1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6277 OF 2007 Tanhiram s/o Ananda Shelke Patil, Residing at: N-9, H 69/1, HUDCO, Shri Krishnanagar, Aurangabad 431 003. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through the Secretary to the Government, Education Department, Mantralaya, Mumbai and others. ...RESPONDENTS. ... Shri. Hemant Surve Advocate for Petitioner. Shri.V.H. Dighe, A.G.P. for Respondent Nos. 1, 2, 4 and 5. Shri. A.R. Nikam Advocate for Respondent No.6. ... CORAM: NARESH H. PATIL AND N.D. DESHPANDE, JJ. DATE : 6TH MAY, 2010. PER COURT : 1. Heard learned counsel for the parties. 2 2. The Petitioner challenges the validity of Rule 3 (iii) of Maharashtra Finance and Accounts Services, Class III, Competitive Examination Rules, 1987 (for short "the Rules of 1987). The learned counsel for the Petitioner submits that the said Rule is unreasonable and does not achieve the purpose and object for which it was framed. It creates separate classes and categories of candidates who would be desiring to appear for the examination. The Petitioner is qualified to appear for the examination but was not allowed as he was more than 40 years of age on the date of filing of application. The pre-condition as envisaged under Rule 3 (iii) of the Rules of 1987 therefore, deserves to be quashed and set aside. The counsel further submitted that under Rule 4 of the Rules of 1987 the exception has been carved out excluding Government servants absorbed in Maharashtra Finance and Accounts Service, employees of District service Class-III (Accounts) of Zilla Parishad, whereas the candidates belonging to other departments are not allowed to 3 take benefit of the provisions of Rule 4 of the Rules of 1987. 3. In the alternative, it was submitted by the learned counsel appearing for the Petitioner that under Rule 8 of the Rules of 1987 the Government has powers to exercise discretion to grant special permission by relaxing conditions. The State Government can exercise such discretion in the case of the Petitioner. The Petitioner's service record shows that he was born on 1st June, 1967; whereas according to the Petitioner, his actual date of birth is 28th April, 1968 as per the certificate obtained by the Petitioner from the Municipal Council, Pachora, District Jalgaon (Exhibit D). 3. The Respondent S.S.C. Board and the State filed affidavit in reply. The learned A.G.P. for State submitted that the Rules are framed in exercise of the powers under Article 309 of the Constitution of India. Certain restrictions are 4 put on the candidates for appearing in competitive examination, which restrictions are reasonable and achieve objects for which the Rules were framed. The Petitioner joined judicial service in the year 1993 and for a long time the Petitioner did not get the date of birth corrected if it was required to be corrected. It was submitted that the Petitioner had approached the Civil Court for declaration in respect of his date of birth. The Civil Court by a Judgment and Order, had dismissed the suit. 4. The learned counsel appearing for the S.S.C. Board submitted that Regular Civil Suit No. 650 of 2007 was filed by the Petitioner which came to be dismissed by a Judgment and Order dated 23rd October, 2007. Therefore, the competent Court has concluded the issue of date of birth of the Petitioner. As of today the date of birth of the Petitioner, according to service record, is 1st June, 1967. Therefore, the Petitioner is not entitled to claim that on the basis of the date 5 which the Petitioner wants to introduce now, he must be held eligible for appearing in the examination. 5. We have considered the submissions advanced, perused the documents placed before us and the reply filed by the Respondents. We find that the Rules of 1987 have been framed in exercise of powers conferred by Proviso to Article 309 of the Constitution of India. Considering the objects and purpose behind the Rules of 1987, we do not find that they failed to achieve the objects for which they were framed. Certain restrictions and conditions are put on the candidates who desires to appear for competitive examination. The Petitioner's service record shows that his date of birth is 1st June 1967, therefore no relief could be granted to the Petitioner. 6. In respect of Rule 8 of the Rules of 1987, it was submitted that the Government has discretion to grant special permission to certain 6 class of persons as described in Rule 8. This issue is raised before this Court during the course of arguments. It was submitted that the Petitioner filed an application dated 28th July, 2007 addressed to the Director, Accounts and Treasuries, Mumbai and had prayed that as his date of birth is 26th April 1968, he may be allowed to appear for the examination. The issue of claiming orders under the discretion of powers in view of Rule 8 were not specifically raised. 7. In this view of the matter, we find that the Petitioner has failed to make out any case for interference in exercise of extra ordinary writ jurisdiction of this Court. The Writ Petition is accordingly dismissed. Ad interim relief granted, stands vacated. [N.D.DESHPANDE, J.] [NARESH H. PATIL, J.] asb/MAY10/wp6277.07