:
"I am to invite a reference to your office letter No.F.2-16/94-KVS (SR) dated 15.03.1995 and to state that the process of interview/selection may kindly be completed as per the advertisement dated 28th May 3rd June 1994 and subsequent clarification thereon published in the Employment News dated 21-27 January 1995. After completion of the selection if any candidate, with overage selected by virtue of the concession at para 8(b) & (c) of the advertisement, case may be taken up for relaxation of upper age prior to issue of offer of appointment....."
9. In the aforementioned situation, it was held:
"The action of the respondents in not issuing appointment letters to the applicants appears to be arbitrary. The applicants on their merits qualified for appointment. The age relaxation is being allowed and can be relaxed by the organization. As irregularity in the selection process has not been established the applicants request for issue of appointment letters is justified. The respondents are directed to reconsider the applicants case for appointment. This process should be completed within a period of 3 months from the date of receipt copy of this order."
10. It is not in dispute that Appellants have framed rules for recruitment known as Education Code for Kendriya Vidyalayas. Art. 45 of the said Code provides for age limit in the following terms:
"45. Age Limits
The following upper age limits have been prescribed for recruitment to the posts :
The upper age limits are relaxable in the case of special categories as follows :
(i) Scheduled Caste/Tribe - 5 years
(ii)Retrenched Central Govt. Period of their employees including service in Civil/ defence personnel. Military Depart- ments increased by 3 years.
The appointing authority can, in his discretion, relax these age-limits in deserving cases on the recommendation of the Appointments Committee/ Selection Committee."
11. Respondents are not members of the Scheduled Caste or Scheduled Tribe. Age limit is prescribed for appointment to the general category of employees. The upper age limit for appointment to the post of LDC is 25 years. The advertisement also says so. the Rules, as noticed hereinbefore, are in two parts. The first part talks about the age limit. The second part provides for relaxation. Such relaxation can be granted for the purpose specified, i.e., in favour of those who answered the descriptions stated therein. Relaxation of age limit even in relation to Scheduled Castes and Scheduled Tribes candidates or the Retrenched Central Government employees, including the defence personnel, is, however, not automatic.
The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/Selection Committee. The requirements to comply with the Rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the Rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the Rules and within the four corners thereof. As Respondents do not come within the purview of the exception contained in Art. 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions.
12. In Food Corporation of India & Ors. vs. Bhanu Lodh & Ors. [(2005) 3 SCC 618 2005 Indlaw SC 165], this Court stated the law thus:
"....While the maximum age prescribed under the Recruitment Rules is 35/40 years for the posts concerned, departmental candidates in the age of 52-53 years were proposed to be appointed. Even assuming that there is a power of relaxation under the Regulations, we think that the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations. The power of relaxation is intended to be used in marginal cases where exceptionally qualified candidates are available. We do not think that they are intended as an "open sesame" for all and sundry. The wholesale go-by given to the Regulations, and the manner in which the recruitment process was being done, was very much reviewable as a policy directive, in exercise of the power of the Central Government u/s. 6(2) of the Act."
13. Yet again in Dr. Ami Lal Bhat vs. State of Rajasthan & Ors. [(1997) 6 SCC 614 1997 Indlaw SC 2125], the law is stated in the following terms:
"....In other words, what is contended is that if on the date when the vacancy occurred, the candidates were within the maximum age prescribed by reference to the cut-off date, then if the advertisement is delayed, their age should be considered with reference to the cut-off date of 1st January following the date of occurrence of vacancy. For example, if the vacancy has occurred on 1st of April of a given year, and the applicant would be within the maximum age on the 1st of January of the following year, then such a candidate will be considered as eligible even if the advertisement is issued not in April of that year but say February of the following year. All the candidates will get age relaxation of one year.
In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum of age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended."
14. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. In the facts and circumstances of the case, there shall be no order as to costs.
Appeal allowed.


