Public Service Commission - Age Relaxation cannot be Construed on Cumulative Basis [JUDGMENT]

Service Law – Public Service Commission – Age Relaxation - In the absence of any indication in the rules / executive instructions, the provisions for age relaxation cannot be construed on cumulative basis in respect of applicants who are covered under more than one categories for which age relaxations may have been provided. Rather, such provisions will have to be construed on a noncumulative basis.

Service Law – Public Service Commission – Age Relaxation - If an applicant, for example belongs to the SC category for which age relaxation upto 5 years is provided and also belongs to exservicemen category for which the age relaxation upto 3 years is provided, then such applicant, in the absence of any indication in the rules / executive instructions, will be entitled to claim age relaxation upto 5 years or upto 3 years (on noncumulative basis) as per his/her choice but not age relaxation upto 5 + 3 = 8 years (on cumulative basis).

Service Law – Public Service Commission – Age Relaxation - The applicants who are covered under more than one categories for which age relaxations may have been provided, in the absence of any contrary indication in the rules / executive instructions, will have a choice to opt for benefits of age relaxation which suit their interests best, though on noncumulative basis as explained.

V.D. Arati Prabhakar Dubewar V/s. Ayurveda Seva Samiti Sanchalit D.M.M. Ayurved Mahavidyalaya Yavatmal, Through Its Principal and Others, 2011(2) Mh.L.J. (Dubewar) Held good Law

The Secretary, Maharashtra Public Service Commission V/s. Manish Ramchandra Patil and Another, (Writ Petition No. 1587 of 2015) decided on 12th June, 2015 (Patil) Overruled

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CORAM : A. S. OKA, M. S. SONAK & DR. SHALINI PHANSALKARJOSHI, JJ.

PRONOUNCED ON : 13th DECEMBER, 2018

WRIT PETITION NO.5858 OF 2015

Maharashtra Public Service Commission ...Petitioner vs. Sunil Santosh Pawar and Another ..Respondents

WITH

WRIT PETITION NO.4530 OF 2015

Maharashtra Public Service Commission ...Petitioner vs. Sanjay Haribhau Magar ...Respondent

Mr. S.R. Nargolkar, Advocate Amicus Curiae a/w. Mr. Ketan Joshi and Mr.Aumkar Joshi. Mr. Nitin Dalvi, for the Petitioners in W.P. No.5858 of 2015. Mr. Vikram Pai, for Respondent No. 1 in WP.No.5858 of 2015. Mr. Ashutosh Kulkarni a/w. Mr. Sarthak Diwan, for the Petitioner in W.P.No.4530 of 2015. Mr. Chandrakant Tryambak Chandratre, for Respondent in WP.No. 4530 of 2015. Mr. A.A. Kumbhakoni, Advocate General a/w. Mr. A.B. Vagyani, G.P., and Mr. Akshay “B” Panel, Mr. N.C. Walimbe, AGP, for Respondent No. 2 in WP.No. 4530 of 2015.

JUDGMENT

(Per M.S. Sonak, J.)

By order dated 18th June, 2018, the Hon'ble the Acting Chief Justice ordered the constitution of the Full Bench to resolve the conflicting views expressed by the two Hon'ble Division Benches of this Court in cases of V.D. Arati Prabhakar Dubewar V/s. Ayurveda Seva Samiti Sanchalit D.M.M. Ayurved Mahavidyalaya Yavatmal, Through Its Principal and Others, 2011(2) Mh.L.J. (Dubewar) and in The Secretary, Maharashtra Public Service Commission V/s. Manish Ramchandra Patil and Another, (Writ Petition No. 1587 of 2015) decided on 12th June, 2015 (Patil).

Accordingly we proceed to answer the reference.

MAIN ISSUE INVOLVED IN THE REFERENCE:

2. In “Dubewar” (supra), the Division Bench comprising Shri S.A. Bobde, J. (as his Lordship then was) and Shri A.B. Choudhari, J. was concerned with a Petitioner who had applied for selection to the post of Reader. The maximum age limit prescribed for selection was 35 years as on the last date for receipt of applications. The Petitioner Dubewar was 45 years 8 months and 2 days old as on the last date. However, she contended that she was entitled to cumulative age relaxation by 13 years. She relied on certain rules /executive instructions which provided 10 years age relaxation in favour of physically challenged applicants and 3 years age relaxation in favour of reserved category applicants. In the absence of any indication in the rules/ executive instructions as to whether age relaxation should be construed on cumulative basis as contended by Petitioner Dubewar, the Division Bench held that age relaxation will have to be construed on a non cumulative basis. Therefore, the Petitioner Dubewar was held entitled to age relaxation by maximum 10 years and not 13 years as contended by her.

3. The reasoning of the Division Bench in Dubewar (supra) is reflected in paragraph 7, which reads thus: 7. It is, thus, clear that the Central Council of Indian Medicines itself states that the provisions regarding reservation and relaxation will have to be made by the concerned Government and the Central Council has not provided with any regulation on that aspect i.e. obviously because the policy of reservation and relaxation is to be implemented by the respective State Government and not by the Central Councils or the Apex bodies. As already stated, the Government of Maharashtra, in so far as handicapped categories are concerned, clearly provided relaxation by 10 years i.e. up to 45 years as against earlier upper age limit of 35 years by taking the policy decision. In other words, the Government of Maharashtra has provided upper age limit of relaxation to the open category candidates by three years, reserved category candidates by five years and to the handicapped category candidates by ten years. The submission that relaxation to the open category candidates of three years that was granted by the Government of Maharashtra should in addition be read to the relaxation of ten years for handicapped category candidates would mean that the petitioner wants benefit of both relaxation for general category candidates and relaxation for disabled category candidates. We do not think such a hotchpotch proposed to be made by the petitioner can be allowed. The categories of the candidates are different and we do not see any discrimination in such matters when the categories are clearly distinct and separate. The decision in the case of Aurangabad Bench has no application for the simple reason that the petitioner/candidate in the category was not a handicapped category candidate. Consequently, we do not find any merit in the present writ petition. The same is, therefore, dismissed. Rule is discharged. No order as to costs.

(Emphasis supplied)

4. In Patil (supra), the Division Bench comprising Shri B.R. Gavai, J. and Smt. Indira K. Jain, J. was concerned with an applicant (Patil) who had applied for selection to a post for which the maximum age limit prescribed was 35 years as on the last date for receipt of applications. The applicant Patil was around 43 years old as on the last date. However, relying upon certain rules /executive instructions, Patil contended that he was entitled to age relaxation of 5 years since he was already in Government service and an additional 5 years since he belonged to the reserved category. The rules/ executive instructions did provide for such age relaxation. However, there was no indication in the rules/ executive instructions as to whether such age relaxation was to be construed cumulatively or non cumulatively. The Division Bench however upheld the view taken by M.A.T that the age relaxation be cumulatively construed.

