LPA/1256/2003 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1256 of 2003 In SPECIAL CIVIL APPLICATION No. 4789 of 2000 With LETTERS PATENT APPEAL No. 1257 of 2003 In SPECIAL CIVIL APPLICATION No. 4474 of 2000 & LETTERS PATENT APPEAL No. 1258 of 2003 In SPECIAL CIVIL APPLICATION No. 4352 of 2000 With CIVIL APPLICATION No. 6994 of 2004 In LETTERS PATENT APPEAL No. 1258 of 2003 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT & HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? ========================================================= STATE OF GUJARAT & 1 - Appellant(s) Versus P G PUROHIT & 4 - Respondent(s) ========================================================= Appearance : Ms.ML SHAH AGP for Appellants MR MUKUL SINHA for Respondent(s) : 1-5, LPA/1256/2003 2/11 JUDGMENT MR SK PATEL for Respondent(s) : 5 CIVIL APPLICATION No. 6994 of 2003 Mr. ANAND SHARMA for Applicants Ms. ML SHAH AGP for Opponents ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER 27th February, 2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This group of Appeals, preferred by the State Government under Clause 15 of the Letters Patent, arises from the common judgment and order dated 4th August, 2003 passed by the learned Single Judge in above Special Civil Applications. At the outset, learned AGP Ms. Shah has made a grievance that though, the petitions involved interpretation of the rules framed by the State Government, the State Government was not made party for several years. After the State Government was ordered to be joined as party-respondent, before the State Government could respond, the petitions were heard and finally decided. The decision impugned is made virtually ex parte against the State Government. We do appreciate the grievance expressed by Mrs. Shah. It may, however, be noted that the State Government has been granted full hearing in the present set of Appeals. It has also been allowed to produce whatever materials in respect of its defence. LPA/1256/2003 3/11 JUDGMENT The respective respondents-writ petitioners are the servants of the State Government, employed as Assistant Engineers in Class-III service. Pursuant to the advertisement published by the Gujarat Public Service Commission [hereinafter referred to as, “the Commission”], the writ petitioners applied for selection and appointment to the posts in Gujarat Engineering Service [Class-I] or [Class-II] by direct selection. The Commission held a common competitive examination. The applications made by the writ petitioners were not accepted by the Commission. By communication dated 15th December, 1999, the Commission informed the writ petitioners that they had crossed the upper-age limit and were not eligible for appointment to Gujarat Engineering Service. They were also informed that they were not entitled to relaxation in the age limit under Rule 8 [5] of the Gujarat Civil Services {Classification & Recruitment] (General) Rules, 1967. Feeling aggrieved, by the above Special Civil Application, the writ petitioners approached this Court under Article 226 of the Constitution. We are informed that pending the petitions, the writ petitioners were allowed to take the competitive examination – written as well as oral. The results are also declared. The question still remains - whether the writ petitioners were eligible for appointment to the posts in Gujarat Engineering Service. Admittedly, the relevant recruitment rules provide for a minimum age of 21 years and a maximum age of 28 years. For certain category of applicants, the maximum age has been relaxed to an extent. Indisputably, the writ LPA/1256/2003 4/11 JUDGMENT petitioners had crossed the prescribed age limit. As such, they were not eligible for appointment to the posts in Gujarat Engineering Service [Class-I] or [Class-II] by direct selection. However, the writ petitioners, being the existing government servants, had claimed the benefit of age relaxation under sub-rule [5] of Rule 8 of the Gujarat Civil Services [Classification & Recruitment] (General) Rules, 1967 [hereinafter referred to as, “the Rules of 1967”]. The Rules of 1967 are framed by the State Government in exercise of powers conferred by proviso to Article 309 of the Constitution of India. Sub-Rule 3 of Rule 1 of the said Rules make the said rules applicable to, “services and posts, the recruitment to which is regulated in accordance with the rules made under Article 309 of the Constitution.” It is not in dispute that by virtue of Rule 1 [3] of the Rules of 1967, the said rules apply to the posts in Gujarat Engineering Service, the recruitment to which is the subject matter of dispute in the present litigation. Rule 8 of the Rules of 1967 provides for conditions in respect of prescribed qualifications. Sub-rule [5] thereof deals with the age limit prescribed under the relevant recruitment rules. The said sub-rule [5] reads as under :- “[5] Notwithstanding anything to the contrary, contained in any rules for the time being in force relating to the recruitments to any service or post the upper age limit for the purpose of recruitment prescribed in such rules shall not apply to a candidate who is already in Gujarat Government Service either as a permanent Government