Surjit Singh v State Of Punjab And Others
Supreme Court of India

31 January 1996
C.A. No. 2489 of 1996
The Judgment was delivered by: M. M. Punchhi, J.
Leave granted.
1.  Is the hypothetical claim of the appellant for medical reimbursement valid in the facts and circumstances of thiscase is the straight question which falls for determination in this appeal.
2.  The appellant, Surjit Singh (now retired) while postedas a Deputy Superintendent Police, Anandpur Sahib, Distt. Roper, Punjab, developed a heart-condition on 22-12- 1987 and that very day went on a short leave extending it uptill 10-1-1988, on medical grounds. It remains unclarified on the record of this case as to what steps the appellant took thereafter to meet his ailment. However, six months later he obtained leave from his superiors from 15-6-1988 to 8-9-1988 and went to England to visit his son. It is the case of the appellant that while in England, he fell ill due to his heart problem and as an emergency case, was admitted in Dudley Road, Hospital Brimingham. After diagnosis he was suggested treatment at a named alternate place. Thus to save himself the appellant, got himself admitted and operated upon in Humana Hospital, Wellington, London for aBye-Pass Surgery. He claims to have been hospitalised from 25-7-88 to 4-8-88. A sum of Rs.3 lacs allegedly was spent on his treatment at London, borne by his son.
3.  On return to India, the appellant on 6-11-1988 submitted a Bill for medical reimbursement claiming that very sum, in the office of the Senior Superintendent of Police, Ropar which was forwarded to the Director General of Police, Punjab, Chandigarh and the Home Department of the State of Punjab. Some correspondence took place between the appellant and the department. As per office requirements some more certificates were sent by the appellant in support of his case. Vide letter dated 21-1-93, the Department however expressed its inability to sanction the bill for medical reimbursement.
4. This led to the appellant moving the High Court of Punjab and Haryana at Chandigarh in writ jurisdiction. As required by the High Court, the State responded by filing its counter affidavit. At the time of hearing the Assistant Advocate General for the State of Punjab made a statement to the effect that the State was ready to pay to the appellent the expenses incurred for Bye- pass Surgery and Angiography on the rates prevalent in theAll India Institute of Medical Sciences, New Delhi (for short 'AIIMS'). Applying that yardstick, as suggested, a sum of Rs.30,000/- on account of Bye-Pass Surgery and a sum of Rs.10,000/- for Angiography was thus ordered by the High Court to be paid to the appellant within six weeks. The writ petition on 18-4-1995 was disposed of on such terms. The said sum, as claimed by the State stands paid to the appellant.
5.  The appellant challenging the orders of the High Court disposing of the writ petition in such manner now pitches before us his claim to payment on the basis of rates prevalent in the Escorts Heart Institute and Research Centre (for short Escorts'), reducing his high claim to the expenses incurred for medical treatment in London. There is an inkling to that effect in the appellant's rejoinder affidavit in the High Court but it appears that this aspect of the matter was not dilated upon. The claim for such adoption of rates is now made in reiteration.
6.  The parties counsel agree that there is a policy regarding reimbursement of medical expenses framed by the State on 25-1-1991, which has duly been circulated in all the wings/offices of the State. It's operative portion, so far relevant, is reproduced below :
"Subject : Re-imbursement of medical expenses - policy regarding Sir/Madam, In supersession of Punjab Gover nment letter No.7/7/85- 3HBV/13855 dated 27-5-1987, the resident of India is placed to lay down the following policy for reimbursement of medical expenses incurred on medical treatment taken abroad and in hospitals other than the hospitals of the Govt. of Punjab (Both outside and in the State of : Punjab):
(i) All categories of employees whether retired or serving of All India Service/State Govt. Judges of Punjab and Haryana High Court/M.L.As/Ex M.L. As will be governed by this policy.
