HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR [CASE NUMBER] 1. [ENTITY] S/o [ENTITY], Aged About 30 Years, Reserve Police Line, District Banswara, [ENTITY] 2. [ENTITY] S/o [ENTITY], Aged About 30 Years, Q.No. 45, Police Telecommunication Line Campus, Ghat Gate, Distt. Jaipur, [ENTITY] 3. [ENTITY] S/o [ENTITY], Aged About 30 Years, 37, Panchwati Colony, Miya Bajaj Gali, Tonk Road, Sanganer, Distt. Jaipur, [ENTITY] 4. [ENTITY] S/o [ENTITY], Aged About 28 Years, 92, Siyaram Nagar, Near SRS School, Sanganer, Distt. Jaipur, [ENTITY] 5. [ENTITY] S/o [ENTITY] Aged About 32 Years, Village and Post Namner, Tehsil Sikrai, District Dausa, [ENTITY] 6. [ENTITY] S/o [ENTITY], Aged About 29 Years, Village & Post Mansar Khedi, Tehsil Bassi, District Jaipur, [ENTITY] 7. [ENTITY] S/o [ENTITY], Aged About 31 Years, V/P Bagriyawas, Tehsil Srimadhopur, District Sikar, [ENTITY] 8. [ENTITY] S/o [ENTITY] Aged About 32 Years, Q.No. 22, Police Telecommunication Line Campus, Ghat Gate, District Jaipur, [ENTITY] 9. [ENTITY] S/o [ENTITY] Aged About 28 Years, Quarter No. 19, Police Telecommunication Line Campus, Ghat Gate, District Jaipur, [ENTITY] 10. [ENTITY] S/o [ENTITY], Aged About 31 Years, 65, Rana Pratap Nagar, Near Brijbal School, Jhotwara, District Jaipur, [ENTITY] 11. [ENTITY] S/o [ENTITY], Aged About 30 Years, V/P Khandora, Tehsil Bawal, District Rewari, Haryana Petitioners Versus 1. The State of [ENTITY] Through Its Home Secretary Secretariat, [ENTITY], Jaipur 2. The Director General of Police Cum Director, Police Telecommunication, [ENTITY], Jaipur 3. The Secretary, Department of Personnel, Government Secretariat, Jaipur. [ENTITY]. Respondents
(2 of 19) [[CASE NUMBER]] For Petitioner(s) : Mr. [ENTITY] For Respondent(s) : Dr. [ENTITY], Addl. Govt. Counsel HON'BLE MR. JUSTICE [ENTITY] / Order 03/05/2017 The Co-ordinate Bench on 03.01.2017 had passed following order :-
"Joint petition has been filed by 11 prospective candidates who are intending to participate in the selection process which was initiated by the respondents holding selections for the post of SI (Wireless) & ASI (Technical) by a common advertisement dt.03.11.2016.
Indisputably, as per the petitioners' own contention all the 11 petitioners have crossed the upper age limit and are not eligible to participate and their grievance is that the last advertisement for the post of ASI (Technical) was published in 1997 & SI (Wireless) in 2007 and since for a sufficient long time the vacancies were not advertised by the respondents, their fair right of consideration has been jeopardized and they need indulgence of this court to be considered for grant of relaxation by the appointing authority in age, as being provided u/[SECTION] of the [ENTITY] Police Subordinate Service Rules, 1989.
Counsel has placed reliance on certain orders of this court where the appointing authorities are directed to consider the case of the candidates who are intending to participate in the selection (3 of 3) [[CASE NUMBER]] process to approach the appointing authority for grant of relaxation, as prayed for.
Before this court proceeds further in the matter to direct the respondents to consider the grievance of the petitioner for grant of relaxation, as prayed for provided under the scheme of Rules, 1989, it will be appropriate for the petitioners to place on record the complete service particulars of the individual petitioner as to when he acquired the eligibility to participate in the selection process and how far his complaint deserves indulgence on account the delay in initiating the process of selection.
Let the affidavit be filed giving details of all the 11 petitioner with advance copy to the respondent's counsel, who may examine the same and also file response. As regards their off- line application is concerned, that can always be considered by the court protecting their rights by passing suitable orders.
Counsel submits that he may file the affidavit within three days. Let the respondent's counsel may also file reply, pursuant thereto within a week thereafter.
(3 of 19) [[CASE NUMBER]] List the matter on 18.01.2017, as prayed."
An application, bearing Inward No.23605/2017 has been filed by the petitioners praying therein that the present writ petition may be disposed of, in terms of the judgment rendered by this Court in the bunch of writ petitions, lead case being [ENTITY] & Others Vs. Secretary, [ENTITY] Subordinate & Ministerial Services Selection Board & Another, (S.B. Civil Writ Petition No.14934/2016), decided on 09.11.2016.
All the writ petitioners herein have become overage and are not eligible to apply, as per advertisement issued by the respondents.
This Court in the case of [ENTITY] & Others (supra), relying upon various judgments of the Division Bench held that the Court cannot issue direction that an overage candidate be treated as eligible.
It will be apposite here to reproduce following portion from the judgment rendered by this Court in the case of [ENTITY] & Others (supra) :-
"The controversy raised in the present petitions is not new to this Court. The State Government as a matter of practice, have not made recruitment every year by determining the vacancies, thus, the candidates who became overage, have been approaching this Court from time to time as and when advertisements were issued for the recruitment for various posts.
