UNION OF INDIA & ORS.versusSHRI RAMESH SINGH RAJPUT

                   UNION OF INDIA & ORS.                             A
                             v.
                 SHRI RAMESH SINGH RAJPUT

                      DECEMBER 14, 2007

       [DR. ARIJIT PASAYAT AND AFT AB ALAM, JJ.]                     B


       Service Law-Appointment-Application for recruitment-Date
 ofbirth disclosed by candidate varyingfrom the date ofbirth mentioned
 in his school records-Candidate seeking the authority, correction in c
 the date of birth in school records-Candidate selected, but denied
 appointment finding him averaged on the basis of date of birth in
 school records-Order challenged-By subsequent Rules two years
 relaxation given in recruitment-At the time of arguments benefit of
 Rules sought by candidate-Tribunal directing appointment on the D
 basis ofRules-High Court upholding order oftribunal-On appeal,
 held: Authorities having selected the candidate despite having
knowledge of date of birth as per school records, could not deny
appointment-However, since the benefit ofthe subsequent Rules were
not pleaded before the authority, order of courts below quashed- E
Liberty given to candidate to move the authority seeking relaxation
as per Rules-Central Civil Services and Civil Posts (Upper Age Limits
for Direct Recruitment) Rules, 1998.

      Pursuant to a recruitment notice, respondent was selected for
the post of'cook'. His date of birth in the school records was found F
to be 17.3.1977. Respondent filed an affidavit stating that his date
of birth was 17.3.1978 and also sought for correction of date of birth
in school records. Respondent was not appointed, as he was found
to be over-aged with reference to the date of birth in school
certificates.                                                          G
    Respondent filed application before Central Administrative
Tribunal seeking direction for his appointment. At the time of
arguments he pleaded that he was entitled to relaxation of2 years
                                947                                  H
    948 SUPREME COURT REPORTS                 [2007] 13 (Add!.) S.C.R.


A in upper age limit in view of Central Civil Services and Civil Posts
  (Upper Age Limit for Direct Recruitment) Rules, 1998 whereby the
  upper age limit in respect of direct recruitment was increased by two
  years. Tribunal though held that correction of age was not within the
  domain of the appellants, but allowed the application on the ground
B that he was entitled to relaxation in age in view of the Rules. High
  Court, in writ petition upheld the order of Tribunal. Hence the present
  appeal.

        Partly allowing the appeal, the Court

c issueHELD:  1. From the record it appears that the authority did not
       any appointment order to the respondent on the ground that
  he gave a false date of birth. Stand of the respondent before Central
  Administrative Tribunal (CAT) was that the date of birth of the
  respondent is 17.3.1977. In an annexure he claimed it to be
D 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.
                                                    [Para 11) [951-B-C)

E      2. 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
F reference even to the relaxation aspect in the application before
  CAT. For the first time such stand was taken during the hearing before
  the CAT. The High Court did not consider this aspect. It is open to
  the respondent to move the authority for relaxation if he is so
  advised. It shall be open to the authorities to pass appropriate orders
G in accordance with law. [Paras 12and13) [951-D-F]

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5953 of
    2007.
      From the final Judgment and Order dated 11.02.2005 of the High
H Court of Judicature of Madhya Pradesh at Jabalpur In W.P. (S) No.
          UNION OF INDIA v. SHRI RAMESH SINGH RAJPUT                      949
                           [PASAYAT,J.]
      12876 of2004.                                                             A
           R. Mohan, ASG., S. Wasim, A. Qadri, Jubair Ahma Khan, Charan
      Lal Sahu, B.K. Prasad and Anil Katiyar for the Appellant.
           Vivek K. Tankha, B.K. Satija, Ratna Kaul and Sidharth Gupta for
      the Respondent.                                                      B
           The Judgment of the Court was delivered by
           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 C
      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 D
      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 E
      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.
t .
      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. F
            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 'CAT') seeking a
      direction to the appellants herein to appoint him as Cook. One of the G
      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' for short) which came into force on 1.4.1999 had
      increased the upper age limit for recruitment by the method of"Direct
      Open Competitive Examination" to the Central Civil Services and Civil
                                                                                H
    950 SUPREME COURT REPORTS                    (2007] 13 (Addi.) S.C.R.


A 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.
       4. CAT allowed the application holding that the Rules applied to the
B 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's order by filing
c a writ petition which came to be dismissed by the High Court of the
    impugned order.
       6. Appellants's 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 'UPSC')
D and the Staff Selection Commission (in short 'SCC'). 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.
E         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.
F       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
G 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 ofrelaxation.
       9. lt was contended that since the respondent himself did not claim
H any relaxation at any stage, and gave false declaration about his age,
   UNIONOFINDIAv. SHRIRAMESHSINGHRAJPUT                                951
                 [PASAYAT,J.]
therefore, tlie view of the CAT and the High Court is unsustainable.          A
      10. Learned counsel for the respondent on the other hand submitted
that there was no wrong declaration. In fact, in the fonn and the affidavit
both the dates were indicated.
      11. From the record it appears that the authority did not issue any B
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 C
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 D
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 first time such stand was taken during the hearing before the CAT. E
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 ifhe is so advised. It shall be open to the ..F
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.                                                              G

K.K.T.                                             Appeal partly allowed.