5. The reasoning of the Division Bench in Patil (supra) is reflected in paragraph 4, which reads thus:

4. We find that the petition is wholly without merit. Insofar as the clause 4.1 is concerned, though the upper age limit provided for backward class candidates is 35 years, this is in view of the clause 4 of the Article 16 of the Constitution of India wherein the State is empowered to make special provision for the persons belonging to backward class. However, insofar as the relaxation which is provided in clause 4.3 is concerned, it is provided to a specific class of the employees who are already in Government service. As such all the employees who are in Government service, whether belonging to backward class or not, would be entitled to further relaxation of 5 years. Relaxation in clause 4.1 is by virtue of special provisions under clause 4 of Article 16 of the Constitution of India, whereas the relaxation granted under clause 4.3 is to a special class of the employees of the State Government. We find that the view taken by the learned Tribunal is wholly in accordance with the constitutional mandate and the law.” (Emphasis supplied)

6. The issue can perhaps be better illustrated by reference to the particular facts in the case of Maharashtra Public Service Commission vs. Sanjay Haribhau Magar (Writ Petition No. 4530 of 2015). In this case, the Respondent Magar, a Government servant belonging to O.B.C category applied to M.P.S.C for selection to the post of Administrative Officer. In terms of the advertisement / rules, the maximum age limit prescribed for consideration to such post was 35 years. However, there was relaxation upto 5 years for applicants already in Government service or belonging to other backward classes. The Maharashtra Administrative Tribunal (MAT) accepted Magar's contention that relaxation had to be construed on cumulative basis (i.e. 35+5+5=45) and declared Magar, who was over 40 years old as eligible. The M.P.S.C has questioned MAT's decision by contending that in the absence of any indication in the rules / executive instructions, age relaxation had to be construed on noncumulative basis (i.e. 35+5=40) and therefore Magar, who had crossed the age of 40 years, could not claim eligibility. As noted earlier, it is in this Petition that the conflict between Patil (supra) and Dubewar (supra) was noticed and the present reference proposed.

7. At the very outset, we deem it appropriate to clarify the following two aspects:

(i) Both in Dubewar (supra) as well as Patil (supra) the Division Benches were concerned with rules / executive instructions in which there was no indication as to whether age relaxations should be construed on cumulative or non cumulative basis. Therefore, in the present reference, we are restricting ourselves to the issue as to whether age relaxations should be construed on cumulative or non cumulative basis in the absence of any indication to this effect in the rules / executive instructions as applicable. This means that if the position is already governed by the rules / executive instructions in specific terms, then obviously the construction shall have to be on the basis indicated in such rules / executive instructions.

(ii) Secondly, we also clarify that in the present reference, we are not dealing with legality or validity of rules / executive instructions, where such rules / executive instructions have already indicated whether age relaxation should be construed on cumulative or non cumulative basis.

8. Therefore, the main issue involved in this reference is whether, in absence of any indication in the rules / executive instructions, provisions for age relaxation should be construed on cumulative or non cumulative basis in respect of applicants who are covered under more than one categories for which age relaxations may have been provided?

SUBMISSIONS ON BEHALF OF M.P.S.C.:

9. Mr. Nitin Dalvi and Mr. Ashutosh Kulkarni who appeared for Maharashtra Public Service Commission (M.P.S.C.) commended the Dubear (supra) principle of non – cumulative construction. They submit that age relaxations, though permissible, constitute deviation from the equality principle in Articles 14 and 16 of the Constitution. Therefore, provisions relating to such relaxations must receive strict construction. There can be no scope for implications. They point out that the State has declared age relaxations in respect of several categories including but not restricted to Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC), physically challenged, sportsmen, project affected persons, wards of Freedom Fighters, women, employees already in Government service etc.. If such age relaxations are to be construed on cumulative basis, then, it is possible that applicants who are covered in more than one category or say even two to three categories may claim eligibility for appointment even though they may be nearing the age of 50 years or even 55 years. Such an interpretation will seriously affect the efficiency of administration apart from rendering such relaxations excessive and unreasonable. They submit that such a interpretation might disable such applicants from completing the qualifying service necessary for receipt of retiral benefits.

10. Mr. Dalvi and Mr. Kulkarni submit that wherever the legislature or the executive intended cumulative construction, the rules/ executive instructions stated so, in specific terms. Therefore, where the rules/executive instructions are silent, the presumption to be drawn is that the legislature or the executive did not contemplate cumulative construction. They submit that since MPSC is the constitutional body enjoined to undertake the selection process, the construction placed on the rules by the MPSC should normally be preferred over the construction proposed by applicants or even by the State. They point out that even the State is required to consult MPSC in making of recruitment rules and their implementations. They submit that therefore, the interpretation proposed by MPSC must prevail.

11. Mr. Dalvi and Mr. Kulkarni point out that Dubewar (supra), was decided prior to Patil (supra). Therefore, the decision in Dubewar (supra) was binding on the Bench of Coordinate strength which decided Patil (supra). In any case, if the Bench which decided Patil (supra), for any reason felt impelled to disagree with the view in Dubewar (supra) then, they could have proposed a reference to the Full Bench. However, Patil (supra) was decided without noticing Dubewar (supra). To that extent, the view in Patil (supra) is per incuriam or sub silento. For all these reasons, the learned counsel for MPSC submit that the view in Dubewar (supra) may be preferred over Patil (supra).

SUBMISSIONS ON BEHALF OF RESPONDENTS:

12. Mr. Chandrakant Chandratre and Mr. Vikram Pai, learned counsel for the respondents (original applicants before the MAT), at the outset, submit that the MPSC lacks locus standi to question the rulings of MAT since, the MAT has extended age relaxations as notified by MPSC itself in its advertisement and executive instructions. The learned counsel submit that the challenge, if at all, could have been raised only by other applicants or appointees, if affected by award of relaxation on cumulative basis to the respondents they represent.

13. Mr. Chandratre and Mr. Pai point out that there is no conflict as such between Dubewar (supra) and Patil (supra) because Dubewar (supra) was concerned with age relaxations to physically challenged applicants belonging to the reserved category. In contrast, Patil (supra) was concerned with an applicant who was already in Government service and belonged to the SC category. They submit that in absence of any conflict, reference itself was not competent or in any case, not necessary.

14. Mr. Chandratre and Mr. Pai commend Patil (supra) principle because according to them Dubewar (supra) contains no reasons. They also submit that according to the rules of precedents, the later decision, i.e., Patil (supra) must prevail.

SUBMISSIONS MADE BY ADVOCATE GENERAL, STATE OF MAHARASHTRA :

15. Mr. A.A. Kumbhakoni, the learned Advocate General for the State of Maharashtra, supported neither the contentions raised on behalf of MPSC nor the contention raised by the private respondents in their entirety.

16. He submitted that in such matters it is necessary to trace the source of reservations, which would include relaxations and concessions. He submitted that reservations can be of two types, i.e., vertical reservations (in favour of SC, ST and OBC) which trace source to Article 16(4) of the Constitution and horizontal reservations (in favour of women, physically challenged, project affected persons, exservicemen etc.) which trace source to Article 16(1) of the Constitution. He submitted that the object or the purpose of the two types of reservations is different and distinct. Therefore, if an applicant falls under categories covered by both, vertical as well as horizontal reservations, then, provisions of age relaxations, in case of such an applicant must be construed on cumulative basis. By way of illustration, the learned Advocate General submitted that if an applicant belongs to SC category, a source traceable to Article 16(4) as well as to a physically challenged category, a source traceable to Article 16(1), then, such applicant will be entitled to construe age relaxation on cumulative basis. To this extent, the learned Advocate General disagreed with the contentions raised on behalf of MPSC.

17. The learned Advocate General however submitted that if an applicant falls under more than one categories for which horizontal reservations may have been provided, then, age relaxation, in case of such an applicant will have to be construed on noncumulative basis. By way of illustration, the learned Advocate General submitted that if an applicant belongs to physically challenged category, a source traceable to Article 16(1) as well as exserviceman category, a source again traceable to Article 16(1), then, such applicant will not be entitled to construe age relaxation on cumulative basis but only on non cumulative basis. To that extent, the learned Advocate General disagreed with the contentions raised on behalf of the respondents.