The learned counsel for the parties have pressed into service the judgment rendered by the Division Bench of this Court in the case of [ENTITY] etc vs. State of [ENTITY] & anr., RLR 1990 (2) 1.
A perusal of the judgment rendered in the case of [ENTITY] (supra), reveals that for the post of Constable, candidature of number of persons was not considered on the ground that they have become overage. In [ENTITY]'s case (supra), the Division Bench of this Court noticed [SECTION] of the [ENTITY] Police Subordinate Service Rules, 1974 as it existed on 22.12.1981. The rule called upon appointing authority to determine every year, number of existing vacancies and anticipate qua next twelve months vacancies which may accrue and are required to be filled.
Having noted the rules in [ENTITY]'s case (supra) the Bench formulated the question as under:-
"20. Now once we have found that there is an (4 of 19) [[CASE NUMBER]] obligation to determine the vacancies for direct recruitment as well as for promotion every year, the question arises as to what should happen to the candidates who were eligible in a particular year for direct recruitment but did not have an opportunity of consideration because of the failure on the part of the competent authority either to determine the vacancies or to make selection in a particular year. (Emphasis Supplied) As far as promotion quota is concerned, this problem is resolved by [SECTION] of 1974 Rules and [SECTION] of 1989 Rules. However, problem is for the persons, who are aspirants for direct recruitment, with reference to the question of age limit. As we have noticed earlier, the upper age limit for recruitment to the posts of constable was 25 years in 1974 Rules and the same has been reduced to 21 years in 1989 Rules. The petitioner and other large number of persons who were eligible within the age limit of 25 years have all been rendered ineligible because the first advertisement dated 21.12.1988 was not acted upon. If the respondents had made selection in pursuance to that advertisement, the question of their being debarred on the ground of over age would not have arisen. "
Having formulated the question, the Bench came to the conclusion that the candidates who were eligible in a particular year, and have been rendered ineligible in the subsequent years, are to be treated as eligible to appear in the examination irrespective of age requirement in case no examination has been held in a particular year in which they were eligible.
After noticing the rules in [ENTITY]'s case (supra), the Division Bench of this Court noted the legal position as under:-
"24. The Supreme Court had in [PRECEDENT] clearly laid down that eligibility with reference to particular vacancies must be judged with reference to the year in which the vacancies occur or the year to which the vacancies relate. A subsequent amendment in the Rules cannot take away the right of a person who is eligible against the vacancies created prior to such amendment. It would be appropriate to quote the following observations of the Hon'ble Supreme Court from the said decision:
"The Tribunal on consideration of the materials on record came to the conclusion that the vacancies that arose between the preparation of the panels in December, 75 and April, 77 were eight, and that there was no reason why panel for that period should not have been drawn up at all. It is true that after October 18, 1975 the zones came into existence and, therefore, promotions to the grade of Sub-Registrar were required to be made on zonal basis, but after the personnel had been allocated to various zones, the task of preparing the annual panel with reference to the vacancies arising during the period 1976-77 should have been taken up on the basis of the seniority list for Zone IV. Had such a list been prepared according to [ACT], the eligibility of the candidates would naturally have been considered without reference to the amendment issued in March, 1977. On these findings the Tribunal held that (5 of 19) [[CASE NUMBER]] the action taken by the Inspector General of Registration and Stamps to make appointments against vacancies arising during the period 1976-77 from amongst the 'left-overs' of the panels drawn up in April, 1975 and to dispense with the preparation of panel for 1976-77 was in violation of the rules and thus liable to be set aside, and it directed the State of Andhra Pradesh and the Inspector General of Registration and Stamps to draw up a fresh panel for the year 1976-77 with reference to the vacancies that arose during that period, strictly in accordance with the rules as they existed at the time, and the vacancies pertaining to that period should be filled on the basis of such a panel.
The Supreme Court further observed:
"The vacancies which occurred, prior to the amended rules would be governed by the old rules and not by he amended rules But the question is of filling. The vacancies that occurred prior to the Amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.
25. This has been reiterated in (4) [PRECEDENT]. In that case [ACT] prescribed a diploma in Mechanical Engineering for appointment as Motor Vehicle Inspectors. In 1983, the Karnataka Public Service Commission invited applications for the said post from the holders of said post in Automobile Engineers. After the date of interviews had been fixed, some stay was granted by the High Court and the interviews could be completed in July 1987. In the meanwhile the Recruitment Rules were amended in May, 1987 and the diploma in Mechanical Engineering were excluded from eligibility. Karnataka Tribunal quashed the select list on the ground that subsequent to 1987 amendment, the selection could not be made on the basis of pre-eligibility criteria. While reversing the judgment of the Tribunal, the Supreme Court observed as under:
"There is no dispute that under the Recruitment Rules as well as under the advertisement dated October 6, 1983 issued by the Public Service Commission, holders of Diploma in Mechanical Engineering were eligible for appointment to the post of Motor Vehicle Inspectors along with holders of Diploma in Automobile Engineering. On receipt of applications from the candidates, the Commission commenced the process of selection as it scrutinized the applications and issued letters for interviews to the respective candidates. In fact the Commission commenced the interviews on August 1985 and it had almost completed the process of selection but the selection could not be completed on account of interim orders issued by the High Court at the instance of candidates seeking reservation for local candidates. The Commission completed the interviews of all the Candidates and it finalized the list of selected candidates by June 2, 1987 and the result was published in the State Gazette on 23rd July 1987. In addition to that, (6 of 19) [[CASE NUMBER]] the selected candidates were intimated by the commission by separate letters. In view of these facts, the sole question for consideration is as to whether the amendment made in the Rules on May 14, 1987 rendered the selection illegal. Admittedly, the amending Rule do not contain any provision enforcing, the amended Rule with retrospective effect. In the absence of any express provision contained in the amending rules, it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impare the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. In fact the entire selection in the normal course would have been finalized much before the amendment of rules, but for the interim orders of the High Courts. If there had been no interim orders, the selected candidates would have been appointed much before the amendment of Rules. Since the process of selection had commenced and it could. Not be completed on account of the interim orders of the High Court, the appellants' right to selection and appointment could not be defeated by subsequent amendment of Rules.
