IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 442 of 2009 Decided on : 25.11.2010 Kulbhushan Sharma and others ..…Petitioners. Versus State of Himachal Pradesh and others …… Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Petitioners : Ms Sunita Sharma, Advocate. For respondents : Mr. R.K. Bawa, Advocat eGenral with Mr. Ankush Dass Sood, Addl. A.G. Justice Kurian Joseph, Chief Justice. The petition has been filed for grant of the following substantive reliefs vide para 7 (i) to (iv):- “(i) That the writ in the nature certiorari may kindly be issued for quashing the impugned Annexures PE & PF Advertisement dated 11.12..2008 and Corrigendum dated 14.01.2009 may kindly be quashed and set aside being violative of Articles 14 & 16. (ii) That the writ in the nature of mandamus may be issued by directing the respondents No.1 & 2 not to enforce law which is ultra-vires of the Constitution of India and Recruitment and Promotion rules which prescribed the maximum age of 50 years as per column no. 6 and Recruitment & Promotion rules 1 Whether reporters of the local papers may be allowed to see the judgment? . 2 dated 14.1.09 may be struck down being violative of Articles 14 & 16of the Constitution of India. (iii) That the respondents No. 3 to 5 may be ;directed to sponsor the name of the petitioners from their concerned employment exchanges. (iv) That the respondents No. 1 & 2 may be directed to consider the petitioners for the post of Ayurvedic Medical Officer after issuing them interview letters.” 2. In the reply filed on behalf of respondents No. 1 and 2, the following averments have been set up vide paras 4 and 5 of preliminary submissions and paras 8, 10, 13 and 15(E) on merits:- “ The matter of granting relaxation in any clause of R & P Rules is totally under the purview and prerogative of Government and relaxation in age/ qualification etc. for becoming eligible or appointment under the Respondent State cannot be claimed as a matter of right by involving the Government in litigations. The Column No. 18 of the R & P Rules of the post of Ayurvedic medical Officers can be read as under:- 18. Powers to relax Where the State Government is of the opinion that it is necessary or expedient to do so, it may, by order for reasons to be recorded in writing and in consultation with the H.P. Public Service Commission, relax any class or category of persons or 3 posts. 5. The petitioners have obtained their BAMS degrees for increasing their professional knowledge etc. without having any consent of the Government to do or not and thereafter earning their livings etc. on this degree by getting themselves registered. The State Government has never signed any agreement/bond with the Petitioners to provide them the Government job etc. when they got themselves registered under the Board or acquired degree from any Institution. The act of registration is a formality which is to be completed for carrying out private practice in the area. Even then the Respondent State has acted as Welfare State/Noble employer to accommodate maximum number of overage candidate i.e beyond 45 years by granting 5 years relaxation in upper age limit in batchwise recruitment. However, there are certain limits that each & every candidate cannot be accommodated/considered for appointment. 8. The grounds taken up on the action of Respondent State in this para are hopelessly time barred and cannot be reopened after lapsing of more than 10 years. The persons of the age beyond 48 yea5s were appointed as per the decision of the Council of Ministers (Government) taken in its meeting on 30.03.2009 in relaxation of R&P Rules of the post of Ayurvedic Medical Officer which stipulated that candidates of above 48 years of age may be considered for appointment on contract basis against vacancies in remote/difficult/tribal areas. On the basis of above decision of the Council of Ministers the two persons mentioned in this para of the age above 48 years at that time 4 were considered for appointment in the hard/difficult/tribal areas. 10. The replies to the Paras No. 8 & 9 may kindly be read as part of reply to the averments made in this para. Dr. Onkar Chand Sharma and Dr. Kherati Lal were interviewed in August, 1998 and December, 1997 respectively whose case were covering under the decision of the Council of Minsiters as discussed in the Para 8 supra so they were offered appointments in the hard/tribal areas. The petitioners cannot claim their appointments on the analogy of above candidates. It is further submitted that the petitioners alongwith others whose names were sponsored by the Employment Exchanges were interviewed in the year June 1999 for post of Ayurvedic Medical Officers. 45 posts of Avurvedic Medical Officers were to be filled up a select list of 76 candidates belonging to 1978 to 1983 batches were prepared as per prescribed procedure. 