(ii) The person who is in need of medical treatment outside India or in any hospital other than the Govt. of Punjab (both outside and in the State of Punjab) as the case may be may make an application for getting treatment in these hospitals directly to the Director Health and Family welfare 2 months advance, duly recommended by the C.M.O./Medical Supdt. indicating that the treatment for the disease mentioned is not available in the Hospital of the Govt. of Punjab. In case of emergency duly authenticated by C.M.O./Medical Supdt. the application can be made 15 days in advance.
(iii) Director, Health and Family Welfare, Punjab will place the application of the concerned employee before the Medical Board within 15 days on the receipt of application. In case of emergency, if immediate meeting of Medical Board, cannot be convened, such application may be circulated to all the members of the Medical Board and decision taken thereof.
(iv) The Medical Board shall consist of the following officers:
(i) Director, Health and Family Welfare, Punjab - Chairman
(ii) Director, Education, Punjab Research and Medical - Member
(iii) Specialist of the desired line of treatment from PG1 Chandigarh or AIIMS, New Delhi - Member
(iv) Senior most specialist from Medical Colleges, Patiala, Amritsar and Faridkot - Member
(v) Dy. Director/Asstt. Director, I/c of P.M.H. Branches office of the Director Health and Family Welfare - Member Secy"
(vi) xxxx
(vii) xxxx
(viii) xxxx
(ix) xxxx
(xi) xxxx
(xii) The Health Deptt. in
consultation with Director Research & Medical Education will prepare a list of diseases for which specialised treatment is not available in Punjab Govt. Hospitals and indicate the Institutions/Hospitals/Clinics of repute where necessary treatment is available. This list will, however, be subject to variation in future.
7.  On 8-10-1991, the above policy has further been explained in so far as the choice of the hospitals is concerned:
"Policy for reimbursement of medical expenses incurred on medical treatment taken abroad and in hospitals other than those of the Government of Punjab, both within and outside he State was laid down.
However, as per the 12th item of hese instructions, a list of those diseases for which specialised treatment was not available in the Government hospitals was to be prepared in addition to identifying medical institutions/hospitals/clinics of repute where such specialised treatment was available."
8.  The Government has now prepared a list of those diseases for which the specialised treatment is not available in Punjab Government hospitals but is available in certain identified private hospitals, both within and outside the State. It has, therefore, been decided to recognise these hospitals for the treatment of the disease mentioned against them in the enclosed list for Punjab Government employees/pensioners and their dependents. The terms and conditions contained in letter under reference will remain applicable, Government can, however, revise the list, in future.
9.  Therefore it has been decided to recognise those hospitals for the treatment of diseases mentioned against them in the enclosed list issued with the concurrence of the Finance Department dated 11-9-1991 which is as under: Open Heart Surgery: Escorts Heart Institute, New Delhi; Christian Medical Colloge, Ludhiana; Appollo Hospital, Madras.
10.  The purport of the above policy is that the Escorts stands duly recognised by the State for treatment of its employees for open heart surgery, apart from the other two institutions i.e. Christian Medical College, Ludhiana and Appollo Hospital, Madras. The Finance Deptt's concurrence signifies its willingness to entertainment reimbursement bills in variables depending on where treatment is received.
11.  There has been a factual dispute as to whether the appellant went to the Dudley Road Hospital, Brimingham as an emergency case and whether he was operated upon in Humana Hospital, Wellington, London in that condition. Except for the bare word of the appellant, no documentary evidence in support or such plea had been tendered by him before the High Court, or even before us to show that his was a case of emergency requiring instant operation and treatment. The State of Punjab on the other hand has countered before the High Court, as also here, that the case of the appellant was not that of an emergency but a planned visit to England to have himself medically treated under the care of his son, without submitting himself as per policy, for examination before the Medical Board. This plea of the appellant may have been required to be examined in thorough detail had he stuck to his original claim for medical expenses incurred in England.
12. Since he has now brought down his claim to the rates prevalent in the Escorts in place of that of AIIMS, further reference to emergency treatment etc. would not be necessary. It would hypothetically have to be assumed that the appellant was in India, had not subjected himself to Medical Board examination, and had gone on his own to the Escorts and got himself operated upon for Bye-Pass Surgery. The point to be considered is whether his claim is admissible under the policy keeping in view the string of judgments of the High Court in that regard, as well as on the factum that the Stats has already conceded re- imbursement to the appellant on hypothetical basis as if treated in AIIMS.
