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TMI Blog2016 (11) TMI 1737X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the recruitment to the said post in the year 2008, On the contrary, he applied for the post pursuant to the advertisement published in the year 2009. In the impugned judgment the High Court has failed to consider the aforesaid analysis of its earlier judgment in Sachin Gupta's case. Appeal allowed. - Civil Appeal No. 10824 of 2016 (Arising out of Special Leave Petition (C) No. 28948/2016) - - - Dated:- 11-11-2016 - A.K. SIKRI AND R. BANUMATHI, JJ. For the Appellant : Chander Uday Singh, Ajit Kumar Sinha, Sr. Advs., Chirag M. Shroff, Rishi Kumar Singh Gautam, Vaibhav Choudhary, Neha Sangwan, R.K. Rathore, B.K. Prasad and D.S. Mehra, Advs. For the Respondent : Ashwani Bhardwaj and Amit Kumar, Advs. JUDGMENT 1. Heard learned Counsel appearing for the parties. 2. Leave granted. 3. The Delhi Subordinate Services Selection Board (hereinafter referred to as the 'Appellant Board') seeks to impugned the legality of the judgment and order dated 20.07.2016 passed by the High Court of Delhi in Writ Petition No. 3104 of 2016 whereby the High Court has affirmed the order of the Central Administrative Tribunal (CAT) which directed the Appellant Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the CAT as well as the High Court directed the Appellant Board to give age relaxation to the Respondent. The Appellant Board, being aggrieved by the impugned order dated 20.07.2016 passed by the High Court, is before us in this appeal. 7. If one goes strictly by the eligibility conditions stipulated in the advertisement or the Rules for recruitment to the post of Teacher (Primary), it cannot be disputed that the upper age limit for consideration to appointment to the aforesaid post is 27 years. It means that any person who has attained the age of 27 years renders himself/herself ineligible to apply for the said post. Notwithstanding the same, benefit of age relaxation was given to the Respondent herein relying upon the judgment of Delhi High Court in Sachin Gupta's case. Therefore, the first question for consideration is as to whether that judgment can be made applicable in the case of the Respondent as well. 8. A copy of the said judgment dated 28.08.2008 passed in Sachin Gupta's case was produced before us and we have gone through it. On going through this judgment, one finds that, in that case, challenge was made to the Notification dated 13.07.2007, vide which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er proviso to Article 309 are subject to any law made by the Parliament and the power includes Rules regulating the recruitment and the conditions of service or post. They are statutory and legislative in character. The statutory Rules thus made are subject to the law that may be made by the Parliament...... (Emphasis supplied) 46. It is further settled law that the courts must approach subordinate legislative instruments with considerable amount of caution. Presumption of constitutionality and reasonableness ordinarily attached to legislative enactment, applies to statutory Rules also. In P.V. Mani and Ors. v. Union of India reported in AIR 1986 Kerala 86 a Full Bench of Kerala High Court observed as under: .... It is therefore needless to add that the Courts shall approach subordinate legislative instruments with considerable amount of caution and examination for absence of competence or reasonableness or fairness and other invalidating circumstances with almost the same standards as legislative enactments are dealt with by courts. The presumption of constitutionality, competence and reasonableness ordinarily attaches to such instruments just as much as to legislative en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Union of India (SCR at p. 243) this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned Under Article 14 on the ground that it is unreasonable; unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary . Drawing a comparison between the law in England in India, the Court further observed that in England the judges would say, Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires . In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it would not be said to be in conformity with the statute or that it offends Article 14 of the Constitution. 48. Further, as the Rules are legislative in character they cannot be challenged on the grounds of malafides. In Capt. B.D. Gupta v. State of U.P. reported in 1991 Supp(1) SCC 1 para 1 of the Supreme Court held: 17....If the Rules were framed for making regular appointments in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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