Servant or as a temporary Government Servant officiating continuously for six months in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servants and was within the age limit prescribed for the post at the time of his first appointment in LPA/1256/2003 5/11 JUDGMENT Government Service; Provided that such upper age limit shall apply to such candidate in a case where recruitment to a post or service is done through competitive examination or by direct selection for which experience has not been prescribed as one of the qualifications for such post; Provided further that where a post requiring a medical, engineering, veterinary or agricultural degree or diploma as a qualification is to be filled by direct selection through the Public Service Commission a Government Servant who was within the age limit when appointed to such post shall, if he subsequently applies for any such post be entitled to relaxation from the application of the upper age limit prescribed as aforesaid, even if experience has not been prescribed as one of the qualification for such post.” It is apparent that by the above referred sub-rule [5] of Rule 8 of the Rules of 1967, the State Government has done away with the age limit in respect of the candidates who are already in service of the Government of Gujarat. The first proviso thereto is an exception to the substantive sub-rule [5] of Rule 8. What is done away with in the substantive rule has been re-imposed by the first proviso in respect of recruitment to certain categories of posts i.e., those posts or services, the recruitment to which is done through a competitive examination or by direct selection, for which experience has not been prescribed as one of the qualifications. The second proviso makes exception to the first proviso in respect of the posts, for appointment to which, a candidate is required to possess a Degree or a Diploma in medicine, engineering, veterinary or agriculture. It is the aforesaid second proviso under which, according to the LPA/1256/2003 6/11 JUDGMENT petitioners, they are eligible for appointment to the posts in Gujarat Engineering Service. However, according to the State Government, selection for appointment to the posts in Gujarat Engineering Service is made through a competitive written examination, the second proviso would not apply in respect of the recruitment for posts in the Gujarat Engineering Service. Ms. Shah has submitted that the first proviso to the aforesaid sub-rule [5] of Rule 8 carves out an exception from the substantive provision made in sub-rule [5], in respect of two categories of recruitment : [i] recruitment for a post through competitive examination; and [ii] recruitment for a post, for which a candidate is not required to possess certain specified experience. She has submitted that the words, “competitive examination” used in the said proviso do necessarily mean a competitive written examination. In other words, in a case where for recruitment to a post, the selection is made wholly - by oral examination/viva voice, the first proviso would not be attracted. As to the second proviso, she has submitted that the second proviso is indeed an exception to the first proviso and thereby it brings in force the substantive provision made under the aforesaid sub-rule [5]. She has submitted that it should be noted that the words, “competitive examination” do not occur in the second proviso. The second proviso, therefore, shall have no applicability in cases where the competitive examination is held for recruitment to a post. In the present case, recruitment for appointment to the posts in Gujarat Engineering Service is made by Commission by holding competitive written LPA/1256/2003 7/11 JUDGMENT examination. The relevant recruitment rules also provide for holding of competitive written examination. The writ petitioners, therefore, cannot take shelter under the second proviso nor can they be said to be eligible for appointment to the posts in Gujarat Engineering Service [Class-I] or [Class-II]. She has submitted that the learned Single Judge has manifestly erred in holding that the writ petitioners were eligible for appointment to Gujarat Engineering Service [Class I] or [Class II] and in directing the State Government to appoint the writ petitioners as such. Mr. Sinha has contested the Appeals. He has submitted that the Rule 8 [5] of the Rules of 1967 has come up for consideration by this Court time and again. It has been consistently interpreted, as canvassed by the writ petitioners. Nevertheless, the State Government, by raising the very issue time and again, has deprived the petitioners of their legitimate right to appointment on higher post by direction selection. He has submitted that the second proviso to sub-rule [5] does not make any distinction as argued on behalf of the State Government. He has submitted that the second proviso makes an exception in case of all posts for appointment to which a candidate is required to possess a degree or a diploma in medicine, engineering, veterinary or agriculture; irrespective of the fact whether for appointment to such post, a competitive examination is held or not, or whether for appointment to such posts a candidate is required