CWP No.1590/2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.1590/2007 Date of Decision: 21.1.2008 Basudev Yadav ............. Petitioner Versus State of Haryana and others. ..............Respondents. CORAM: HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE JASWANT SINGH Present:- Sh.Rao D.S.Nirban, Advocate for the petitioner. Sh.Harish Rathee, Sr.D.A.G.Haryana for the respondents. ***** JASWANT SINGH, J. The petitioner, a backward class candidate, has prayed for quashing of the letter/order dated 4.1.2007 (Annexure P-4) issued by the Haryana Staff Selection Commission (for short the Commission)-respondent no.3, vide which his application for selection to the post of Mining Officer has been rejected on the ground of his being over-age. He has further prayed that the respondents be directed to consider him eligible for the post in question (as he is entitled to relaxation of 5 years in age). The brief facts of the case are that the petitioner is presently working as a Mining Inspector in Mines and Geology Department, at Narnaul and belongs to backward class category. The Commission on 14.9.2006 vide advertisement no.7/2006 advertised one post of Assistant Geologist (for General Category) and three posts of Mining Officer (General=1, SC=1 and ESM=1) respectively for Mines and Geology Department, Haryana. The petitioner is stated to have applied for the abovesaid posts in the General Category and also deposited the fee of CWP No.1590/2007 2 Rs.500/- which is meant for General category candidates,through proper channel on 27.9.2006. His application was recommended and forwarded to the Commission vide letter dated 9.10.2006 (Annexure P-1) by the respondent department, after considering him eligible with respect to age and qualification etc. The date of birth of the petitioner is 3.3.1965. it is stated that in the advertisement it was clearly mentioned that the candidates between the age of 21-40 years shall be eligible. Petitioner's application for the post of Mining Officer was rejected by the Commission vide letter dated 4.1.2007 (Annexure P-4) on the ground of his being over-age (i.e. 41 years 7 months approximately) on the cut off date i.e. 13.10/2006. Hence this writ petition. Vide order dated 1.2.2007, at the time of issuing notice of motion, the following contention of the learned counsel for the petitioner was noted:- “The petitioner had applied for the post of Assistant Geologist and Mining Officer in pursuance to advertisement dated 14.9.2006. The application of the petitioner was rejected on the ground that he was overage as the maximum age limit for the post was 40 years. Counsel for the petitioner contends that as per Rule 3.6 (b) of the Haryana Civil Services Rules which is reproduced as under:- “(b) The age limit of 40(Forty) years shall be extended by five years in the case of Scheduled Castes/Scheduled Tribes and Backward Classes for appointment to Gazetted as well as non- Gazetted services or posts...” the petitioner was entitled to relaxation of five years as he CWP No.1590/2007 3 belongs to Backward Class.” Separate written statements have been filed by respondent nos. 3 and 1 & 2. In the written statement filed by respondents it has been given out that the aforesaid posts are governed by the recruitment rules called the Haryana Mines and Geology (Group-B)Service Rules,1998 (for short the 1998 Rules). Rule 5 of these Rules provide that no person shall be appointed to any post in service by direct recruitment who is less than 21 years or more than 35 years of age on or before the date of submission of application to the Commission or any other recruiting authority. However, the State Government has vide instructions dated 22.9.1999 (Annexure R- 3/2), notwithstanding any provision to the contrary in any service rules, raised the upper age of 40 years subject to certain conditions as laid down in the aforesaid instructions. It is noticed that this decision was subsequently incorporated in Rule 3.6 of the Punjab Civil Services Rules, Volume I, Part I (hereinafter referred to as the Punjab Civil Service Rules), vide notification dated 5.6.2001, made effective w.e.f. 22.9.1999. Relevant extract of the aforesaid substituted Rule 3.6 is as under:- “3.6(a) Notwithstanding anything contrary contained in the respective service rules, no person whose age exceeds 40 (Forty) years may ordinarily be admitted into pensionable service under the Government. (b) The age limit of 40 (Forty) years shall be extended by five years in the case of Scheduled Castes/ Scheduled Tribes and Backward Classes for appointment to Gazetted as well as non- Gazetted service or posts. CWP No.1590/2007 4 Note 1:- xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Note 2:- xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ” The respondents have also annexed copy of instructions issued on 25.6.1997 as Annexure R3/1 by which State of Haryana has laid down that candidates belonging to Scheduled Castes/ Backward Classes, who are selected in the open competition for direct recruitment on the basis of their own merit should fulfill conditions of eligibility regarding age etc. as are meant for general category candidates. Learned counsel for the petitioner has argued that in view of provisions of Rule 3.6(b) of the Punjab Civil Service Rules (ibid), petitioner was entitled to relaxation of five years in age and thus, his application could not be rejected on the ground that he was overage. On the other hand, learned Senior Deputy Advocate General has argued that under the 1998 Rules, governing the recruitment to the post, no person could be appointed to any post in service by direct recruitment who was less than 21 years or more than 35 years of age on the cut off date i.e. 13.10.2006, but by virtue of provisions of Rule 3.6 of the Punjab Civil Service Rules (ibid), the upper age