18. The learned Advocate General submitted that if the aforesaid interpretation is accepted as correct, then, there would arise no conflict in the views expressed in Dubewar (supra) and Patil (supra).

19. The learned Advocate General submitted that in matters of this nature what is fundamental is the time tested golden rule of equality before law and equal protection of law as guaranteed by Articles 14 and 16 of the Constitution. He submits that relaxations and concessions even on justifiable grounds are always by way of exceptions to such time tested golden rule of equality. Therefore, provisions relating to relaxations and concessions have to be construed strictly. He submits that except in cases where the reservations trace their source to two different constitutional provisions, i.e., Articles 16(1) and 16(4), there can be no question of any construction on cumulative basis. He submits that even the principle of beneficent construction will not apply to such a situation because there is always a presumption of constitutionality but there is no presumption that the State intended to create some exception without stating so in clear terms. The learned Advocate General submitted that the interpretation proposed by him will balance and harmonize the rights and interests of the applicants belonging to the reserved categories and the general categories.

SUBMISSIONS MADE BY AMICUS CURIAE:

20. Mr. Nargolkar, the learned Amicus Curiae commended the Patil (supra) principle over Dubewar (supra) principle. He submitted that though Patil (supra) was decided without noticing Dubewar (supra), now that the matter is before the Full Bench, Patil (supra) need not be stigmatized as per incuriam or sub silentio. Rather, it will be appropriate if the Full Bench decides which of the two views represents the correct position from the constitutional perspective.

21. Mr. Nargolkar submits that the broad term ‘reservations’ encompasses in its fold, relaxations and concessions, which, in any case, are aids to reservations. He submits that reservations envisaged under Article 16(4) of the Constitution are not in the nature of exceptions to the rule of equality enshrined in Article 16(1) of the Constitution but only an instance. He submits that reservations are necessary so that de facto and de jure equalities coincide and a level playing field is achieved. He submits that reservations including relaxations and concessions ensure that unequals are not treated equally thereby violating Articles 14 and 16 of the Constitution. Therefore, where applicants are covered under more than one categories of social disabilities or disadvantages, then, such applicants, must be granted the benefits of age relaxations on cumulative basis. He submits that in fact, any denial of benefits on cumulative basis will result in treatment of unequals as equals thereby promoting discrimination and arbitrariness.

22. Mr. Nargolkar made reference to compilation of set of rules and executive instructions issued mainly by the Government of India and on such basis attempted to point out that there has been a consistent policy to construe age relaxations on cumulative basis. He also referred to some rules/executive instructions issued by the State Government to submit that similar policy of construing age relaxation on cumulative basis substantially emerges. He submits that therefore, even if rules / executive instructions may be silent in particular instances, the principle of Casus Omissus is not required to be invoked. Rather, the correct principle to be applied is the principle of contemporena expostio, in order to extend the benefit of age relaxation on cumulative basis.

23. Mr. Nargolkar submitted that provisions relating to age relaxations or concessions are in the nature of beneficial provisions or legislations. Therefore, assuming there is any ambiguity involved in the interpretation, such provision, must be construed so as to advance the benefit and not to restrict or even thwart the same. Applying the principle of beneficent construction, the rules/executive instructions concerning age relaxation must be so construed so as to extend benefits on cumulative basis.

24. Mr. Nargolkar submits that contentions on behalf of MPSC on the aspect of possible absurdities or the principle of ab inconvenienti is never the correct principle to be applied in such matters. He submits that legal provisions have to be adjudged by the generality of the cases they cover and not by the Freaks or the Martyrs. He submits that even otherwise such principles are to be invoked with great caution and not merely because, in some isolated cases, strange results might ensue.

CASE LAW:

25. The learned counsel cited several rulings in support of their respective submissions. The same shall be referred to in the course of the present opinion. Suffice to record that the main emphasis was on Indra Sawhney vs. Union of India – 1992 Supp. (3) SCC 217; M Nagraj vs. Union of India – AIR 2007 SCC 71; Union of India and Others vs. Selvakumar and Another, 2017 (3) SCC 504; Jitendra Kumar Singh and Another vs. State of Uttar Pradesh and Others, (2010) 3 SCC. 119 and K.P. Varghese vs. ITOAIR 1981 SC 1922.

CONSIDERATION OF THE SUBMISSIONS & CASE LAW:

26. As noted earlier, the main issue involved in this reference is whether, in absence of any indication in the rules/ executive instructions, provisions for age relaxation should be considered on cumulative or noncumulative basis in respect of applicants who are covered under more than one categories for which age relaxation may have been provided ?

27. Since the issue squarely relates to reservations, which takes within its sweep exemptions, concessions or relaxations in matters relating to employment or appointment to any office under the State, the issue will necessarily have to be considered in the context of the constitutional provisions in Articles 14,16 and 335.

28. Article 14 of the Constitution, which enshrines the guarantee of equality to all persons provides that the State shall not deny to any person equality before the law or the equal protection of the law within the territory of India. In the specific context of equality of opportunity in matters of public employment, Article 16(1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any Office under the State. Article 16(2) of the Constitution is even more specific and provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State. Article 16(3) is not very relevant for the present purposes, but Article 16(4) is extremely relevant and provides that nothing in this article shall prevent the State from making ‘any provision for the reservation of appointments or posts’ in favour of any backward class of citizen which, in the opinion of the State, is not adequately represented in the services under the State. For the present purposes Article 16(4A) or 16(4B) are not very relevant.

29. In Indra Sawhney (supra) the Constitution Bench on examining the meaning and content of the term ‘reservation’ in Article 16(4) concluded that the term includes not only reservation simpliciter or reservation proper, but also all other supplemental or ancillary provisions as also lesser types of special provisions like exemptions, concessions, preferences and relaxations, consistent no doubt with requirement of maintenance of efficiency of administrationthe admonition of Article 335 of the Constitution.

30. The relevant discussion on the aforesaid aspect is found at para 743 of the majority opinion in Indra Sawhney (supra) and the same reads thus:

“743. ………. Before we answer this question it is well to examine the meaning and content of the expression “reservation”. Its meaning has to be ascertained having regard to the context in which it occurs.

The relevant words are “any provision for the reservation of appointments or posts”. The question is whether the said words contemplate only one form of provision namely reservation simplicitor, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration — the admonition of Article 335.

……………………………………………………………………………… ……………………………………………………………………………..

There is no reason why such a special provision should not be held to be included within the larger concept of reservation. It is in this context that the words “any provision for the reservation of appointments and posts” assume significance. The word “any” and the associated words must be given their due meaning.

…………………………………………………………………………… (emphasis supplied)

31. The Constitution Bench in no uncertain terms holds that the concept of reservations which includes inter alia relaxations may be provided under Article 16(4) ‘consistent no doubt with the requirement of maintenance of efficiency of administration – the admonition of Article 335’. Therefore, reference to the scope and import of the provisions in Article 335 becomes necessary.

32. Article 335 of the Constitution provides that the claims of the members of SC and ST shall be taken into consideration consistently with maintenance of efficiency of administration, in any appointments to services and posts in connection with the affairs of the union or a State. The proviso inserted by the Constitution (82nd amendment) Act 2000 provides that nothing in this Article shall prevent in making any provision in favour of members of SC/ST for relaxation in qualifying marks in any examination or the lowering of standards of evaluation, for reservation in matter of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.

