High Court
Case Details
Neutral Citation No. - 2023:AHC:177882 Court No. - 38 Case :- WRIT - A No. - 55380 of 2010 Petitioner :- Smt. Anju Mehta And Another Respondent :- Union Of India And Others Counsel for Petitioner :- V. K. Singh,G. K. Singh,Hritudhwaj Pratap Sahi,Sankalp Narain Counsel for Respondent :- A. S. G. I.,Prashant Mathur,Rahul Chaudhary,S.C. Hon'ble Saurabh Srivastava,J. (1) Heard Sri Sankalp Narayan Singh, learned counsel for the petitioner
Legal Reasoning
and Sri Prashant Mathur, learned counsel for respondents. (2) Present petition has been filed seeking following reliefs: "i. a writ, order or direction in the nature of certiorari quashing the impugned order dated 29.1.2010 (Annexure no. 1 to this writ petition) passed by respondent no. 4. ii. a writ, order or direction in the nature of mandamus commanding the respondents to appoint the petitioners as Assistant Teachers (B.T.C. Grade) by granting age relaxation." (3) The petitioner is aggrieved by the order dated 29.01.2010 passed by the Joint Director, Directorate Defence Estates, Government of India, Ministry of Defence, Central Command, Lucknow Cantt/ respondent no.4, whereby he has refused to grant age relaxation to the petitioner for appointment as Assistant Teacher BTC grade in the year 2007. (4) Learned counsel for the petitioner has submitted that as per Rule 5-B of the Cantonment Funds Servants Rules 1937, the petitioner is entitled to age relaxation as the Cantonment Board is authorized to give such relaxation. By the impugned order the age relaxation has been refused only on the ground that it will be treated as precedent in other cases. (5) Learned counsel for the petitioner has pointed out to the information given by the Cantonment Board on 8th March, 2010, whereby age relaxation was provided to 7 employees of the Cantonment Board, namely, Sri Sanjiv Tripathi, Assistant Teacher, Sri Sridhar Shukla, Assistant Teacher, Sri Deep Kumar, Sanitary Inspector, Sri Vimal Kumar Awasthi, Compounder, Smt. Arti Krishnan, Assistant Teacher, Smt. Parnita Asthana, Assistant Teacher and Sri Iqbal Hussnain, Vaccinator ranging from two years to 10 years. He has submitted that petitioner has
Decision
been discriminated. He has not been given age relaxation by the respondents when the other employees had been granted age relaxation, as it is clear from the Annexure 16 to the writ petition. (6) In the counter affidavit filed on behalf of the respondents, it has been submitted that the power conferred under Rule 5-B(2) of Cantonment Funds Servants Rules 1937 is discretionary power and it is a complete prerogative of the competent authority whether to grant age relaxation or not. (7) For substantiating the arguments raised by respondents, learned counsel for the respondents took reliance of the judgment rendered by Hon'ble Supreme Court in Civil Appeal no. 1433 of 2006 decided on 03.03.2006 (State of Uttar Pradesh Vs. Rajkumar Sharma), wherein the controversy was related to grant relaxation to a person who were selected in respect of the hill cadre, but all the post advertised for the plain cadre have been filled up and the State has taken stand that there was no scope for appointing non-official respondents. Relaxation was given for a period of three years for applicants, when applications are invited for selection by the Uttar Pradesh Public Service Commission or the Uttranchal State Public Service Commission and then relaxation is to be granted when fresh applications are invited and that was not the case of the Rajkumar Sharma who has been extended relaxation in pursuance to the judgment rendered by the Division Bench of this Court under the impression that the select list was enforced. In the instant matter the above mentioned judgment State of U.P. Vs. Rajkumar Sharma (supra) is not at all applicable since it is the case of the petitioner that once the relaxation of age has been extended to the similarly situated persons in pursuance to the Rule 5-B(2) of Cantonment Funds Servant Rules, 1937 the same may be extended in favour of the petitioner. (8) Learned counsel for the respondent also relied upon the judgment passed by Hon'ble Apex Court in case of Civil 534 (N) of 1973 decided on dated 02.05.1973 (State of Haryana Vs. Subhash Chandra Marwaha) wherein it has been held that the examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later and it is open then to the Government to decide how many appointments shall be made and the mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed, this case is also having no bearing over the issue which has been raised by the petitioner while challenging the order dated 29.01.2010 which impugned the present petition. One more judgment rendered by Hon'ble Supreme Court in case of Criminal Appeal 2 of 12 no. 2020 of 2009 decided on dated 04.11.2009 (Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi, Dosukhan Samadkhan Sindhi and ors.) which was also decided on other footings than the case in hand. While deciding the criminal appeal, Hon'ble Apex Court held that the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner and as such the approach of the High Court in granting relief not prayed for cannot be approved by this Court, whereas, in the instant matter, the specific relief has been sought by the petitioner for quashing the denial of the exemption warranted to be extended in favour of the petitioner and as such the case of Bharat Amratlal Kothari (supra) is also not applicable in the instant matter. (9) Lastly, learned counsel for the respondents cited the judgment rendered by co-ordinate Bench of this Court passed in Service Single no. 4978 of 1995 decided on dated 13.05.2019 (Dev Dutt Sharma Vs. State of U.P), wherein it has been held that the Court finds that