39 candidates of 1983 batch appeared in the interview. Since vacancies were less and it was not feasible to accommodate all the 39 candidates of 1983 batch, therefore, seniority was drawn according to the date of births of the candidates. So, 13 candidates of 1983 batch were only offered appointments. The petitioners viz. Shri Praduman Kumar and Kulbhushan Kumar were found junior and they could not be offered appointments. The other two petitioners viz. Dr. Moti Lal & Dr. Mohan Lal belonging to 1984 BANS batches have not been considered till date for appointment. 13. The petitioners have lack of knowledge as the prescribed age limit is 18 to 45 years in the R&P Rules. The Government has taken pliicy 5 decision in the month of February/March, 2008,that now the posts of Avurvedic Medical Officers will be filled up by 50% on batchwise basis and 50% on direct recruitment basis so the Government of Himachal Pradesh in the Department of Personnel (A-II) has amended the HP Public Service Commission (Exemption from Consultation) Regulations, 1973 on 10th September, 2008 by inserting Point/Item No.13 after Point/Item No. 12 as under:- “50% post of direct recruitment of Teachers, Engineers and Doctors in Health & Family Welfate, Ayurveda & Animal Husbandary Departments, Himachal Pradesh (Class-I & II) recruitment to which is made on batchwise basis” The replying respondents were to carry out amendments in the present R&P Rules of the post of Avurvedic Medical Officers for which process was in the pipeline. In the meantime keeping in view the exigencies of public work relating to providing of better health facilities in the far flung area of the State, the Council of Ministers permitted replying respondents in the month of August, 2008, ti fill up 150 posts of Avurvedic Medical Officers on 50% batchwise basis and 50% direct recruitment basis in relaxation of R&P Rules in force at that time. As per R & P Rules the prescribed ate limit was 45 years and below which was again relaxed by the Council of Minsiters in the month of January, 2009, by 5 years i.e 50 years for batchwise recruitment as one time measure only. So the petitioners are again ineligible as the prescribed age is only 50 years for batchwise recruitment and representation of the petitioners were not considered. 6 15(E) The relaxation of 5 years in case of batchwise recruitment has been granted as one time measure only with the approval of Council of Ministers. So there is no need to notify any amendments in the R & P Rules. According to the policy decision of the Government the R&P Rules of the post of Avurvedic Medical Officer have been repealed and notified on 17.02.2009 that have also been published in the Government Gazette. Here it is also submitted that the petitioners are also misguiding this Hon’ble Court as they have not applied for supplying of any R & P Rules under Right to Information Act as on today.” 3. Respondent No. 3 has set up the following averments vide para 2 of preliminary submissions:- “2. That the respondent No.2 notified 75 posts of Ayurvedic Medical Officer (on batch wise basis on contract) vide letter No. Ay.H(B)(2)-3/99-15631-698 dated 10-12-2008 and corrigendum of even No. dated 12-01-2009 (Annexure R-I) wherein upper age mentioned for these posts was 50 years and below as on 01.1.2009 but relaxable in case of SC/ST/OBC and Ex-Serviceman according to the instructions of State Government. The petitioners being above 50 yeas of age as on 01-1-2009 could not be considered for submission and were thus not sponsored.” 4. Replies filed on behalf of respondents No. 4 and 5 are akin to that of respondent No.3. 5. Admittedly, this case relates to batch-wise recruitment to the post of Ayurvedic Chikitsa Adhikari (presently Ayurvedic Medical Officer) in the Department of Ayurveda. As per 7 Rules, the upper age limit was below 35 years and thereafter the same was enhanced to 45 years and 48 years, respectively, as is apparent from Annexures PA, PD and PE. Judicial notice can also be taken of the fact that upper age limit for Government employment in Himachal Pradesh has since been raised up to 48 years. It is also not disputed that in the Department of Ayurveda, it has further been raised up to 50/52 years. 6. In view of the above, the petition is disposed of with a direction to respondents No. 1 and 2 to consider the case of the petitioners for appointment as Ayurvedic Medical Officer on batch-wise basis in relaxation of upper age limit as has already been done in the cases of similarly situate persons, as also the existing policy of the State Government in this regard within a period of two months from today on production of a certified copy of this judgment by the petitioners within 15 days. 7. With these observations, the writ petition is disposed of, so also the pending application(s), if any. ((Justice Kurian Joseph), Chief Justice (Justice V.K. Sharma) Judge. 25th November, 2010. Lsp*