33. The seeming overlap between Article 16(4) and Article 335 has been explained by the Constitution Bench by holding that the provisions in Article 335 operate as a limitation on the powers vested in the State to provide for reservations or relaxations under Article 16(4) even though Article 16(4) makes no specific reference to Article 335 or raises the question of maintenance of efficiency of administration.

34. In M. Nagraj (supra) another Constitution Bench explained that the condition regarding “maintenance of efficiency of administration” imposed by Article 335 is a Constitutional limitation on the exercise of discretion vested in the State to provide for reservations or relaxations in public employment. The reason for this was explained that “efficiency” is a variable factor. It is therefore for the State to decide in a given case whether the overall efficiency will be affected by the grant of reservations or relaxations in a particular case. The State, it was held, must ensure that reservations or relaxations are not so excessive as to dilute the guarantee of equality in Article 16(1). Rather the State must evolve a mechanism under which all three relevant variables i.e. efficiency, equity and justice could be accommodated.

35. In High Court of M.P. vs. Satya Narayan Jhavar 2001 (7) SCC 161 the Apex Court explained that the condition of maintenance of efficiency in administration has to be respected not only when considering the claims of the members of SC/ST but also OBCs covered under Article 16(4) of the Constitution.

36. Similarly in Ashitosh Gupta vs. State of Rajasthan 2002 (4) SCC 34 the Apex Court observed that despite the provisions in Article 46 and 16(4) of the Constitution, Article 335 of the Constitution stipulates that the claims of SC and ST shall be taken into consideration consistent with the maintenance of efficiency of administration. The Apex Court observed that it was apparent that even in the matter of reservation in favour of SC/ST, the founding fathers of the Constitution did make a provision relating to maintenance of efficiency of administration. Therefore, if any statutory provision provides for recruitment of a candidate without bearing in mind the maintenance of efficiency of administration, such provision cannot be sustained being against the Constitutional mandate.

37. The provisions of Article 16(4) though not in the nature of exception to the provisions in Article 16(1) of the Constitution, nevertheless, have to be construed in harmony with one another. The provisions in Article 16(4) are concerned with the interest of backward classes and should be reconciled in such a manner so that they do not unreasonably encroach upon the field of equality guaranteed by Article 16(1) to all the citizens. Article 16(4) should be strictly construed so that the provisions therein do not render the guarantee of equality in Article 16(1) illusory or nugatory.

38. Again it is necessary to note that Article 16(1) embodies a Constitutional command that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. In contrast, there is no such directive or command in Article 16(4) of the Constitution. Indeed reservation or relaxation to a backward class is not a Constitutional mandate. Article 16(4) merely permits the State concerned to make provisions for reservations or relaxations if it so desires, consistent no doubt with the Constitutional limitations as may be prescribed. Article 16(4) only clarifies that the State is not prevented from making any provision for reservation or relaxation in favour of backward classes, which in the opinion of the State, may not be adequately represented in the services under the State. From all this it is quite clear that the provisions in Article 16(4) unlike the provisions in Article 16(1) are only enabling provisions and not some Constitutional mandate.

39. From the aforesaid, it follows that decisions on issues like whether to provide any reservations or relaxations at all or what should be the quantum, scope or extent of such reservations or relaxations or what should be the manner in which such reservations or relaxations be granted are all issues which essentially fall within the realm of legislative or executive policy. In the issue of reservations, a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system has to be examined on the facts of each case and these are not matters which can be left to be decided on the basis of any defaults or implications.

40. Therefore, in all such matters the State has to firstly take a conscious decision about whether or not it is necessary to make any provision for reservations or relaxations. If the State takes such a conscious decision to provide for reservations or relaxations, then in deciding about the scope or content of such reservations or relaxations, the State has to be alive to and conscious about the Constitutional limitations as prescribed. The State has to also be alive to and conscious about several other relevant and germane factors which arise in the context of making provisions for reservations or relaxations. For example, in the particular context of providing age relaxations, the State has to be conscious about the nature of the posts for which age relaxation is proposed. The State has to be conscious about the impact of maintenance of efficiency of administration should some comparatively older applicants be selected for appointment as a consequence of age relaxations. The State has to even be conscious about the impact of age relaxations upon the appointees concerned, particularly when it comes to computation of their qualifying service which is usually prescribed to avail pension or other retiral benefits. These factors are only illustrative and not exhaustive.

41. In the same manner, the State will have to be alive to and conscious about the impact of cumulative construction of the provisions relating to age relaxations on a host of relevant factors including but not restricted to the maintenance of efficiency of administration, nature of the posts, the capacities of the appointees etc. This is because cumulative construction as approved in Patil (supra) would undoubtedly increase the quantitative as well as the qualitative content of the relaxations. In fact, the meaning of the term “cumulative” suggests “increasing as each new fact or condition is considered” or “growing in quantity, strength or effect by successive additions”. Such cumulative construction would render greater number of applicants eligible to be considered for the appointments. Such cumulative construction would render relatively older applicants to be considered for appointments even though the maximum age limit prescribed in the respective recruitment rules or executive instructions may be much lesser, perhaps taking into consideration the nature of the posts or the nature of the duties expected from the appointees. The consequences of cumulative construction can therefore, not be regarded as so inconsequential or so trivial as to presume or commend its adoption even in the absence of any indication to such effect in the rules/executive instructions providing for age relaxations. Therefore, in the absence of any indication in the rules / executive instructions providing for age relaxations, we do not think that it would be safe to adopt a cumulative construction merely because there may be no specific provision in such rules/ executive instructions to expressly bar the adoption of such cumulative construction.

42. Several sets of rules / executive instructions enacted or issued by the Central Government or even the State Government were brought to our notice. In most of such rules/ executive instructions, there were clear indications when provisions relating to age relaxations were intended to be construed on cumulative basis. For example some rules / executive instructions specify that physically challenged persons belonging to SC / ST categories will be eligible for age relaxations of 10 years over and above the age relaxation of five years admissible to them as SC / ST. (G.I. Dept. of Per & A.R., O.M.No. 4/3/68Estt.( D), dated the 7th January, 1976). Some rules/ executive instructions provide that for appointments to Group C and Group D posts with the Central Government, the disabled defense service personnel would be allowed relaxation of age limit upto 45 years of age but such relaxations can go upto 50 years in case of disabled defense services personnel belonging to SC/ST category. There are rules/ executive instructions which provide for relaxation for upper age limit for meritorious sportsmen/ sportswomen upto maximum of 5 years but such rules/ executive instructions themselves provide that the upper age limit can be relaxed upto 10 years in respect of sportsmen/ sportswomen who belong to the SC/ST category. Some rules/ executive instructions provide that upper age limit can be relaxed upto 10 years in case of blind, deaf, mute and orthopaedically handicapped persons from Group C and Group D posts but that the relaxation can go upto 15 years if such applicants belong to SC/ST category and 13 years category if such applicants belong to OBC category.

43. This means that where provisions relating to age relaxations are intended to be construed on cumulative basis, the rules/ executive instructions say so in substantially specific or clear terms. From this, it is reasonable to infer that where the rules/ executive instructions are silent on such a crucial aspect, the intention was never to construe such rules/ executive instructions on cumulative basis and thereby quantitatively and qualitatively increase the scope, content or extent of relaxations. Any other interpretation might amount to reading into the rules/ executive instructions something which is just not to be found therein. Such a construction might amount to supplying causus ommissius when judicial precedents on the subject overwhelmingly militate against such supply except perhaps, in some exceptional situations.

