LPA No. 47 of 2011 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 47 of 2011 (O&M) Date of Decision: April 18, 2011 Naib Singh and others …Appellants Versus State of Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. R.K. Malik, Sr. Advocate with Mr. Vishal Malik, Advocate for the appellants Mr. Aman Chaudhary, Addl. A.G., Haryana for respondent No.1-State. Mr. H.N. Mehtani, Advocate for respondent No.2. 1. To be referred to the Reporters or not? yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The sole question of law raised in the instant appeal filed under Clause X of the Letters Patent is 'whether for appointment to the post of Deputy Superintendent of Jail (Male), Group-B, the maximum age would be 25 years as prescribed by Rule 6 of the Punjab Prisons Service (Class-II), Rules 1963 (for brevity 'the 1963 Rules'), or it would be 40 years, which is claimed to have been fixed by the Government in the instructions for direct recruitment to Government Service'. The learned Single Judge while interpreting Rule 6 of the 1963 Rules has held that the maximum age for entering into Government service by way of direct recruitment for the post of Deputy Superintendent of Jail (Male) would be 25 years. LPA No. 47 of 2011 (O&M) -2- It has been further held that merely because instructions issued by the Government have prescribed 40 years of age would not nullify the effect of the main part of Rule 6 of the 1963 Rules. The view of the learned Single Judge is discernible from the following paras of the judgment which read as under: “Rule 6 cannot be read in a manner as is suggested by the counsel for the petitioners. Rule 6 has made a provision for minimum and maximum age for appointment to the post governed under the rules. The wording of the Rule would need a notice. In the rule, it is not simply stated that the age has to be between 21 and 25, but the rule clearly says that a person is not less than 21 years and not more than 25 years of age. Thus, a person who is less than 21 years of age cannot seek appointment and so too would be the position for a person, who is more than 25 years. It is then provided in the alternative as would be indicated by the use of word “or” that such age may be as fixed by the Government generally for direct recruitment to the Government service from time to time. It would apparently mean that though a person who is less than 21 years of age and is more than 25 years would not be eligible for appointment but still the Government can fix age LPA No. 47 of 2011 (O&M) -3- for direct recruitment upto 40 years. If the Government had decided to provide upper age for appointment to the post upto 40 years, this could not have been said to be invalid or violative of Rule 6 though the said Rule has provided minimum and maximum age. To urge that the alternative age which can be provided as such would deem to be operative without being provided as such would not be correct reading of the rule. Once the age has been prescribed in one part of the rule and the reply shows that there had been a conscious decision not to provide age which could be provided as per the alternative given in the rule, then the action cannot be said to be in violation of the rule. Once the minimum and maximum age has been prescribed and which is followed in the advertisement, then one cannot insist upon the government to stick to the instructions which are issued. The decision to seek appointment strictly in terms of the main part of the rule does not indicate any violation of rule which will call for interference in exercise of writ jurisdiction. No precedent has been cited before me to say that the Government would not have a jurisdiction to prescribe age for appointment to LPA No. 47 of 2011 (O&M) -4- the post. The age as prescribed is not contrary to rules. The Government would normally have a discretion to prescribe age for a particular appointment and the age as prescribed is as per the rules and is not in any manner in violation of the rule. There is, thus, no merit in the petition and the same is accordingly dismissed.” 2. The facts of the case are not in dispute that the appellants applied for the post of Deputy Superintendent of Jail (Male) in response to an advertisement No.10, issued in the month of January, 2010 (P-1). According to the advertisement, the eligibility criteria concerning age was 'not below 21 years and not more than 25 years as on 1.1.2010'. The last date of receipt of the application was 1.2.2010. The appellants were over 30 years of their age and their candidature was not considered being not eligible. The appellants have challenged the aforesaid decision of the Haryana Public Service Commission-respondent No.2 (for brevity 'the Commission') on the ground that in the earlier advertisement for the same issued on 07.12.2006, the maximum age prescribed for the post of Deputy Superintendent Jail was 21 years to 40 years whereas now the maximum age of 25 years has been prescribed which is contrary to Rule 6 itself. The learned Single Judge while interpreting Rule 6 of the 1963 Rules has dismissed the writ petition and feeling aggrieved, the appellants have filed the instant appeal. 