26. In (5) [PRECEDENT] their Lordships of the Supreme Court have held that the amendment do not apply to the vacancies which had arisen prior to the date of amendment.
27. Some what similar view has been taken by the [ENTITY] High Court in (Rama Shanker Asopa v. State of [ENTITY] D.B. Civil writ Petition No. 1359/88) decided on 18.1.1989. In that case, the [ENTITY] Public Service Commission had advertised vacancies of Junior Specialists in the month of May/June, 1987. The petitioner had applied for selection in pursuance to the said advertisement. However, interviews could not be held on account of some stay order of the High Court. In the meanwhile, [ENTITY] Medical & Heath Service Rules, 1963 were amended vide Gazette Notification dated 7.1.1988 and under the amended Rules, all the posts of Junior Specialists were converted into that of Senior Medical Officers and they were to be filled in 100% by promotion. The Government, thereafter directed the Commissions to withdraw the advertisement and on that basis, the petitioners who were holding the post of Junior Specialists and were eligible to be selected by direct recruitment were sought to be reverted. In striking down the reversion order and the action of the Government in withdrawing the requisition, this Court proceeded to observe as under:
"In the instant case before this court, amendment in the [ENTITY] Medical and Health Service Rules, 1963 was published in the [ENTITY] Gazette dated 7.1.1988 and the vacancies were determined on 1st April of every year. Hence, the vacancies which were determined up to 1.4.1987 should be filled in in accordance with the old rules existing at that time prior to amendment, meaning thereby that the vacancies for the years 1985-86 and 1986- 87 as also 1987-88 have to be filled in in accordance with old un-amended rules, both from the direct recruitment as well as promotion (7 of 19) [[CASE NUMBER]] quota and the variances relating to the year 1988-89 or onwards, will be governed by the amended Rule. Government should determine the vacancies year wise for the year 1985-86, 1986-87 and 1987-88 and fill them up as per the old rules. In the present cases, for the vacancies relating to the year 1985-86 and 1986-87 a requisition had already been sent by the State Government to the [ENTITY] Public Service Commission in the month of January, 1987, on the basis of which the R.P.S.C. had issued an advertisement No. 2/87-88 (Annx.6) and applications had been invited and even interviews letters had been issued but after the amendment of rules, the requisition had been withdrawn on 18.5.1988. The Government is directed to request the R.P.S.C. to go ahead with the selection as per the earlier requisition sent in the month of Jan., 1987."
The Bench answered the question formulated as under:-
"28. We are, therefore, of the considered opinion that as in the case of promotion quota, vacancies in direct recruitment quota must also be determined, on yearly basis. We are also, of the opinion that once direct recruitment vacancies are advertised, the process of selection must be completed on the basis of the Rules, which are in existence at the time of advertisement. Any amendment made subsequently shall not affect the eligibility of the candidates. So far as the age requirement is concerned, the eligibility of the candidates must be adjudged with reference to the year to which the vacancies relate and the candidates cannot be made to suffer merely because of non determination of vacancies or failure of the competent authority to issue advertisement."
The State Government in order to overcome the mandate laid in case of [ENTITY]'s case (supra), issued Notification on 25.6.2004, called 'The [ENTITY] Subordinate Services (Amendment) Rules, 2004' and held that the rules will come into operation w.e.f. 24.5.2004. The amended rule stated, where vacancies for Class-III and Class-IV have not been filled, two years relaxation in age shall be granted.
Probably thinking that due to judgment rendered in [ENTITY]'s case (supra), the persons who are near fag end of their career will obtain entry into State Service, on 23.9.2008, the Government of [ENTITY] again issued Notification and amended rules pertaining to recruitment in various services. The Notification issued on 23.9.2008 reads as under:-
"NOTIFICATION In exercise of the powers conferred by the proviso to [SECTION] of the [ACT], the Governor of [ENTITY] hereby makes the following rules further to amend the Various Service Rules as specified in the Schedule appended herewith, namely:-
1. Short title and commencement.- (i) These rules may be called the [ENTITY] Various Service (Fifth Amendment), Rules, 2008.
(ii) They shall come into force with immediate effect.
2. Amendment. (i) The existing proviso to rule as mentioned in Column No.3 against each of the Service Rules as mentioned in Column No.2 of the Schedule appended herewith, shall be substituted by the following, namely:-
(8 of 19) [[CASE NUMBER]] "If a candidate would have been entitled in respect of his/her age for direct recruitment in any year in which no such recruitment was held, he/she shall be deemed to be eligible in the next following recruitment, if he/she is not overage by more than 3 years."