44. In Pradip Kumar Maity vs. Chinmoy Kumar Bhunia and Others, (2013) 11 S.C.C. 122 the Apex Court, noted and even adversely commented upon the failure on the part of the State to prescribe age relaxation for the disabled who are otherwise entitled to protection under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. However, the Apex Court, keeping in perspective the extant legislation and executive fiats which provided for no age relaxation to the disabled, regrettably held that succor cannot be extended to the appellant who was indubitably suffering from a disability. The Apex Court in the ultimate paragraph held that in this analysis, it cannot but conclude that the appellant has failed to disclose any legislation or rules or orders that would facilitate, support or legitimize appellants claim for being conferred with the advantage of age relaxation, which is presently available only to SC/ST/OBC candidates and the Appeal was dismissed. This ruling indicates that in the absence of any specific legislation or executive fiat, benefit of age relaxation can not be extended even to an otherwise deserving and disabled applicant. This ruling, therefore militates against extension of benefits of age relaxation more than once or on a cumulative basis in the absence of any rule or executive instruction to that effect.

45. In Dr. L. Raymond vs. Florence Bessie Yakchee, AIR 1957 Allahabad 207, Desai, J. in his concurring opinion held that merely because clauses 4 to 8 of Article 11 schedule 1 to the Court Fees Act, 1870 can be applied cumulatively, it does not follow that they must be applied cumulatively. When two provisions of law can apply either cumulatively or alternatively to a given state of facts, there is no presumption that they are to be applied cumulatively any more than they are to be applied alternatively. Even if the Court finds that the intention of legislature was to apply them cumulatively but it has not expressed its intention in words capable of being construed to indicate it, then it is not for the Court to supply the words and hold that the provisions be construed cumulatively. A Court can construe or interpret existing words but can not supply missing words.

46. Even the principle of contemporena expositio pressed into service by the learned Amicus curiae does not persuade us to adopt a cumulative construction when there is no indication in the rules/ executive instructions to prompt such a construction. This principle posits that the words of statute must generally be understood in the sense they bore when the statute was enacted or in other words, they are liable to be understood as used with reference to the subject matter in the mind of the legislature and limited to it. This principle however has some well settled limitations. Firstly, such principle will apply where the statute in question is obscure or ambigious and its true meaning cannot be ascertained by resort to intrinsic aids of construction. Secondly, and generally such principle is applied to construction of old statutes and not relatively modern statutes as was pointed out by the Apex Court in Sr. Electrical Inspector vs. Lakshmi Narain Chopra, AIR 1962 SC 159.

47. In the present case, we are really not concerned with obscure or ambgious provisions but we are concerned with a situation where there are no provisions in the rules / executive instructions for construing age relaxation provisions in a cumulative manner. Secondly, we are also not dealing with any old or ancient statues to which generally the principle of contemporena expositio is applied.

48. Even if on the basis of the ruling of the Apex Court in K.P. Varghese vs. ITOAIR 1981 SC 1922, we were to apply the principle of contemporena expositio., the result would not be any different. This is because the practice which emerges from the material on record suggests that wherever cumulative construction was intended, such intention was invariably reflected in the rules / executive instructions. Therefore, even applying the principle of contemporena expositio, it will have to be held that in the absence of any indication in the rules/executive instructions, the provisions relating to age relaxations ought to not be construed on cumulative basis.

49. The learned Advocate General however submitted that if an applicant is covered under categories relatable to Article 16(4) and thereby eligible for vertical reservations as well as categories relatable to Article 16(1) and thereby eligible for horizontal reservations, then, having regard to the distinct sources and objects of such reservations, such applicant ought to be granted age relaxation benefits on cumulative basis. He however submits that if an applicant is covered under two or more categories relatable to Article 16(1) and thereby eligible for horizontal reservations, then such applicant cannot insist upon the benefit of age relaxation on cumulative basis and such applicant can be granted only one age relaxation benefit – perhaps that which is most beneficial to such applicant.

50. There are several reasons which dissuade us from accepting the aforesaid submissions made by the learned Advocate General.

51. In the first place, the Constitution Bench in Indra Sawhney (supra) has made it clear that reservations which include preferences, concessions, exemptions and relaxations can always be granted under Article 16(1) of the Constitution since Article 16(4) is not exhaustive of the very concept of reservation. However, the Constitution Bench, in the context of reservations or relaxations under Article 16(1) has held that such reservations or relaxations can be resorted to in very exceptional situations and not for all and sundry reasons.

52. The relevant discussion in the aforesaid regard is to be found in para 744 of Indra Sawhney (supra) and the same reads as follows:

“Question 2(c): Whether Article 16(4) is exhaustive of the very concept of reservations ?

744. The aspect next to be considered is whether clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside clause (4) i.e., under clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same time, one thing is clear. It is in very exceptional situations, — and not for all and sundry reasons — that any further reservations, of whatever kind, should be provided under clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress a specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under clause (4) as well as under clause (1), the vacancies available for free competition as well as reserved categories would be a correspondingly whittled down and that is not a reasonable thing to do.” (emphasis supplied)

53. From the above discussion in para 744, it is clear that though the State is competent to provide for reservations or relaxations to classes other than SC/ST and OBC under Article 16(1) of the Constitution, the State may resort to such reservations or relaxations only in very exceptional situations and not for all and sundry reasons. In fact, the Constitution Bench has held that all such reservations or relaxations under Article 16(1) are prima facie suspect in the sense that if they are questioned, then the onus is on the State to satisfy that the making of such reservations or relaxations was necessary in public interest to redress a specific situation. The Constitution Bench has reasoned that the very presence of Article 16(4) should act ‘as a damper upon the propensity to create further classes deserving special treatment.’ The Constitution Bench has further held that the reason for saying so is very simple. ‘If reservations are made both under clause (4) as well as under clause (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do.’

54. The aforesaid not only contemplates serious application of mind before any provisions for reservations or relaxations are made under Article 16(1) of the Constitution but further indicates that the provisions for reservations or relaxations under Article 16(1) cannot operate by default. The cumulative construction approved in Patil (supra) will extend the content and scope of the provisions relating to age relaxations. In turn such extension will contribute to the whittling down of vacancies available for free competition as well as to the reserved categories. This, as pointed out by the Constitution Bench, will not be a reasonable thing to do. Therefore, at least in the absence of any indication in the rules / executive instructions, the view in Dubewar (supra) will have to be preferred over the view in Patil (supra).

55. Secondly, the Constitution Bench in Indra Sawhney (supra) has held that though Article 16(4) is not exhaustive of the very concept of reservations, nevertheless the same is exhaustive of the subject of reservations in favour of SC/ST and OBC. This means that the members belonging to SC/ST and OBC cannot ordinarily insist upon any reservations or relaxations apart from or outside of Article 16(4) of the Constitution.