the petitioner whose name finds place at the bottom of the waiting list and who approached this Court much after expiry of select list/waiting list, has no legal/enforceable right to seek appointment on the basis of select list/waiting list dated 18.11.1991 and as such the petition for the relief sought based on select list/waiting list dated 18.11.1991 has no force. However, in the instant petition there is hardly any delay while seeking relief for quashing order dated 29.01.2010 since the instant writ petition has been initially preferred for challenging the order dated 29.01.2010 and the same has been challenged through the instant petition on dated 06.09.2010. (10) During pendency of the instant writ petition, counter, rejoinder has already been exchanged and the matter was pending to be adjudicated finally by this Court, meanwhile the same controversy has been raised in Writ A no. 2129 of 2015 decided on dated 11.05.2022 (Ashwarya Kumar Saxena Versus Union of India and 5 others), wherein the co-ordinate Bench of this Court directed to grant relaxation of age to the petitioner and grant him post facto appointment on the post of Computer Teacher from the date he was entitled to the same and pay his arrears of salary within 6 weeks and other benefits of continuous service from the date of impugned order dated 11.09.2014 passed by responding authority and also his month to month salary forthwith. 3 of 12 (11) Learned counsel for the petitioner relied upon the judgment of Ashwarya Kumar Saxena (supra) which has been later on upheld by the Division Bench of this Court while deciding Special Appeal No. 492 of 2022 decided on dated 07.07.2022, wherein the appointment of the Ashwarya Kumar Saxena was also for the same year as of petitioners. (12) After hearing rival submissions, this Court finds that the public servant cannot pass an illegal and arbitrary order in the grab of exercising discretion vested under Rule 5-B(2) of Cantonment Funds Servants Rules 1937. (13) The Apex Court in case of Haji T. M. Hassan Rawther Vs. Kerala Financial Corporation, AIR 1988 Supreme Court 157 discussed the requirements of exercise of discretion by State Agency in paras 9, 10 and 12 as follows : 9. In R.D. Shetty v. The International Airport Authority of India and Ors. [1979] 3 SCR 1014 at 1041 Bhagwati, J. speaking for the Court observed: "Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweetwill, but its action must be in conformity with some principle which meets the test of reason and relevance. This rule also flows directly from the doctrine of equality embodied in Art 14. It is now well settled as a result of the decisions of this Court in E.P. Rayappa v. State of Tamil Nadu and Maneka Gandhi v. Union of India that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory: it must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is protected by Art. 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non- discriminatory." 10. In Kasturi Lal Lakshmi Reddy v. State of J & K, [1980] 3 SCR 1338 at 1355 Bhagwati, J. again speaking for the Court reiterated what he said earlier to R.D. Shetty case. The learned Judge went on to state: 4 of 12 "Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated. If the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be liable to be tested for its validity on the touch-stone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid." The learned Judge continued (at p. 1357): "But one basic principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the Governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest because as we said above, there are a large number of policy considerations which must necessarily weigh with the Government in taking action and therefore, the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law." 12. In Shri Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109 at 1133, O. Chinnappa Reddy, J. after considering almost all the decisions of this Court on the subject summarised the propositions in the following terms: "On a consideration of the relevant cases cited at the bar the following propositions may be taken as well established: State owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain percepts and principes have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism." (14) Similarly in the case of Reliance Airport Developers (P) Ltd. Vs. Airports Authority of India and others, (2206) 10 Supreme Court Cases 1, the Apex Court considered the issue in para 29 to 35 as follows :- 29. Though the word, discretion literally means and denotes an uncontrolled power of disposal yet in law, the meaning given to this word appears to be a power decide within the limits allowed by positive rules of 5 of 12 law as to the punishments, remedies or costs. This would mean that even if a person has a discretion to do something the said discretion has to be exercised within the limit allowed by positive rules of law. The literal meaning of the word discretion therefore, unmistakably avoids untrammeled or uncontrolled choice and more positively pointed out at there being a positive control of some judicial principles. 30. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection: deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private -affections of persons. 31. The word discretion standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care: therefore, where the Legislature concedes discretion it also imposes a heavy responsibility. 32. The discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon .constitution, temper, passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable, said Lord Camden, L.C.J., in Hindson and Kersey, (1680) 8 How St Tr 57. 