3. Mr. R.K. Malik, learned Senior counsel for the LPA No. 47 of 2011 (O&M) -5- appellants has vehemently argued that on 22.09.1999, the Chief Secretary has issued a policy letter that the upper age limit has been raised to 40 years and according to Rule 6 of the 1963 Rules, the age limit may also be the one fixed by the Government from time to time for direct recruitment to Government service, would be the age of entry into service by way of direct recruitment. According to learned counsel, the word used in Rule 6 of the 1963 Rules would be rendered otiose. Mr. Malik has emphasised that the cardinal principles of interpretation is to give meaning to every word in a statute and therefore, the advertisement was patently against the spirit of Rule 6 of the 1963 Rules. Learned counsel has also submitted that on 7.12.2006, an advertisement was issued where the age limit of 40 years was prescribed for the post of Deputy Superintendent of Jail. 4. Mr. H.N. Mehtani and Mr. Aman Chaudhary, learned counsel for the respondents have, however, refuted the submissions and have argued that main part of Rule 6 of the 1963 Rules cannot be rendered nugatory by interpolating the maximum age limit of 40 years and the learned Single Judge has rightly interpreted the Rule 6 of the 1963 Rules. They have explained the issuance of earlier advertisement by referring to para 3 of preliminary submissions of the written statement. They have emphasised that there was a mistake committed by the department in issuing the earlier advertisement. According to them, the post of Deputy Jail Superintendent requires discharge of tough duty demanding LPA No. 47 of 2011 (O&M) -6- strenuous physical and mental training. Deputy Superintendent of Jail are responsible for maintaining security, manage jail administration and to control all activities within the jail premises. It is submitted that once a person attains full maturity then imparting of strenuous physical and mental training becomes difficult because attitudes are formed and takes its roots. It is not easy to instill right type of spirit required for the job in older person of 40 years. Therefore, recruitment of Deputy Superintendent of Jail at a younger age of 25 years is preferable. 5. Mr. H.N. Mehtani, learned counsel for the Commission has drawn our attention to the averments made in para 4 of the written statement and argued that to a query raised by the Commission the Government vide letter dated 14.12.2009 had conveyed that the lower and upper age limit for recruitment to the aforesaid posts of Deputy Superintendent of Jail must be treated to be 21 to 25 years because 'the duty of the Deputy Superintendent Jail is to provide protection and supervision and therefore, candidate of higher age is not capable of performing such duties'. 6. Having heard learned counsel for the parties and after perusing the paper book we find that it would first be necessary to read Rule 6 of the 1963 Rules, which is as under: “Age-No person shall be recruited by direct appointment to the Service unless he is not less than 21 years and not more than 25 years of age or of such age as may, from time to time, be LPA No. 47 of 2011 (O&M) -7- fixed by the Government generally for direct recruitment to Government service, on or before the Ist January, next succeeding the last date appointed by the Commission for the submission of applications: Provided that the Government may, in special circumstances to be recorded in writing, relax the upper age limit: Provided further that in the case of candidates belonging to Scheduled Castes, Scheduled Tribes or Backward Classes the maximum age limit shall be such as may be fixed by Government from time to time. Provided further that in the case of a candidate who has not less than five years, service under Government the upper age limit shall be 35 years.” 7. On the language of the Rule 6 of the 1963 Rules, it is patent that Rule 6 does not prefer the words that the age has to be between 21 years 25 years. The Rule 6 of the 1963 Rules categorically declare that a person is not less than 21 years and not more than 25 years of age. The use of the words 'less than 21 years and not more than 25 years of age' put beyond any doubt that the Rule would not permit any candidate to be eligible for consideration for appointment to the post if he is less than 21 years and more than 25 years of age. The aforesaid view taken by the learned Single Judge is LPA No. 47 of 2011 (O&M) -8- fully justified on the reasoning that once the age has been prescribed in one part of the Rule and the reply shows that there had been a conscious decision not to prefer age limit which could be provided as per the alternative given in Rule 6 of the 1963 Rules itself, then the action cannot be said to be in violation of the Rule 6 of the 1963 Rules. Accordingly, we are of the opinion that the learned Single Judge has rightly held that once the minimum and maximum age has been prescribed by issuing an advertisement then the appellants could not have insisted upon the State to stick to instructions dated 22.09.2009 (P-2). 