56. The relevant discussion in the aforesaid regard is to be found in para 743 of Indra Sawhney (supra) and the same reads thus:

“743. …………..It is true that in Thomas it was assumed by the majority that clause (4) permits only one form of provision namely reservation of appointments/posts and that if any concessions or exemptions are to be extended to backward classes it can be done only under clause (1) of Article 16. In fact the argument of the writ petitioners (who succeeded before the Kerala High Court) was that the only type of provision that the State can make in favour of the backward classes is reservation of appointments/posts provided by clause (4) and that the said clause does not contemplate or permit granting of any exemptions or concessions to the backward classes. This argument was accepted by Kerala High Court. This Court, however, by a majority (Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) reversed the view taken by Kerala High Court, holding that such exemptions/concessions can be extended under clause (1) of Article 16. Beg, J who joined the majority in upholding the validity of notification rested his opinion on a different basis. According to him, the exemption provided by impugned notification was indeed a kind of reservation and was warranted by and relatable to clause (4) of Article 16 itself. This was because — according to the learned Judge — clause (4) was exhaustive of the provisions that can be made in favour of the backward classes in the matter of employment. We are inclined to agree with the view taken by Beg, J for the reasons given hereinabove. In our opinion, therefore, where the State finds it necessary — for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. In other words, all supplemental and ancillary provisions to ensure full availment of provisions for reservation can be provided as part of concept of reservation itself. Similarly, in a given situation, the State may think that in the case of a particular backward class it is not necessary to provide reservation of appointments/posts and that it would be sufficient if a certain preference or a concession is provided in their favour. This can be done under clause (4) itself. In this sense, clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of “the backward class of citizens”. Backward Classes having been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of clause (4) of Article 16”.

(emphasis supplied)

57. From the above discussion, it is quite clear that Article 16(4) is exhaustive of the special provisions that can be made in favour of SC/ST and OBC and consequently, it will not be open for the members of the SC/ST and OBC to insist upon any further reservations or relaxations apart from or outside Article 16(4) of the Constitution. The Constitution Bench has reasoned that since backward classes, i.e., SC/ST and OBC have been classified by the Constitution itself as a class deserving special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of clause (4) of Article 16.

58. The aforesaid means that if any special provisions like age relaxations have already been made in favour of SC/ST and OBC under Article 16(4) of the Constitution, then, it is not ordinarily open to the members belonging to SC/ST and OBC category to insist upon benefits of further classification or further special treatment apart from or outside the provisions of Article 16(4) of the Constitution. Therefore, if an applicant avails benefits of age relaxations under Article 16(4) on the basis that he / she belongs to SC/ST or OBC category, then such an applicant cannot insist upon additional benefits of age relaxation under Article 16(1) of the Constitution on the ground that such applicant also belongs to some category relatable to Article 16(1) like say physically challenged, exservicemen, ward of freedom fighter, project affected person etc., and that too in the absence of any specific provision or indication in the rules / executive instructions dealing with age relaxations. The observations in para 743 of Indra Sawhney (supra), in our opinion are sufficient to reject the submissions made by the learned Advocate General based upon sources or objects of reservations or relaxations relatable to Article 16(1) and 16(4) of the Constitution.

59. Thirdly, we are of the opinion that even otherwise the distinction based upon the distinct sources or distinct purposes makes no significant difference to the principle involved. If such a distinction is to be accepted then the later submission made by the learned Advocate General in the context of noncumulative construction when it comes to applicants covered under two or more categories relatable to Article 16(1) will be rendered vulnerable. Then, it would be contended that the purpose or even the source of reservation in favour of the physically challenged is different and distinct from the purpose and even the source of reservation in favour of say exservicemen or project affected persons.

60. Rather, a noncumulative construction in the absence of any specific provision or indication in the rules / executive instructions will be entirely consistent with the proposition that Article 16(4) is exhaustive of the subject of reservations or relaxations in favour of SC/ST and OBC. Therefore, if any provisions for reservations or relaxations have been made in favour of SC/ST and OBC under Article 16(4) then it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of Article 16(4). To classify SC/ST or OBC applicants who have already availed of the benefits of reservations or relaxations under Article 16(4) into say physically challenged SC applicants or exservicemen OBC applicants or to grant them any further special treatment on such basis would amount to further classification of SC/ST or OBC applicants. The same would also amount to award of further special treatment in favour of SC /ST and OBC apart from or outside Article 16(4) of the Constitution. This in turn would defeat the proposition that Article 16(4) is exhaustive of the special provisions that can be made in favour of SC/ST and OBC. The adoption of cumulative construction as approved in Patil (supra) would thus run counter to this proposition expounded by the Constitution Bench in Indra Sawhney (supra).

61. Since, the learned Advocate General made reference to the concept of vertical and horizontal reservations, it is necessary to note that in Indra Sawhney (supra) the Constitution Bench held that ordinarily reservations proper ought not to exceed the ceiling of 50%. In that context an issue arose as to whether this ceiling ought to apply only to reservations in favour of SC/ST and OBC under Article 16(4) (vertical reservations) or whether the ceiling would apply to reservations proper made under both Article 16(4) as well as under 16(1) (horizontal reservations).

62. The Constitution Bench answered the aforesaid issue at paragraph 812 and 813 in the following terms:

“812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as ‘vertical reservations’ and ‘horizontal reservations’. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations.

Horizontal reservations cut across the vertical reservations — what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains — and should remain — the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.” (emphasis supplied)

“813. It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be — indeed cannot be — applicable to exemptions, concessions or relaxations, if any, provided to ‘Backward Class of Citizens’ under Article 16(4).”

63. Again the aforesaid discussion expresses the anxiety to adopt a construction which will maintain the ceiling of 50% to the extent possible. If the vertical and horizontal reservations were to be construed on cumulative basis or without interlocking, then the overall ceiling of 50% would have been difficult to maintain thereby resulting in excessive reservations. The Constitution Bench no doubt clarified that the ceiling of 50% would apply only to reservation proper and not to exemptions, concessions or relaxations in favour of SC/ST and OBC under Article 16(4) of the Constitution. But the principle of interlocking the vertical and horizontal reservations so that the overall ceiling of 50% is maintained suggests that in such matters interpretation or construction which does not unduly enhance the scope or quantum of reservations or relaxations should be preferred over an interpretation or construction which enhances the scope or quantum of reservations or relaxations both, quantitatively as well as qualitatively. Therefore, in the absence of any indication in the rules / executive instructions, the application of the above principle also leads us to prefer the view in Dubewar (supra) over the view in Patil (supra).

64. The learned Amicus Curiae contended that grant of age relaxation may not amount to grant of reservations since the grant of age relaxation does not disturb the concept of ‘level playing field’ but rather restores such concept. He also contended that if the applicants belonging to SC/ST or OBC categories are further disadvantaged on account of belonging to categories like the physically challenged or the project affected, then such applicants deserve double or even triple benefits of age relaxation. He submitted that denial of such double or triple benefits will virtually amount to treating a physically challenged SC applicant on par with an SC applicant who is not physically challenged. The learned Amicus Curiae submits that this will amount to treating unequals as equals which is equally violative of the principles of equality enshrined in Articles 14 and 16 of the Constitution. He relied on Jitendra Kumar (supra).

65. In Jitendra Kumar (supra) the cardinal issue before the Apex Court was whether reserved category candidates who have taken the benefit of age or fee relaxations were entitled to be appointed against the seats reserved for the general category on the ground that in the written examination they had secured more marks than the last candidate in the general category. The Apex Court held that such reserved category candidates were entitled to be appointed against the seats reserved for the general category in the context of the statutory rules as applicable and the Apex Court also proceeded to make some general observations in para 75 to the effect that provisions for age relaxation may not amount to reservations since they do not upset ‘level playing field’ visàvis the general category candidates.

66. In at least two later judgments, i.e., Deepa E.V. vs. Union of India and ors. – (2017) 12 SCC 680 and Gaurav Pradhan and ors. Vs. State of Rajasthan and ors. – (2018) 11 SCC, the Apex Court clarified that the ruling in Jitendra Kumar (supra) was in the context of the peculiar statutory scheme and the general observations were accordingly restricted to the peculiar facts and the peculiar statutory scheme which fell for consideration.

