Civil Writ Petition No.2034 of 2010 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 22, 2010 Naib Singh & others .....Petitioners VERSUS State of Haryana & another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R.K.Malik, Senior Advocate with Mr.Surya Partap Singh, Advocate, for the petitioners. Mr.Sunil Nehra, Sr.DAG, Haryana, for the State. Mr.H.N.Mehtani, Advocate, for respondent No.1. **** RANJIT SINGH, J. Haryana Public Service Commission has invited applications for filling up 9 posts of Deputy Superintendent of Jail (Male) (Group-B) though an advertisement issued on 1.2.2010. As per the advertisement, a candidate must not be below 21 years and Civil Writ Petition No.2034 of 2010 : 2 : not more than 25 years of age as on 1.1.2010. The petitioners have challenged the said part of advertisement on the ground that age as prescribed is contrary to the relevant rules and, thus, the petitioners have been debarred from applying for the post, though are duly eligible under the rules. The relevant rules governing the post of Deputy Superintendent of Jail are called Punjab Prisons Service (Class-II) Rules, 1963 (for short “the Rules”) and Rule 6 lays down the age and reads 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 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.” Rule 6 after having provided minimum and maximum age also makes a provision in the alternative for laying down age as may Civil Writ Petition No.2034 of 2010 : 3 : be from time to time fixed by the Government generally for direct recruitment in the Government service. It is this later portion of Rule 6, which is stressed by the counsel for the petitioners to urge that age as prescribed in the advertisement is contrary to the rules. In this regard, reference is made to a letter dated 22.9.1999 issued by Chief Secretary to all the Heads of Department raising the age limit for entering into Government service. Copy of this letter is placed on record as Annexure P-2. This letter recites that it has been decided that the existing general upper 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. This, however, is subject to certain conditions which are given in the letter and are as under:- “a) The existing instructions in regard to the relaxation of 5 years in the upper age limit in respect of Scheduled caste, Scheduled Tribes and Backward Classes for appointment to gazette as well as non-gazetted services or posts will continue to be in force. b) the relaxation in-upper age limit for recruitment in respect of ex-servicemen as contained in Haryana Govt.circular letter No.4710-5GS-70/18998, dated the 15th July, 1970 will continue as heretofore. In other words the candidates of this category may be recruited upto the age of 40 years plus continuous military service added by three years and c) If in certain service rules the upper age limit higher than 40 years is permissible on account of special grounds Civil Writ Petition No.2034 of 2010 : 4 : or in certain circumstances. Those provisions shall, continue to remain in force.” Based on this, the petitioners would contend that the upper age limit as per the rules would have to be 40 years even though minimum or maximum age may have been prescribed in the rules. In support of this submission, reference is also made to an earlier advertisement issued by Haryana Staff Selection Commission on 7.12.2006 inviting applications for appointment of three posts of Deputy Superintendent of Jail when the age prescribed was 21-40 years. In response to a notice, written statement has been filed. Reliance is placed on Rule 6 of the Rules to submit that age as mentioned in the advertisement is as per the said rule. It is then pointed out that the job requirement entail extensive training and physical fitness and that the persons selected will also have to undergo training for 30 months after their appointment or as soon as possible thereafter as given in Rule 11 of the Rules. The action in prescribing age as per the rules, thus, is justified besides stating that earlier advertisement laying down age from 21 to 40 was in violation of the rules. It is rather stressed that the mistake once committed can not be repeated over and over again. A separate written statement has been filed on behalf of the Commission. It is pointed out that the petitioners are over age of 25 years as on 1.1.2010, which is the upper age prescribed in the advertisement and accordingly it is stated that they were considered not eligible. Rather the Commission has disclosed in its reply that on receipt of the requisition for making appointment to this post, it wrote Civil Writ Petition No.2034 of 2010 : 5 : a letter on 21.8.2009 to the Government seeking clarification in terms of Rule 6 but in response the Government had conveyed it to the Commission that the age be laid down as minimum 21 and maximum 25 years because of the duties required to be performed by Deputy Superintendent of Jail which is to provide protection and supervision and the candidates of higher age may not be capable of performing such duties. In view of the respective stand of the parties, it is now required to be seen if the age as prescribed for appointment to the post is in violation of the statutory rule or not. Counsel for the petitioners would emphasis that letter Annexure P-2 would be a part of the rules in view of the manner in which Rule 6 is worded. As per the rule, age has to be that age which is fixed by the Government generally for direct recruitment to the Government service. As per the counsel, the letter issued by the Chief Secretary would become part of the rule in view of the wording of Rule 6 and, thus, the age as prescribed in the advertisement is contrary to the rules. 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 Civil Writ Petition No.2034 of 2010 : 6 : 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 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 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 Civil Writ Petition No.2034 of 2010 : 7 : 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. July 22, 2010 ( RANJIT SINGH ) ramesh JUDGE