(ii) The existing rule as mentioned in Column No.4 against each of the Service Rules as mentioned in Column No.2 of Schedule appended herewith, shall be substituted by the following, namely:-
"Frequency of Examination,-The competitive examination for recruitment to the posts specified in the Schedule shall be held at least once a year unless the Government decides that a competitive examination for any of these posts shall not be held in any particular year."
The Selection Board who has been impleaded as the respondent no.2 in all the writ petitions, have filed reply to the two writ petitions, bearing [CASE NUMBER] Ganpat Lal & Ors. vs. The State of [ENTITY] & Ors., and [CASE NUMBER] Madan Lal Jat vs. The State of [ENTITY] & Ors. Mr. [ENTITY], the Government Counsel appearing for the State has prayed that the reply filed by the Selection Board be accepted as reply on behalf of the State of [ENTITY]. A further request has been made that the reply on behalf of the respondent no.2 in case of [CASE NUMBER] and [CASE NUMBER] be considered as reply of the respondents in respect of remaining writ petitions.
Since the controversy raised is in narrow compass, the learned counsel for the parties without filing rejoinder have prayed that the arguments be heard and writ petitions be decided as competitive examination is scheduled to be held in the near future.
The learned counsel for the petitioners have urged that since the Notification dated 23.9.2008 directed various departments of the State of [ENTITY] to determine and specify the vacancies qua each year, and since the exercise to this effect was not carried by the State of [ENTITY], taking ratio of law laid in the case of [ENTITY]'s case (supra), petitioners be held eligible and be permitted to appear in the competitive examination.
It is time to notice case law to answer the question poised before this Court.
A Single Judge of this Court in the case of [ENTITY] & Ors vs. State of [ENTITY] & Anr., 2012(1) WLC (Raj.) 301, in respect of the recruitment of Agriculture Officer and Assistant Agriculture Officer where advertisement was issued after eleven years, even though, the vacancies existed, came to conclusion that the age of the candidate cannot be relaxed by the court but to do the same is the sole prerogative of the State Government. The learned Single in case of [ENTITY] (supra) held as under:-
"13. Per contra, learned counsel for respondents submits that advertisement was issued on 5.7.2008 giving out last date of submission of application as 20.8.2008 thus one was required to be within age limit as notified in the advertisement. The petitioners are those who applied for the post knowing it well that they have already crossed the age limit provided under the Rules. If the prayer is accepted then it would result in discrimination as many candidates did not apply for the post in adherence to the Rules treating themselves to be overage. Hence, acceptance of the writ petitions would be to the benefit of those who have not adhered to the Rules.
14. Coming to the notification dated 23.9.2008, it is submitted that it is prospective in nature and cannot have application for the advertisement issued in the month of July having last date to submit application by 20.8.2008 i.e. much prior to the notification amending the Rules. One cannot apply and plead (9 of 19) [[CASE NUMBER]] for the benefit of age relaxation anticipating some amendment in the Rules at a later stage. The notification dated 23.9.2008 has no application in the present recruitment even if the age is to be reckoned as on 1.1.2009. The aforesaid issue has already been decided by the Division Bench of this court in the case of "[ENTITY] v. State of [ENTITY] & anr."
reported in 2001 (2) RLR 168 and Single Bench judgment has otherwise been reported in [PRECEDENT]. The present matter is squarely covered by the judgment in the case of [ENTITY] (supra).
15.Now comes the issue as to whether one is entitled to be treated within age if recruitment has not taken place every year, rather if there is a delay of years together. It is submitted that after judgment of the Division Bench of this court in the case of [ENTITY] (supra) when the co- ordinate Bench took the same view, one of the judgments was challenged before the Apex Court by the [ENTITY] Public Service Commission and, therein, the view was not approved. It was held that delay in holding recruitment will not entitle a candidate to get benefit of age. The controversy has been settled therein with authoritative pronouncement.
16. Same view was taken by this court in the case of "Dr Pushpa Gupta v. State of [ENTITY] & Ors." reported in : RLR 2002 (2) 733." In the case of "[PRECEDENT] it was held that relaxation of age can be granted by the Government and not by the court.
17. Reliance has further been made on the judgment in the case of "Mahesh Kumar v. The State of [ENTITY] & Ors." reported in : 1998(2) WLC ([ENTITY]) 666". The issue of grant of age relaxation further came up for consideration in the case of "Dr Ami Lal Bhat v. State of [ENTITY] & Ors." reported in : [PRECEDENT], wherein, relaxation in age limit was not allowed on wholesome (sic. wholesale) basis but allowed only when public interest element is existing.
18. The Division Bench of this court in the case of "Smt [ENTITY] v. RPSC & anr., [CASE NUMBER], decided the same controversy vide its judgment dated 24th January, 2008. Therein, the court considered earlier judgment in the case of [ENTITY] but considering the judgment of the Apex Court in the case of "RPSC v. Smt [ENTITY], Civil Appeal No. 52/93, decided on 8.2.1995, held that delay in recruitment by not determining the post every year would not entitle a candidate to get benefit in age bar. The appeal was accordingly dismissed.
19. I have considered rival submissions of learned counsel for parties and scanned the matter carefully besides perusing the judgments cited at the Bar.
20. The facts not in dispute are that last recruitment to the post in reference was held in the year 1996 and, thereupon, advertisement has now been issued in the year 2008 thus for intervening period of 11 years, no recruitment was held by the respondents.