33. If a certain latitude or liberty accorded by statute or rules to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him. It is judicial discretion. It limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious, or exempt from review. 34.Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive rights. The matters which should regulate the exercise of discretion have been stated by eminent Judges in somewhat different forms of words but with substantial identity. When a statute gives a Judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet (Per Willes J. in Lee v. Budge Railway Co., (1871) LR 6 CP 576 and in Morgan v. Morgan, 1869 LR 1 P & M 644). 35. In ADVANCED LAW LEXICON BY P. RAMANATHA AIYAR, it has been stated as follows: 6 of 12 Discretion. Power of the Court or arbitrators to decide as they think fit. The word discretion connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. [Corpus Juris Secundum, Vol. 27, page 289 as referred in Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri, VI (2004) SLT 428, 430, para 6] A discretion, said Lord WRENBURY, does not empower a man to do what he likes merely because he is minded to do so, he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course which reason dictates. (Roberts v. Hopwood, 1925 AC 578). This approach to construction has two consequences the statutory discretion must be truly exercised, and when exercised it must be exercised reasonably. (MAXWELL). Discretion, said Lord MANSFIELD in R. v. Wilkes, (1770) 98 ER 327), when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague, and fanciful but legal and regular. (See Craies on Statute Law, 6th Edn. P.273) Discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rookes case according to law, and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. Lord HALSBURY LC in Susannah Sharp v. Wakefield, (1891) AC 173 at p. 179 referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd, (AIR 1995 Cal 327, 333-335). (See also Aero Traders Pvt. Ltd. v. Ravindra Kumar Suri, VI (2004) SLT 428, 430, para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar, (AIR 1999 Raj 13, 18) and Rekha Bhasin v. Union of India, (AIR 1998 Del 314, 322.) Discretion, Lord MANSFIELD stated in classic terms in, John Wilkes case, (1970) 4 Hurr 2528, must be a sound one governed by law and guided by rule, not by humour; Lord DENNING put it eloquently in Breem v. Amalgamated Engineering Union, (1971) 1 All ER 1148, that in a Government of Laws there is nothing like unfettered discretion immune from judicial reviewability. Courts stand between the executive and the subject alert, to see that discretionary power is not exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow and substance, between equity and colourable glosses and pretences and not to do according to ones wills and private affections. Lord BRIGHTMAN elegantly observed in the case of, Chief Constable of North Sales Police v. Evans, (1982) 3 All ER 141 that: 7 of 12 Judicial review, as the words imply is not an appeal from a decision, but a review of the matter in which the decision was made. The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primodial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains. BENJAMIN CARDOZE in The Nature of Judicial Process. Discretion, in general, is the discernment of what is right and proper. it denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of person. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (Per Lord HALSBURY, L C. in Sharp v. Wakefield. (1891) Appeal Cases 173. The word discretion standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot he arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the Legislature concedes discretion it also imposes a heavy responsibility. (See National Insurance Co. Ltd. v. Keshav Bahadur, AIR 2004 SC 1581, 1584, para 10). The discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual and depends upon constitution., temper, passion. In the best it is often times caprice : in the worst it is every vice, folly, and passion to which human nature is liable, said Lord CAMDEN. L. C.J., in Hindson and Kersey, (1680) 8 How St Tr 57; as cited in National Insurance Corporation Ltd. v. Keshav Bahadur, AIR 2004 SC 1581, 1584, para 11 and Kumaron Mandal Vikas Nigam Ltd. v. Girja Shanker Pant, (2001) 1 SCC 182). 8 of 12 The power to decide within the limits allowed by positive rules of law as to punishments, remedies or costs and generally to regulate matters of procedure and administration; discernment of what is right and proper [See Article 136(1), Constitution) Discretion is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India, AIR 1967 SC 1427, 1434). When any thing is left to any person, Judge or magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law, (Tomlin). In its ordinary meaning, the word signifies unrestrained exercise of choice or will; freedom to act according to ones own judgment; unrestrained exercise of will; the liberty of power of acting without other control than ones own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law. ( 2 Inst. 56, 298; Tomlin) DISCRETION, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glasses and pretences, and not to do according to the will and private affections of persons. The very word discretion standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore discretion cannot be arbitrary but must be a result of judicial thinking. (33 Bom 334 ). The word discretion in itself implies vigilant circumspection and care; therefore where the legislature concedes wide discretion it also imposes a heavy responsibility. (AIR 1933 Sind 49) There may be several degrees of Discretion, discretio generalis, discretio legalis, discretio specialis,- Discretio generalis is required of every one in everything that he is to do, or attempt Legalis discretio, is that which Sir E Coke meaneth and setteth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law. The third discretion is where the laws have given no certain rule .... and herein discretion is the absolute judge of the cause, and gives the rule. (Callis. 