1 S.B.CIVIL WRIT PETITION NO.2839/2004 Nawab Ali Vs. State of Raj. & Ors. Date of Order :: 26.8.2008 HON'BLE MR. JUSTICE GOVIND MATHUR Mr. M.S. Panwar, for the petitioner. Mr. Shyam Toshniwal, for Mr. N.M.Lodha, AAG. ... On 12.5.1995 a process of selection was initiated by the respondents for making recruitment to th post of Teacher Gr.III. On rejection of the application submitted by the petitioner to participate in process of selection referred above he preferred a writ petition (SBCivil Writ Petition No.1688/95) before this Court wherein an interim order was passed as follows:- “Put up on 6th July, 1995 alongwith other similar cases. The petitioner shall also be interviewed in the interview for Grade- III Teacher which are going to commence on 29.5.95 and 31.5.95. The selection process be go on, but, if any appointments are made, they shall be subject to the result of this writ petition and this fact shall be mentioned in the appointment letters.” The petitioner was interviewed accordingly, but the petition for writ ultimately came to be rejected on 18.7.2005. Suffice to note that the candidature of the petitioner was rejected being over age. Despite dismissal of the writ petition appointment was accorded to the 2 petitioner under an order dated 30.1.1996 as Teacher Gr.II. The appointment of the petitioner as Teacher Gr.II was cancelled and by an another order dated 25.6.1996 he was re-employed as Teacher Gr.III. On completion of the term of probation satisfactorily, the service of the petitioner was confirmed w.e.f. 6.7.1998 vide an order dated 3.8.2001. Quite strangely, the District Education Officer, Churu by a notice dated 6.2.2004 instructed the petitioner to appear before him on 9.2.2004 to explain his stand relating to the judgment dated 18.7.1995 passed in SBCivil Writ Petition No.1688/1995. An immediate response was given by the petitioner to the notice aforesaid with specific assertion that by the order dated 18.7.1995 Hon'ble High Court rejected the writ petition and no other direction was given. By the order dated 2.7.2004, the District Education Officer, Churu removed the petitioner from service being over-age at the time of initial appointment. To challenge the action of the District Education Officer this petition for writ is preferred with the contentions that:- (i) the appointment was accorded to the petitioner by the respondents knowing it well that he was not within the age limit prescribed, thus, a presumption is required to be drawn that a relaxation in maximum age limit was granted, (ii) the termination from service after a lapse of more than 8 years and that too after confirmation in service is highly unjust, and (iii) without prejudice to the grounds above the respondents should 3 have conducted a regular inquiry before terminating the petitioner from service as the termination of the petitioner from service was by way of a disciplinary action. In reply to the writ petition it is stated by the respondents that after dismissal of SBCivil Writ Petition No.1688/95 there was no occasion for granting appointment to the petitioner but the same was given due to an error on part of some officers of the respondent-department. The officers concerned were also subjected to an inquiry for granting appointment to the petitioner erroneously. A rejoinder is also submitted on behalf of the petitioner mainly reiterating the facts stated in the writ petition. Heard counsel for the parties. It is not in dispute that the petitioner faced process of selection in pursuant to an interim order passed by this Court and the writ petition preferred by him came to be rejected on 18.7.1995. The order rejecting the petition for writ preferred by the petitioner is available on record as Annexure-R/1, from perusal whereof it is apparent that the writ petition was dismissed in presence of counsel for the respondents. Despite having knowledge of the fact about age of the petitioner the appointment was accorded to him after dismissal of the writ petition 4 referred above. Not only this the respondents gave appointment to the petitioner in the month of June 1996 as Teacher Gr.III after withdrawing his appointment as Teacher Gr.II. The petitioner was allowed to continue in service and on successful completion of probation by a positive action he was confirmed in service. A power of relaxation in maximum age limit is available to the Administrative Department of Government of Rajasthan under Rule 38 of the Rajasthan Educational Subordinate Service Rules, 1971 that reads as follows: “38. Power to relax rules- In exceptional cases where the Administrative Department of the Government is satisfied that operation of the rules relating to age or regarding requirement of experience for recruitment causes undue hardship in any particular case or where the Government is of the opinion that it is necessary or expedient to relax any of the provisions of these rules with respect to age or experience of any person, it may with the concurrence of the Department of Personnel and Administrative Reforms and in consultation with the Commission by order dispense with or relax the relevant provisions of these rules to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner, provided that such relaxation shall not be less favourable than the provision already contained in these rules. Such cases of relaxation shall be referred to the Rajasthan Public Service Commission by the Administrative Department concerned.” As per Rule 38, the Administrative Department of the Government on being satisfied that operation of the Rules relating to age or regarding requirement of experience for recruitment caused undue hardship in any particular case may relax any of the provisions of the Rules of 1971. Though it was never conveyed to the petitioner that the 5 administrative department of the Government of Rajasthan ever exercised powers under Rule 38 and relaxed the maximum age limit but a valid presumption can very well be drawn for grant of such relaxation, as the appointment was given to the petitioner after dismissal of his writ petition and he was allowed to continue in service for about eight years. The respondents in this period also confirmed the petitioner in service by taking a positive action. No eye-brow was raised during this entire period about alleged erroneous appointment. It is only in the year 2004, after utilizing service of the petitioner for good eight years, the respondents took action against the petitioner and that too was initiated by an absolutely vague notice. Even if it is accepted that the power of relaxation was not exercised by the respondents at the time of initial appointment of the petitioner, then too they ought to have exercised such power, instead of terminating him from service as undue hardship on termination from service is on face. The power of relaxation is made available to the employer under the statute only to meet such exigencies. It is not the case of the respondents that the petitioner obtained appointment by making mis- representation or forgery or by certain other ill means. The order terminating the petitioner from service dated 2.7.2004 is apparently arbitrary, hence, deserves to be quashed. 6 The petition for writ, thus, is allowed. The order dated 2.7.2004 is quashed. Consequently, the petitioner is declared entitled for reinstatement in service with all consequential benefits except actual payment of back-wages. The petitioner shall be entitled for getting all financial benefits notionally. Cost made easy. (GOVIND MATHUR), J. Jgoyal '