21. First question for consideration of this court is as to whether those who were within the age limit during the intervening period of 11 years should be granted benefit in age limit, taking note of the year corresponding to the vacancy.
22. This court in the case of [ENTITY] and Dr. [ENTITY] (supra) held that a candidate would be entitled to be treated within age if the recruitment did not take place in previous years when the candidate was within age.
23. The Apex Court in the case of Smt [ENTITY] (supra) (10 of 19) [[CASE NUMBER]] took a view otherwise than what has been taken by this court. In the case of Smt [ENTITY] (supra) the Apex Court even noticed the reason for treating a candidate to be within age as recorded by the Division Bench of this court, but reversed it. Following para of the judgment in the case of Smt [ENTITY] is quoted for reference thus -
It was not disputed before the High Court that prior to 1988, recruitment to the cadre of Assistant Teachers was made only in the year 1983. Recruitment to the said cadre is by way of direct recruitment and also by promotion. During the period 1983-89 promotions were being made to the cadre, but not direct recruitment was made. The contention raised by the respondent before the High Court was that it was mandatory for the [ENTITY] Government to have filled the quota of direct recruits during all those years. It was further contended that had the posts meant for direct recruitment been advertised during the year 1983-89, the respondent could have applied and may have been selected. She contended that at that point of time, she could not be rejected on the ground of over-age. The High Court accepted the contentions on the following reasoning:
" The last advertisement was issued in the year 1983 and this advertisement has been issued in the year 1989 that is after a lapse of about six years and the petitioner has completed her age of 40 years in the year 1986. It has been held in this authority that if year-wise vacancies are not determined and if the advertisements are issued to fill up the vacancies of six years by the one advertisement, then the person's candidature cannot be rejected on that account "
The competent authority cannot avoid this responsibility by sheer inaction or omission and failure on the part of the competent authority cannot be used as a basis for denying eligibility to those who are eligible in a particular year but become ineligible on account of absence of determination of the vacancies
She could have been denied right of a consideration only if there existed no vacancies till the time she has attained the age of 40 years. If vacancies were existing, she had a right of consideration and consequently the petitioner who has been allowed to appear in the interview under the orders of the Court, her result of the interview be declared and if she is found suitable for appointment on the basis of the merit that has been assigned to her by the Public Service Commission, she be afforded appointment as a Senior Teacher, which has now been designated as Lecturer in Secondary/Senior Secondary Section). The result be declared within a period of three weeks from today and if she is entitled to be appointed then appointment be accorded to her within 3 months from today."
We are of the view that the High Court fell into (11 of 19) [[CASE NUMBER]] patent error bordering on perversity in issuing the mandamus on the reasoning quoted above. It is settled proposition of law that the eligibility of a candidate has to be determined on the basis of the terms and conditions of the advertisement in response to which the candidate applies. There is nothing on the record to show that the State Government was in any manner negligent or at fault in not making the direct recruitment during the period 1983-89. Be that as it may, the High Court was not justified in taking the clock back to the period when unfilled vacancies were existing and holding that since the respondent was eligible on the date when vacancies fell vacant, she continues to be so till the time the vacancies are filled. Due to inaction on the part of the State Government in not filling the posts year-wise, the respondent cannot get a right to participate in the selection despite being over-aged.
We, therefore, allow the appeal and set aside the judgment of the High Court and dismiss the writ petition filed by the respondent. No costs.
24. Same view was taken by the Division Bench of this court in the case of Smt [ENTITY] (supra), wherein, even the judgment in the case of [ENTITY] (supra) was considered and, in the light of the judgment of the Apex Court in the case of Smt [ENTITY] (supra), detailed judgment was rendered. Para 5, 6 and 7 of the said judgment is quoted for ready reference thus -
5. The direct recruitment to the posts of Lecturer in Hindi, admittedly, is being made under [ENTITY] Educational Service Rules, 1970 (for short 'the Rules of 1970'). The counsel for the appellant did not dispute that the Rules of 1970 do not have a provision that the candidates who were eligible in a particular year but were rendered in-eligible in the subsequent years, they were to be treated as eligible to appear in the examination irrespective of age requirement in case no examination was held in the particular year in which they were eligible. We are afraid, for want of any provision in the Rules of 1970, the decision of the Division Bench in the case of [ENTITY] cannot be applied to the present fact situation.
6. We may now refer to the judgment of the Supreme Court in the case of [ENTITY]. That was a case where [ENTITY] applied for the post of Senior Teacher in the year 1989 pursuant to the advertisement. At that time she had already crossed the age of 40. She appeared in the preliminary examination conducted by the [ENTITY] Public Service Commission (for short, "Commission") but at the time of viva-voce she was told that she was not eligible being over-age and her candidature was cancelled. Upon challenge of the cancellation of her candidature before this court, the Division Bench held that the last advertisement was issued in the year 1983 and thereafter the advertisement was issued in the year 1989 i.e. after a lapse of about 6 years. If year-wise (12 of 19) [[CASE NUMBER]] vacancies were not determined and if the advertisement was issued to fill the vacancies of six years by one advertisement, then the person's candidature cannot be rejected on that ground. The Division Bench held that competent authority cannot avoid the responsibility by sheer inaction or omission and failure on the part of the competent authority cannot be used as a basis for denying eligibility to those who were eligible in a particular year but became in- eligible on account of absence of determination of vacancies. The consideration of the matter by the Division Bench was held by the Supreme Court bordering on perversity.