limit is deemed to be extended to 40 years only. The counsel further argued that in view of the instructions dated 25.6.1997, the benefit of further age relaxation of five years provided for in Rule 3.6 (b) of Punjab Civil Service Rules would only be applicable to the posts for which the recruitment is made from amongst the reserved categories. We have heard learned counsel for the parties and perused the record. We are not impressed by the arguments advanced by the CWP No.1590/2007 5 learned counsel for the petitioner. Agreeing with the submissions made by the learned State counsel, we are satisfied that the action of the respondents in rejecting the application of the petitioner on account of having become overage (41 years and seven months) was perfectly justified in view of the decision of the State of Haryana to the effect that members of the reserved categories who compete against general category posts on their own merit are required to fulfill eligibility conditions laid down for general category candidates. This is in consonance with the equality clause as enshrined in Articles 14 and 16 (1) of the Constitution of India which lay down that all equals must be treated equally in the matter of public employment. The contention of the learned counsel for the petitioner that in view of provisions of Rule 3.6.(b) of Punjab Civil Service Rules (ibid) he would be entitled to a relaxation of five years in age is mis-conceived. The provisions of Rule 3.6, as reproduced above, lays down general relaxation of condition of maximum age permitted for entry into government service for candidates in general category and in the reserved category. This rule does not lay down that when the posts are filled by way of direct recruitment in the open competition, meant for all/ general category, a candidate belonging to reserved category would be entitled to relaxation in age. In that eventuality the instructions dated 25.6.1997 would come into play which are as under:- “I am directed to invite your attention to Haryana Govt. instructions issued vide No.1257-2GSI-75/7995, dated 25.3.75 on the subject cited above wherein it has been laid down that the number of posts filled in by appointing candidates CWP No.1590/2007 6 belonging to Scheduled Castes and Backward Classes categories who are selected on their own merit should be reduced from the reserved quota meant for their category and to say that the Hon'ble Supreme Court while dealing the case of Indira Sawhney has passed on 16.11.92 the following order:- “In this connection it is well to remember that the reservations under Article 16(4) do not separate like a communal reservation. It may well happen that some members belonging to say Scheduled Castes get selected in the open competition field on the basis of their own merit, they will not be counted against the quota reserved for Scheduled Castes, they will be treated as open competition candidates.” 2.Keeping in view the above decision the matter has been considered by the Government and it has been decided to amend this department's instructions passed vide No.1257- 2GSI-75/7995 dated 25.3.75 as under:- “If any member/members belonging to Scheduled Castes/ Backward Classes is/are selected in the open competition for direct recruitment on the basis of their own merit, they will not be counted against the quota reserved for Scheduled Castes/ Backward Classes, they will be treated as open competition candidates. However, such candidate should fulfill conditions of eligibility regarding age etc. as are meant for general category candidates.” Thus, in our considered view Rule 3.6(b) of Punjab Civil CWP No.1590/2007 7 Service Rules does not cover circumstances when the posts are advertised in open competition. It would only operate in favour of the reserved candidates when the posts are meant to be filled up in their categories as otherwise, the recruitment rules would make them ineligible being overage for recruitment. In the present case when the posts are filled up by general category candidates then the maximum age limit by virtue of Rule 3.6 (a) is deemed to have been extended to 40 years and when the posts are filled up by candidates belonging to reserved categories while implementing the reservation policy, by virtue of Rule 3.6(b) the age limit would be deemed to have been extended by further five years i.e. 45 years. It is seen that there is no challenge to the aforesaid instructions dated 25.6.1997 (Annexure R- 3/1) and even otherwise the same are not inconsistent in any manner with the provisions of Rule 3.6 of Punjab Civil Service Rules. The said instructions supplement the rules rather than supplanting the rules. It is a settled principle of law as enunciated in Syed Khalid Rizvi and others v. Union of India and others, 1993 Supp. (3) Supreme Court Cases 575 and Suraj Parkash Gupta and others v. State of J&K and others , (2000) 7 Supreme Court Cases 561, that there is no deemed or implied relaxation in conditions of recruitment rules and in the absence of any expressed intention in the provisions of Rule 3.6(b) of the Punjab Civil Service Rules, to lay down that the benefit of five years relaxation in age for the members of the stated reserved categories would be extendable in case they compete against general category/open posts, there cannot be any deemed relaxation in age in their favour when they compete against the general category posts. Petitioner would only be entitled to relaxation of five years in CWP No.1590/2007 8 age for direct recruitment against the posts advertised for Backward Class Category only, to which he belongs. Thus, no fault can be found with the action of the respondents. In view of the above, we find no merit in this writ petition. Accordingly, the same is dismissed with no order as to costs. (Jaswant Singh) Judge 21.1.2008 (Jasbir Singh) joshi Judge