13.  The policy, providing recognition for treatment of open heart surgery in the Escorts, specifically came to be examined by a division bench of the Punjab and Haryana High Court at Chandigarh in C.W.P. No.13493 of 1992 titled as Sadhu R. Pall vs. State of Puniab throuqh Secretary Health and Family Welfare Punjab, Civil Secretariat. Chandigarh and others decided on 6-10-1993, wherein the claim of the then writ petitioner to medical reimbursement was accepted when in order to save his life he had got himself operated upon in the Escorts, and the plea of the State that he could be paid rates as prevalent in the AIIMS was rejected. Special Leave Petition No.22024 of 1995 against the said decision was dismissed by this Court on 2-2-1994, The other judgments of the High Court following the decision in Sadhu R. Pall's case are :
(1) C.W.P. No.18562 of 1992 decided on 10-5-95 titled K.L.Kohil vs. State of Punjab and others (DB) :
(2) C.W.P. No.260 ot 1995, decided on 30-5-1995 titled avi Mohan Duggai vs. State of Punjab and Others (DB);
(3) C.W.P. No.5669 of 1994 decided on 4-9-94 titled Prem Singh Gill vs. State of Punjab and Others 2006 Indlaw PNH 3997;
(4) 1995 (III) Punjab Law Reporter 529 titled Tarlok (Chander vs. The State of Punjab etc. (SB); and
(5) 1995 (III), Punjab Law Reporter 682 titled Mrs. Surya Pandit vs. State of Punjab and others (SB)
14.  All the aforementioned judgments or the High Court have a common factual basis, i.e. each recipient of the relief from the High Court had in fact been treated in the Escorts and had borne expenses. The other common factor is that the High Court believed each writ petitioner pleating emergency to go to Escorts in the given fact situation. But this factor by itself is not the core of the views of the High Court. Hypotheticallys the appellant says, he too may be considered to have been treated in the Escorts, more so, when he is being treated to have been operated upon in AIIMS without actually having been so and had a choice to go either to the AIIMS or Escorts or Christian Medical College, Ludhiana or Appollo Hospita, Madras. The appellant in these circumstances cannot be said to be far too wrong in choosing the Escorts amongst the three recognised hospitals for open heart surgery available in the North, the AIIMS being governmental and the other two being private hospitals. The division bench in Sadhu R. Pall's case observed as follows :
"The respondents appear to have patently used excuses in refusing full reimbursement, when the factum of treatment and the urgency for the same has been accepted by the respondents by reimbursing the petitioner the expenses incurred by him, which he would have incurred in the AIIMS New Delhi. We cannot loose sight of factual situation in the AIIMS New Delhi, i.e. with respect to the number of patients received there for heart problems. In such an urgency one cannot sit at home and think in a cool and calm atmosphere for getting medical treatment at a particular hospital or wait for admission in some Government medical institute. In such a situation, decision has to be taken forthwith by the person or his attendants if precious life has to be saved."
15.  We share the views afore-expressed. It is otherwise important to bear in mind that self preservation of one's life is the necessary concomitant of the right to life ensbrined in Art. 21 of the constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this Great Land conceived of such right and recognised it. Attention can usefully be drawn to versus 17 18, 20, and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine: --
16.  The appellant therefore had the right to take steps in self preservation, He did not have to stand in queue before the Medical Board the manning and assembling of which, bare- facedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternate hospital as per policy. When the State itself has brought the Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to the Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to the Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellantt the rates admissible as per Escorts.
17. The claim of the appellant having been found valid, the question posed at the outset 15 answered in the affirmative. Of course the sum of Rs.40,000/- already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court, we do not grant him any interest for the intervening period, even though prayed for. Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs.
Appeal allowed