67. In Deepa E.V. (supra) once again, the issue arose as to whether the applicant who belonged to OBC category and who had availed the benefit of age relaxation could claim appointment against the post reserved for general category candidates on the ground that she had secured more marks than the last candidate in the general category. This time, the Apex Court ruled that the matter will have to be governed by the statutory rules or executive instructions in force at the time of the recruitment. In the rules /executive instructions in force at the time of recruitment, there was an express bar for the candidates belonging to SC/ ST and OBC categories who had availed age relaxation from being considered to posts meant for the general categories. The Apex Court distinguished Jitendra Kumar (supra) by pointing out that the said decision was based upon the statutory interpretation of the U.P.Act, 1994 and the Government order dated 25th March 1994 which had provided an entirely different scheme under which candidates from the reserved categories who had availed age or fee relaxations could nevertheless be considered for appointments to posts meant for general categories provided that such reserved category candidates secured more marks than the last candidate in the general category.

68. In Gaurav Pradhan (supra), the Apex Court followed its decision in Deepa E.V. (supra) and specifically restricted the general observations in paragraph 75 of Jiendra Kumar (supra) to the effect that relaxation in age does not upset level playing field by stating that the ratio in Jitendra Kumar (supra) has to be read in the context of statutory provisions and the Government order dated 25th March 1994. The Apex Court held that the general observations cannot be applied in a case where the Government orders are to the converse effect.

69. In Gaurav Pradhan (supra) , the Apex Court reiterated the legal position that reservation being the enabling provision, the manner and extent to which reservation is provided has to be spelled from the orders issued by the Government from time to time. The Apex Court also held that reservation is wide enough to include exemption, concession, etc. since such exemptions, concessions etc. are allowable to the reserved category candidates to effectuate and to give effect to the object behind Article 16 (4) of the Constitution. The State is therefore, fully empowered to lay down the criteria for grant of exemption, concession and relaxations or the manner and methodology to effectuate such reservations. Based on all this, the Apex Court held that the State was competent to provide a methodology for migration of reserved category candidates to general category provided such candidates had not availed any relaxation on the basis that they belonged to reserved category or to bar the migration where such reserved category candidates had availed the benefit of age relaxation.

70. The rulings in Deepa E.V. (supra) and Gaurav Pradhan (supra) also support the view that reservation as contemplated under Article 16 (includes not only reservation proper but also exemptions, concessions, relaxations to effectuate the object of reservation. Further, these decisions also lay down that provisions for reservation are only enabling provisions and therefore, the manner and the extent to which reservation is to be provided, has to be spelled out from the orders issued by the Government from time to time. Therefore, in the absence of any indication in the rules/ executive instructions as to whether the benefits of age relaxation are to be construed on cumulative basis it would be quite unsafe to extend the benefits of such relaxation on cumulative basis, merely on the ground that there is no express bar in the rules / executive instructions to adopt such a construction. Since, cumulative construction of age relaxation provisions would virtually amount to making of reservation or extending scope of reservation, it is only appropriate that such making of reservation or extending of the scope of reservations is preceded by application of mind and a conscious decision to make or extend the scope of reservations. Therefore, in the absence of any indication in the rules or executive instructions, it will not be safe to construe the provisions as to age relaxation on a cumulative basis.

71. In Union of India vs. Shiv Bachan Rai (2001) 9 Supreme Court Cases 356, the Apex Court held that prescribing of any age limit for a given post, as also deciding the extent to which any relaxation can be given if an age limit is prescribed, are essentially matters of policy. It is, therefore, open to the Government while framing rules under proviso to Article 309 of the Constitution to prescribe such age limits or to prescribe the extent to which any relaxation can be given. Prescription of such limit or the extent of relaxation to be given, cannot be termed as arbitrary or unreasonable. In the said case, the only basis on which the respondent had moved the Central Administrative Tribunal was the earlier Rules of 1976 under which, though an age limit was prescribed, a limit had not been placed on the extent of relaxation which could be granted. The Apex Court reversed the decision of the Tribunal which had held that prescription of a limit on the extent of relaxation was invalid and arbitrary by observing that if at all any charge of arbitrariness can be levied in such cases, it is to the nonprescribing of any limit on the extent of relaxation. The Apex Court held that not prescribing any basis for granting relaxation or not prescribing any limit on the extent of relaxation, might lead to arbitrariness in exercise of power of relaxation.

72. The ruling in Shivbachan Rai (supra) makes it clear that no arbitrariness or unreasonableness is involved in prescribing limits on the extent of age relaxations. Rather, arbitrariness or unreasonableness would result in not prescribing any basis for grant of relaxation or in prescribing limits on the extent of relaxation. Thus, grant of some open ended age relaxation or conferment of power of age relaxation without any limits was impermissible. Adoption of cumulative construction of provisions relating to age relaxations, in the absence of any indication to this effect in the rules / executive instructions might also lead to grant of open ended age relaxations particularly in case of applicants who are covered under say three to four categories for which provisions for age relaxations may have been made. At least, by way of default therefore, it will be unsafe to adopt cumulative construction in such matters.

73. The contention raised by the learned Amicus Curiae that adoption of a noncumulative construction might result in treating unequals as equals can be considered by reference to the ruling of the Apex Court in Union of India vs. Selvakumar (supra). Similar contention was raised in the said case before the Apex Court in the context of number of attempts made available to physically challenged candidates belonging to the general and reserved categories. In the said case, the Apex Court was dealing with challenges to judgments of the Madras High Court and Delhi High Court allowing writ petitions filed by physically challenged candidates belonging to OBC claiming that they were entitled to avail 10 attempts instead of 7 attempts in civil services examination. This claim was on the ground that the number of attempts for physically challenged candidates belonging to general category had been increased from 4 to 7 and therefore there should have been a proportionate increase in the attempts permissible to physically challenged candidates belonging to the OBC category. The precise contention raised was that the treatment of physically challenged OBC candidates and physically challenged general category candidates at par would amount to treatment of unequals as equals thereby violating the Articles 14 and 16 of the Constitution.

74. The Apex Court expressly rejected the aforesaid contention by holding that this was not a case of treating unequals as equals. It was a case of extending concessions and relaxations to physically handicapped candidates belonging to general category as well as physically handicapped candidates belonging to OBC category. ‘Physically handicapped category’ is a category in itself, a person who is physically handicapped, be it physically handicapped of a general category or OBC category, suffering from similar disability has to be treated alike in extending the relaxations and concessions. Both being provided 7 attempts to appear in Civil Services Examination, no discrimination or arbitrariness can be found in such scenario. The Apex Court explained that reserved category candidates belonging to OBC are separately entitled for benefits which flow from ‘vertical reservations’ and ‘horizontal reservations’ being different from vertical reservations, no discrimination can be found when physically handicapped candidates of both the categories get equal chances, i.e., 7 chances to appear in the examination. The Apex Court referring to its earlier ruling in Mahesh Gupta and ors vs. Yashwant Kumar Ahirwar and ors.( 2007) 8 SCC 621 held that a disabled is a disabled. The question of making any further reservation on the basis of caste, creed or religion ordinarily may not arise. They constitute a special class. This reasoning is sufficient to reject the contention based upon alleged treatment of unequals as equals.