The Supreme Court held thus:
"It is settled proposition of law that the eligibility of a candidate has to be determined on the basis of the terms and conditions of the advertisement in response to which the candidate applies. There is nothing on the record to show that the State Government was in any manner negligent or at fault in not making the direct recruitment during the period 1983-89. Be that as it may, the High Court was not justified in taking the clock back to the period when unfilled vacancies were existing and holding that since the respondent was eligible on the date when vacancies fell vacant, she continues to be so till the time the vacancies are filled. Due to inaction on the part of the State Government in not filling the posts year-wise, the respondent cannot get a right to participate in the selection despite being over-aged.
7. In the light of the authoritative pronouncement of the Supreme Court as afore noticed, we find no merit in the contentions of the counsel for the appellant. The appellant is not entitled to age relaxation as claimed by her."
The learned Single of this court further held that since the court cannot make overage candidates eligible, the candidates who have become overage can approach the State Government praying that the rule prescribing age be relaxed qua them. The learned Single Judge held as under:-
"29. In the light of the judgment referred to aforesaid, contention of learned counsel for petitioners to treat them within age on the analogy that notification for age relaxation of three years was issued prior to the relevant date for determination of age. In fact, a prudent candidate may not have applied pursuant to the advertisement treating himself to be overage as nobody can expect that subsequent to the last date of submission of application forms, a notification would be issued granting relaxation in age thus acceptance of the plea of the petitioner, would result in discrimination as held by the Division Bench of this court in the case of [ENTITY] (supra).
30. In view of the aforesaid, even second contention raised by learned counsel for petitioners cannot be accepted.
31. The issue now remains is as to whether petitioners can seek benefit of age relaxation from the State Government as it has power to relax the rules.
(13 of 19) [[CASE NUMBER]]
32. I have considered the matter and find that the State Government is having power to relax the rules in appropriate cases, thereby petitioners can make a representation to the State Government to extent benefit of age relaxation after making out a case, if such representation has not already been made by the petitioners.
33. It cannot be ignored that the recruitment in the present matter has taken place after 11 years and, during the intervening period, vacancies took place thus those who were within age limit corresponding to the year of vacancy have now become ineligible on account of delay in recruitment.
34. Looking to the aforesaid and other relevant factors, the matter may be considered by the government for relaxation in age. While considering representation of the petitioners, State Government may also keep in mind that they should try to get meritorious candidates so that they may get best talented persons in service.
35. Petitioners have already passed out the selection, though appeared therein pursuant to the interim order of this court. In the case of Abhishek Sharma & Ors. v. State of [ENTITY] & anr., DB Special Appeal (Writ) No. 731/2007, decided on 22.5.2007, this court issued similar directions to the Government for consideration of representation keeping in mind hardship of the appellant therein. That was also for grant of age relaxation under [SECTION] applicable thereunder. This is more so when power to relax the age does not lie with the court but lies with the government only as held by the Apex Court in the case of "[PRECEDENT].
36. Similarly, the Apex Court in the case of "[PRECEDENT] also held that powers to relax the rules can be exercised by the government taking into consideration hardship of the candidates, after recording reasons."
This issue also came for consideration before a Division Bench of this Court at Principal Seat at Jodhpur and the learned Division Bench of this Court in the case of [ENTITY] vs. The State of [ENTITY] & Ors., 2012 (3) ILR (Raj.) 522, held as under:-
"18. In view of the law laid down by the Hon'ble Apex Court in [ENTITY] and [ENTITY], the decision in [ENTITY]'s case (supra) as rendered by a Division Bench of this Court is of no help to the appellant.
19. The submission as made by the learned counsel for the appellant that limiting the age relaxation only upto 3 years operates contrary to the provisions of the Rules does not carry force. The aspects of yearly determination of vacancy and even yearly holding of recruitment do not ipso facto lead to the position that every person within the age limit as on the date of occurrence of the vacancy or determination of vacancy ought to be treated within the age irrespective of the other provisions of the Rules and irrespective of the time of recruitment.
20. In the ultimate analysis, age relaxation for the direct recruitment, if to be granted, would be a matter for the Government to prescribe in the relevant Rules; and beyond what has been prescribed, cannot be claimed as a matter of right. It appears that in order to mitigate against the hardship likely to be faced by the prospective candidates but at the same time maintaining the balance of the requirements of services, the Government has provided age relaxation upto 3 years by way of notifications of amendment as issued on 23.09.2008. Taking for example the recruitment in question, (14 of 19) [[CASE NUMBER]] the maximum age limit as prescribed in the Rules is 35 years and it gets extended to 38 years with the relaxation provided. If at all the factor of not holding of recruitment for 13 years is taken into consideration and the relaxation for all the years of not holding recruitment is provided as suggested, it would be something like allowing a person even at about 48 years of age to enter into the service as an LDC. The Government, in its wisdom, if has chosen to restrict the relaxation to 3 years beyond the age as prescribed, it cannot be said that anything unreasonable or irrational has been provided.
21. We need not dilate further on the aforesaid aspect in the present case as the validity of Rules was not in challenge in the writ petition filed by the petitioner. In the existing scheme of Rules, the petitioner was not entitled to the relief as claimed; and hence, the learned Single Judge cannot be faulted in dismissing the writ petition.