112. 113) DISCRETION, FREE AND UNQUALIFIED, The free and unqualified discretion to refuse or grant licences, which is given to justices by the Beer Dealers Retail Licences is absolute as well as regards 9 of 12 the renewal of an old, as the grant of a new, licence. (R. v. Kay, 52 LJMC 90). Discretion, Judicial is a certain latitude or liberty accorded by statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, The use of the word judicial limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious, or exempt from review. But the presence of the word discretion permits the judge to consider as a judge, what are vaguely termed, all the circumstances of the case and the purpose for which he is invested with the considerations of convenience or utility or saving of expense rather than on considerations of strict law or technicalities. Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive rights. The matters which should regulate the exercise of discretion have been stated by eminent judges in somewhat different forms of words but with substantial identity. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet (Lee v. Bude Railway Co., (1871) LR 6 CP 576, 580, WILLES, J.; and see Morgan v. Morgan, 1869, LR 1 P & M 644, 647). That discretion, like other judicial discretions, must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed; but still it is a discretion, and for my own part I think that when a tribunal is invested by Act of Parliament, or by rules, with a discretion, without any indication in the Act or rules of the grounds on which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves on which the discretion would run, for if the Act or rules did not fetter the discretion of the judge, why should the Court do so? Gardner v. Jay, (1885) 29 Ch D 50 at 58, per BOWEN, L.J.) (See also 5 Cal 259) Discretion of Court. Ability to discern by the right line of law, and not by the crooked cord of private opinion, which the vulgar call discretion; freedom to act according to the judgment of the Court, or according to the rules of equity, and the nature of circumstances; judicial discretion regulated according to known rules of law; legal discretion, and not personal discretion sound discretion guided by fixed legal principles". (15) In para 276 of the Delhi Transport Corporation Vs. D.T. C. Mazdoor Congress and others, AIR 1991 Supreme Court 101, the Apex Court has held as follows :- 276................In a system governed by rule of law, dis- cretion, when conferred upon executive authorities, must be confined within defined limits. 10 of 12 The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is............................................... (16) After giving thoughtful consideration to the authorities submitted by learned counsel for the rival parties, the instant matter is a clear cut case of casus omissus which is an application of the principle that a matter which should have been, but has not been provided for in a statute cannot be supplied by Courts, as to do so will be legislation and not construction. But there is no presumption that a casus omissus exists and language permitting the court should avoid creating a casus omissus where there is none. (17) Casus Omissus, literally means case omitted. It is basically a situation not provided for by a statute or contract and therefore governed by caselaw or new-judge made law. When a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or some other cause, a case remains to be provided for, it is said to be a casus omissus. It is a canon of construction, requiring the court to draw up principle of statutory construction, which are then going to be followed by subsequent judges in their judicial decisions. Casus Omissus can be said to be a gap in a statute. The classic rule is that courts will not fill the gap in statutes - their function is jus dicere non facere that is to declare or decide the law. (18) The controversy which has been raised by the petitioner through the instant petition is the similar one which has already been adjudicated by the co-ordinate Bench of this Court while deciding Writ A no. 2129 of 2015 and the same has been upheld in the Intra Court Appeal no. 492 of 2022 and as such there is hardly any difference in the case of the petitioner and in the case of Ashwarya Kumar Saxena (supra). (19) In view of the above consideration of the authorities cited by the learned counsels, it is clear that the impugned order suffers from gross illegality in exercise of the discretion by the respondent no. 4 in arbitrary exercise of his power and as such order dated 29.1.2010 passed by respondent no. 4 is hereby quashed. (20) The respondent no. 4 is directed to grant relaxation of age to the petitioner and grant him post facto appointment on the post of Assistant Teacher BTC grade from the date she was entitled to the same and pay her arrears of salary within six months from today and other benefits of 11 of 12 continuous service from the date of impugned order dated 29.1.2010 passed by respondent no. 4 and also her month to month salary forthwith. (21) In case, the arrears of salary of the petitioner are not paid to the petitioner within six months from today, she would be entitled to 12 percent simple interest on the amount. The Government shall be free to recover the amount of interest from the public servant/servants found responsible for delay in compliance of this order. (22) Writ petition stands allowed. Order Date :- 3.5.2023 Shaswat 12 of 12