8. We are further of the view that on a strict consideration of the instructions dated 22.09.2009, the interpretation, which is sought by the appellants would not flow. The first para of the instructions would be necessary to appreciate the controversy, which reads as under: “I am directed to refer to Haryana Government letter No. 3/1/90-1 GSIII dated 5.9.90 on the subject noted above and to say that for the purpose of making recruitment to various services under the State Government, the general upper age limit prescribed at present under rule 3.6 of Punjab Civil Services Rules Vol. I, part-I is 35 years. The matter regarding raise in the upper age limit has been under consideration of Government for some time in order to mitigate the hardship of educated LPA No. 47 of 2011 (O&M) -9- unemployed youths, it has been decided that the existing general upper age limit for entry into service-under the State Government shall, notwithstanding any provision to the contrary that may be contained in respective rules be raised to 40 years subject to the following conditions.” 9. A perusal of the first paragraph of the instructions would show that under Rule 3.6 of the Punjab Civil Services Rules Vol. I, part-I (for brevity 'the Rules'), the upper age limit prescribed for making recruitment to various services under the State Government has been fixed at 35 years. The aforesaid age limit has been raised to 40 years by issuing instructions subject to certain conditions. The aforesaid Rules are in force for a long time and if 35 years of the upper age limit is prescribed for direct recruitment to the State services then there was no reason for the State Government to provide in Rule 6 the upper age limit of 25 years for recruitment to the post of Deputy Superintendent Jail. Therefore, general rule may not be applicable to the specific provision made by Rule 6 particularly when it is not a service where the upper age limit was earlier prescribed to be 35 years. In other words, instructions providing for 40 years of maximum age would apply to the cases where upper age earlier was 35 years. Moreover, there is conscious decision taken by the State Government disclosing rationale basis for choosing to apply the first part of the Rule 6 which supported by the basic LPA No. 47 of 2011 (O&M) -10- requirement for appointment to the post of Deputy Superintendent of Jail if the object imparting strenuous physical and mental training is defeated then the whole object of constituting the service would be lost. According to the written statement filed by respondent No.2, a clarification was sought by them from the State Government vide letter dated 21.08.2009, which has been replied on 14.02.2009, conveying that the lower and upper age limit for recruitment to the post of Deputy Superintendent Jail has to be kept between 21 to 25 years. It is supported by the rationale that the duty of the Deputy Superintendent Jail are onerous which requires rigorous, physical and mental training for providing protection and supervision. Therefore, the candidate who are 40 years of age would not fit the bill and would not be capable of performing such duties. Further rationale disclosed in the written statement is that by the age of 40 years, a person becomes mature and the flexibility vanishes, which is necessary to mould one's habit. Still further, the Government has taken the decision, which is found to be just and reasonable as per provisions of Articles 14 and 16(i) of the Constitution. 10. The arguments of Mr. R.K. Malik, learned Senior counsel that in the year 2006, also the upper age limit of 40 years was advertised would not be acceptable because it has been frankly considered by respondent No.2 that it was the result of bona fide mistake. It was for the aforesaid reason that the Commission sought clarification from respondent LPA No. 47 of 2011 (O&M) -11- No.1, which has been replied with all reasonable explanation. Therefore, the arguments is devoid of merit and is, thus, hereby rejected. 11. As a sequel to the above discussions, this appeal fails and the same is dismissed. 12. In view of the dismissal of the appeal on merit, no orders are required to be passed on the application seeking condonation of 4 days' delay. (M.M. KUMAR) JUDGE (T.P.S. MANN) JUDGE April 18, 2011 Atul