to possess experience or not. In the submission of Mr. Sinha, what is relevant is whether eligibility prescribed under the relevant recruitment rules calls for a degree or a diploma LPA/1256/2003 8/11 JUDGMENT in any of the four courses mentioned in the said sub-rule and whether the candidate [Government servant] who applies for appointment to such post/s holds the post in the State Government which also requires any of the aforementioned professional degree or diploma and whether the candidate was within the age limit when he was appointed to the post held by him. He has submitted that this issue has been decided by the learned Single Judge of this Court in the matter of Ajit K. Shahani & Anr. vs. Gujarat Public Service Commission & Anr. [1986 GLH 352]. The said judgment is confirmed in appeal and has also been followed by another Bench in the matter of Kabbur Shivanand Nagappa v. State of Gujarat & Anr. [1992 (2) GLR 1028]. We are unable to agree with Ms. Shah. It should be noted that the first proviso to sub-rule [5] of Rule 8 of the Rules of 1967 refers to recruitment by competitive examination. The competitive examination would necessarily mean an examination through which comparative merit of candidates can be ascertained. Such examination may be written; may be oral or may it be practical. The second proviso to sub-rule [5] of the said Rule-8 refers to the posts for appointment to which a candidate is required to possess a degree or a diploma in any of the courses mentioned in the said proviso. No specific distinction has been made in respect of the recruitment made through 'competitive examination' and recruitment to the posts for appointment to which, a candidate is not required to possess experience. In absence of specific LPA/1256/2003 9/11 JUDGMENT distinction made, in our opinion, the second proviso will be attracted in all cases of recruitment to the posts for appointment to which, a candidate is required to possess the educational qualification mentioned above. This view shall stand fortified by the words, “even if experience has not been prescribed as one of the qualification for such posts” that occur in the said proviso. In other words, whether the recruitment is for a post, for appointment to which, specified experience is required or is for a post, for appointment to which, no experience is required. In the present case, it is not disputed that for appointment to posts in the Gujarat Engineering Service [Class-I] or [Class-II], a candidate is required to possess a degree in engineering. It is also not disputed that the writ petitioners are working as Assistant Engineers, for appointment to which also, a candidate is required to possess a degree or a diploma in Engineering. Hence, if the writ petitioners were within the age limit when first appointed to the post of Assistant Engineer, they would be, in our opinion, entitled to relaxation from application of the upper age limit, as provided in sub-rule [5] of Rule 8 of the Rules of 1967. That is the view expressed by this Court in the above referred judgments. In the matter of Ajit K. Shahani & Anr. [Supra], the above referred second proviso to sub-rule 5 of Rule 8 of the Rules of 1967 has been interpreted. It is held that, “..In order to attract application of the second proviso to sub-rule [5], three conditions must be fulfilled, namely, [i] the candidate is holding a post requiring medical, engineering or agricultural degree or diploma, [ii] he was within the age limit when appointed to such LPA/1256/2003 10/11 JUDGMENT post and [iii] the post for which the candidate has applied also be a post requiring medical, engineering or agricultural degree or diploma. “ In view of the above discussion, we agree with the judgment of the learned Single Judge. No case for interference is made out. The Appeals are dismissed in limine. The parties will bear their own cost. At this juncture, Mr. Sinha has submitted that inspite of the settled law, on account of wrong interpretation of the aforesaid Rule 8 [5] of the Rules of 1967 by the State Government, the writ petitioners are deprived of their legitimate right to appointment to the posts in Gujarat Engineering Service [Class-I] or [Class-II] since 2003. Not only the writ petitioners should now be appointed to Gujarat Engineering Service [Class-I] or [Class-II] but they also should be given seniority to which they would have been entitled to, had they been appointed at the first instance. Ms. Shah has submitted that of the writ petitioners, only seven have found their place in the merit list. Out of these seven, five have been selected and placed on the select list. The remaining two have been placed on the wait list. It is a question of appointment by direct selection. As the selected writ petitioners have yet not been appointed, the question of pre-dating their appointment and maintaining their inter se seniority with other selected candidates would not arise. It is, however, directed that selected candidates; if not appointed as yet, will be appointed within a period of three weeks from today. LPA/1256/2003 11/11 JUDGMENT Registry will maintain copy of this judgment in each of the Appeals. {Ms. R.M Doshit, J.} {K.M Thaker, J.} Prakash*