75. The Apex Court in Union of India vs. Selvakumar (supra) indicated yet another reason for reversing the view taken by the Madras and Delhi High Court that denial of additional attempts to physically challenged applicants belonging to reserved category did not amount to treatment of unequals as equals. At paragraph 47, the Apex Court held that the horizontal reservation and relaxation for physically challenged applicants for Civil Services Examination, was a matter of governmental policy and the Government after considering the relevant materials has extended relaxation and concessions to the physically challenged applicants belonging to reserved category as well as general category. Therefore, it was not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The Court can only interfere if the policy framed is absolutely capricious and noninformed by reasons, or totally arbitrary, offending the basic requirement of Article 14 of the Constitution.

76. Therefore, applying the aforesaid principles to the present case, we do not think that cumulative construction can be adopted in respect of provisions relating to age relaxation in the absence of any policy prompting such cumulative construction being reflected in the rules / executive instructions as applicable. Besides, we are of the opinion that the principle of discrimination has to be examined also from the perspective of the general category candidates. Admittedly, on account of social or other handicaps, some applicants have been granted benefits of age relaxation, which benefits do not apply to applicants belonging to general category. In the absence of any indication in the rules / executive instructions it may not be permissible to further classify such applicants on the basis of certain additional handicaps or on the basis that such applicants are covered in categories relatable to both Article 16(1) as well as Article 16(4) or to more than one categories relatable to Article 16(1). Such excessive classification or rather, award of excessive benefits on the basis of excessive classification at least cannot result by default or in the absence of specific provision warranting the extension of such cumulative benefits.

77. The provisions relating to age relaxations are to be construed strictly just as general provisions relating to exemptions or relaxations are subject to strict construction. Ordinarily, there is no scope for implications in such matters. In Union of India vs. Arulmozhi Iniarasu and ors 2(7) SCC 397, the Apex Court has held that engagement of casual labourers even for considerably long time did not confer any legal right on them for seeking a writ of mandamus for relaxation of age limit. Besides, the direction for grant of relaxation in age limit over and above what was stipulated in the recruitment rule/ advertisement was unsustainable.

78. The scope or content of reservations or relaxations cannot be extended by applying the principle of beneficial construction. The provisions for reservations or relaxations have to be so construed as not render guarantee of equality under Article 16(1) illusory or nugatory. In any case, the principle of beneficial construction can apply in case of obscure or ambiguous provisions. In the present case, we are concerned with a situation where the rules / executive instructions give no indication as to whether the provisions of age relaxation are to be construed on a cumulative basis when an applicant is covered under more than one categories for which such relaxations are provided. Though, as rightly pointed out by the learned Amicus Curiae such matters have to be adjudged by the generality of the cases they cover and not by any Freaks or Martyrs the rules / executive instructions may unwittingly produce, even on the generality of the cases, we are of the opinion that the scope and extent of reservations or relaxations cannot be enhanced or extended by adopting a cumulative construction in the absence of any such indication in the rules / executive instructions. In a given case, the rules / executive instructions may specifically permit a cumulative construction even though, such construction may result in an applicant who may be close to the age of superannuation being rendered eligible for consideration. Whether to permit such a situation or not may be in the realm of legislative or executive policy. As was made clear at the outset, we are not dealing with issues of legality or validity of rules / executive instructions of such nature. All that we say is that in the absence of any policy as reflected in the rules / executive instructions, cumulative construction cannot be preferred over noncumulative construction when it comes to interpretation of provisions relating to age relaxation.

79. The contention that MPSC lacks locus standi is not at all relevant in order to answer the present reference. In any case, we fail to appreciate how the MPSC can be said to lack locus standi to raise such an issue when their rejection of the candidatures of the applicants came to be upset by the MAT by adopting a cumulative construction of the provisions relating to age relaxation. The MPSC has pointed out that there is one decision of the Division Bench of this Court which supports their view and another which does not support their view. Therefore, we see no force in the contention that MPSC lacks locus standi in the matter.

80. The issue as to whether Patil (supra) is per incuriam or sub silentio because it failed to notice or consider prior decision in Dubewar (supra) need not be the basis for answering this reference. We accept the suggestion of the learned Amicus Curiae that it is better that the reference is answered and the conflict between the two decisions is resolved. We however, see no merit in the contention that there was no conflict between the views expressed in Dubewar (supra) and Patil (supra). In Dubewar (supra) , the Division Bench declined the invitation to construe the provisions on cumulative basis whereas in Patil (supra) the provisions were construed on cumulative basis. The distinction on the basis of slight difference in the facts does not shadow the conflicting principles of interpretation adopted in the two decisions. There was a clear conflict between the two decisions necessitating the present reference.

81. Therefore, upon cumulative consideration of the aforesaid factors, we are of the opinion that in the absence of any indication in the rules / executive instructions, the provisions as to age relaxation should be construed on noncumulative basis as held in Dubewar (supra) and not on cumulative basis as held in Patil (supra).

ANCILLARY ISSUE :

82. Ancillary to the main issue involved in this reference, there arises yet another issue as to which of the two or more benefits of age relaxations can an applicant, who is covered under two or more categories eligible for age relaxation, claim ? For example, if an applicant is both a member of SC category as well as a physically challenged category and the age relaxation prescribed for SC category is upto 5 years and for physically challenged category is upto 10 years, then, the issue which arises is which of the two benefits of age relaxation can such an applicant claim ?

83. According to us, in the absence of any indication to the contrary in the rules/executive instructions governing the issue of age relaxation, such an applicant must have the choice to opt for either of the two benefits. Generally, though not invariably this could be the maximum of the two or more benefits available to such an applicant. This means that the applicant, in the example referred to in the preceding paragraph may opt for the benefit of age relaxation upto 5 years on the ground of his belonging to the SC category if such relaxation suffices his purpose or such applicant may opt for benefit of age relaxation upto 10 years on the ground that he belongs to physically challenged category. However, in absence of any indication in rules/executive instructions governing issue of age relaxations, such an applicant cannot insist upon availing benefits of age relaxations on cumulative basis, i.e., age relaxation of 5+10 = 15 years.

83a. Before we conclude, we thank Mr. S.R. Nargolkar, learned Amicus Curiae for the able assistance rendered to us in this matter.

ANSWERS AND DIRECTIONS :

84. Accordingly, we answer the reference in the following terms:

A] In the absence of any indication in the rules / executive instructions, the provisions for age relaxation cannot be construed on cumulative basis in respect of applicants who are covered under more than one categories for which age relaxations may have been provided. Rather, such provisions will have to be construed on a noncumulative basis;

B] This means that if an applicant, for example belongs to the SC category for which age relaxation upto 5 years is provided and also belongs to exservicemen category for which the age relaxation upto 3 years is provided, then such applicant, in the absence of any indication in the rules / executive instructions, will be entitled to claim age relaxation upto 5 years or upto 3 years (on noncumulative basis) as per his/her choice but not age relaxation upto 5 + 3 = 8 years (on cumulative basis);

C] The applicants who are covered under more than one categories for which age relaxations may have been provided, in the absence of any contrary indication in the rules / executive instructions, will have a choice to opt for benefits of age relaxation which suit their interests best, though on noncumulative basis as explained in paragraph 83 of this opinion;

D] The ruling in Dubewar (supra) which adopts the principle of non cumulative construction is therefore, endorsed and the ruling in Patil (supra) which adopts the principle of cumulative construction, is not;

E] The two petitions may therefore be placed before the regular Bench for disposal in accordance with this opinion.

(A. S. OKA, J.) (M. S. SONAK, J.) (DR. SHALINI PHANSALKARJOSHI, J.)