22. So far the other submission made by the learned counsel for the appellant regarding relaxation in case of hardship per [SECTION] of the Rules of 1999 is concerned, such an aspect does not appear having been placed for consideration before the learned Single Judge. However, in the interest of justice, it does appear appropriate to observe in this regard that if at all the petitioner-appellant makes, within two weeks from today, specific representation for consideration of his case on the anvil of [SECTION] and other co-related rules applicable to the case for relaxation in regard to the age, the same may be considered by the respondents in accordance with law; and for that matter, any observations made in this order shall not be of an impediment in independent and objective consideration of such representation. Subject to the observations and the requirements foregoing, this appeal fails and is, therefore, dismissed. No costs."
Another Division Bench of this Court at Jaipur Bench in the case of [ENTITY] & Ors. vs. State of [ENTITY] & Ors., Manu/RH/1472/2015, held as under:-
"3. We have examined the judgment in [ENTITY] v. The State of [ENTITY] & Ors.: (2013 Lab IC 1039 (Raj (supra), and did not find any such ground, which may require reconsideration by the Court of the judgment, or any such ground has been raised, which may require a reference to a Larger Bench.
4. The coordinate Bench had upheld the proviso on the ground that the age relaxation of 3 years for number of years, can be given for the selections, which were held, despite the provision for determining vacancies, and holding selections for the vacancies every year, and that 3 years relaxation, for that purpose, was sufficient, and does not amount to any arbitrariness or unreasonableness.
5. If the State Government was of the opinion that 3 years relaxation would be sufficient, and that any further relaxation will amount to entry of the persons on advance age in service, no error can be found in the decision taken by the State Government. We find that though the validity of the Rule was not challenged in the judgment in [ENTITY]'s case (2013 Lab IC 1039 (Raj (supra), the reasons given by the coordinate Bench would be valid, even in the challenge of the validity of the Rule. The reasons, for which proviso was added, were examined by the coordinate Bench, and the same reasons were valid for repelling the challenge to the proviso.
The Writ Petition is covered by the judgment in [ENTITY] v. The State of [ENTITY] & Ors. (2013 Lab IC 1039 (Raj (supra), and is accordingly dismissed."
(15 of 19) [[CASE NUMBER]] Another Division Bench of this court in [ENTITY] Public Service Commission vs. Mahendra Kumar, Manu/RH/1230/2014, upholding the validity of amended rules and relying upon [ENTITY]'s case (supra) held as under:-
"15. In [ENTITY] v. State of [ENTITY] & Ors. : 2013 Lab IC 1039 (Raj (supra), the Co-ordinate Bench of this Court, while relying on the decision of Hon'ble Supreme Court rendered in RPSC v. Smt. [ENTITY] (supra) and in [ENTITY] & Anr. v. U.P Public Service Commission & Ors., : (2006) 9 SCC 507, has refused to grant the benefit of age relaxation to the appellants therein beyond the period as provided in the concerned rules and has held as under :
"In the ultimate analysis, age relaxation for the direct recruitment, if to be granted, would be a matter for the Government to prescribe in the relevant rules; and beyond what has been prescribed, cannot be claimed as a matter of right. It appears that in order to mitigate against the hardship likely to be faced by the prospective candidates but at the same time maintaining the balance of the requirements of services, the Government has provided age relaxation upto 3 years by way of notifications of amendment as issued on 23.09.2008. Taking for example the recruitment in question, the maximum age limit as prescribed in the Rules is 35 years and it gets extended to 38 years with the relaxation provided. If at all the factor of not holding of recruitment for 13 years is taken into consideration and the relaxation for all the years of not holding recruitment is provided as suggested, it would be something like allowing a person even at about 48 years of age to enter into the service as an LDC. The Government, in its wisdom, if has chosen to restrict the relaxation to 3 years beyond the age as prescribed, it cannot be said that anything unreasonable or irrational has been provided."
16. It appears that the law laid down by the Co-ordinate Bench in [ENTITY]'s case: 2013 Lab IC 1039 (Raj (supra) has not been applied in correct perspective in the impugned order.
17. In the case in hand, the State Government, in its wisdom, has not provided benefit of age relaxation in the Rules of 1989 looking to the requirement of service in the police department, then it is not open to question the said decision of the State Government by claiming parity with other service rules or with other categories of service.
18. The learned counsel for the appellant is right in arguing that no parity can be claimed by one category of service with other category of service and it is within the domain of the employer concerned that in which category of service, the benefit of age relaxation is to be provided. The benefit of age relaxation cannot be claimed as a matter of right and, therefore, the claim of the respondent-petitioner for age relaxation in the maximum age limit while claiming parity with other categories of service is not based on sound proposition of law and, therefore, is liable to be rejected.
19. Consequently, the appeal preferred on behalf of the appellant- RPSC is allowed. The impugned order dated 26.08.2013 passed by the learned single Judge in [CASE NUMBER] is hereby set aside and the writ petition filed by the respondent-petitioner is dismissed. Stay petition stands (16 of 19) [[CASE NUMBER]] disposed of."
The similar view was also reiterated by another Division Bench at Principal Seat at Jodhpur in the case of [ENTITY] vs. High Court of Judicature for [ENTITY], Manu/RH/0349/2013, and it was held as under:-
"6. As regards the claim for age relaxation too, it remains trite that relaxation can be claimed only if, and to the extent, permissible under the Rules. In the case of [ENTITY] Vs. The State of [ENTITY] & Ors.: SAW No. 383/2012, decided on 17.08.2012, this Court took note of the law laid down by the Hon'ble Apex Court in the cases of [ENTITY] & Anr. Vs. U.P. Public Service Commission & Ors.
(2006) 9 SCC 507; and [ENTITY] Public Service Commission Vs. Smt. [ENTITY] & Ors.: Civil Appeal No. 52/1993, decided on 08.02.1995 as under:-
In [ENTITY]'s case (supra) even when emphasizing on the requirement of timely determination of the vacancies and timely appointments in relation to the U.P. Judicial Services, so far the age requirement was concerned, the Hon'ble Supreme Court held as under: -
17. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1st July, 2001 and 1st July, 2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof.
Therefore, the answer to the question would turn upon the interpretation of the Rules. (Emphasis Supplied) Moreover, in [ENTITY]'s case (supra), even while noticing that the recruitments were not held during the years 1983 to 1989, the Hon'ble Supreme Court said,-
Be that as it may, the High Court was not justified in taking the clock back to the period when unfilled vacancies were existing and holding that since the respondent was eligible on the date when vacancies fell vacant, she continued to be so till the time the vacancies are filled. Due to inaction on the part of the State Government in not filling the posts year- wise, the respondent cannot get a right to participate in the selection despite being over-aged. (Emphasis supplied)
7. It was found in the aforesaid case of [ENTITY] that relaxation in age for direct recruitment would be a matter for the Government to prescribe in the relevant rules; and, beyond what had been prescribed, cannot be claimed as a matter of right. In [ENTITY]'s case, the claim for providing age-relaxation of 13 years was found beyond the relevant rules and, this Court, inter alia, observed as under:-
In the ultimate analysis, age relaxation for the (17 of 19) [[CASE NUMBER]] direct recruitment, if to be granted, would be a matter for the Government to prescribe in the relevant Rules; and beyond what has been prescribed, cannot be claimed as a matter of right
8. In view of the above, the claim for age relaxation as made by the petitioner could only be rejected. In the result, this writ petition fails and is, therefore, dismissed."
Similar view was also reiterated by another Division Bench of this court in [ENTITY] vs. State of [ENTITY], Manu/RH/1238/2014.
In view of settled legal position, which has been propounded by the learned Single Judge in the case of [ENTITY] (supra) and various Division Bench of this Court in the cases of [ENTITY] (supra), [ENTITY] (supra), [ENTITY] Public Service Commission vs. Mahendra Kumar (supra), [ENTITY] (supra) and [ENTITY] (supra), this Court has no hesitation to hold that this Court cannot pronounce overage candidates as eligible. Hence, this Court cannot come to rescue of the petitioners.
Having held that this Court cannot relax the age prescribed, this Court cannot ignore [SECTION] of the [ENTITY] Police Subordinate Service Rules, 1989 (herein after to be called as Rules of 1989).
[SECTION] of the Rules of 1989 reads as under :-
"Power to Relax Rules. - In exceptional cases, where the Administrative Department of the Government is satisfied that operation of the rules relating to age or regarding requirement of experience of recruitment causes undue hardship in any particular case or where the Government is of the opinion that it is necessary or expedient to relax any of the provisions of these rules, with respect to age or experience of any person it may with the concurrence of the Department of Personnel and Administrative Reforms and in consultation with the Commission, by orders dispense with or relax the relevant provisions of these rules to such extent and subject to such condition as it may consider necessary for dealing with the case in a just and equitable manner, provided that such relaxation shall not be less favorable than the provisions already contained in these rules. Such cases of relaxation shall be referred to the [ENTITY] Public Service Commission by the Administrative Department."
The respondent has specifically admitted that the Government has power to relax the rules and therefore, considering the exceptional circumstances and hardship faced by the candidate that the (18 of 19) [[CASE NUMBER]] posts were not advertised for a long period, petitioners/candidates can be relegated to approach the State Government to relax the rules in their favour, which prescribe maximum age. Prayer to relax the rule to make overage candidate/petitioners eligible can be made to State Government upon making a representation.
A Division Bench of this Court in [ENTITY]'s case (supra) had also permitted the petitioners therein to approach the State Government for relaxation of the rules. Similar liberty was also granted by the learned Single Judge in the case of [ENTITY] (supra). Therefore, in the interest of justice, each petitioner is granted liberty to make representation to the State Government on the anvil of [SECTION] of Rules of 1989 and other co-related rules applicable to the case of relaxation with regard to the age. It is ordered that in case the representation is filed by each petitioner in individual capacity within two weeks from today, then the State Government shall take decision upon the representation so filed within a period of four weeks, independently without persuaded by any observation made by this Court.
It is further ordered that till the representation to be made by the petitioners is considered by the State Government, the respondent shall accept the application form of the petitioners offline and proceed with the process of recruitment considering the application of each petitioner to be in order.
It is further clarified that in case the State Government reject the representations of the petitioner or petitioners, candidature of the petitioner/petitioners shall be cancelled and they shall be at liberty to assail the decision of the State Government. However, in case the State accepts representation and grant relaxation, the respondents shall proceed ahead with the matter. It is further clarified that the court has [CASE NUMBER]] only ordered that till the decision of the representation, application of the petitioners shall be accepted offline without commenting upon the rights of the State Government to grant or refuse relaxation qua the age of a candidate.
In view of above, the present petitions stand disposed of.
([ENTITY] ashok