Amendments regarding the rules of recruitment would be prospective unless stated otherwise: Rajasthan High Court

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 6646 2021 Anil Kumar Sharma S o Sh. Mohan Lal Sharma Aged About 48 Years By Profession Advocate R o Village And Post Umara Via Khachariyawas Ward No.3 Tehsil Dantaramgarh Distt. Sikar Petitioner Rajasthan High Court Jodhpur through Registrar General State of Rajasthan Through Principal Secretary Government Secretariat Jaipur Respondents For Petitioner(s) Mr. Shiv Charan Gupta HON BLE MR. JUSTICE SANGEET LODHA HON BLE MR. JUSTICE MAHENDAR KUMAR GOYAL th July 2021 Per Hon’ble Mr. Sangeet Lodha J This writ petition has been filed by the petitioner an aspirant for appearing in the competitive examination for Direct Recruitment to the cadre of District Judge against the vacancies belonging to Economically Weaker Section category notified by the respondent Rajasthan High Court vide notification dated 05.01.2021 issued under the Rajasthan Judicial Service Rules 2010 claiming relief in the following Respondents may be directed to provide relaxation in upper age limit by five years for the candidate belonging to EWS reserved category also as has been provided to other reserved category candidates in the matter of direct recruitment to the cadre of District Judge being made in pursuance the notification dated 05.01.2021Respondents may be directed to accept the application hard copy) of the petitioner with required examination fee for direct recruitment to the cadre of District Judge being made in pursuance the notification dated 05.01.2021 iii) Pleased to direct the respondents to consider the petitioner within age limit after giving the benefit of age relaxation and thereby consider him for the recruitment selection and appointment on the basis of his merits in the competitive examination and if found within the merit then recruit and give him appointment with consequential iv) Pleased to declare Rule 33 of the Rajasthan Judicial Service Rules 2010 unconstitutional and struck down Clause 7 of the notification dated 05.01.2021by issuing appropriate order and corrigendum vi) Any other order or direction which this Hon’ble Court deems fit may also be passed in the facts and circumstances of the case in favour of the humble petitioners.” The facts relevant are that the direct recruitment to the District Judge Cadre in the State of Rajasthan is governed by Rules of 2010. Eligibility for direct recruitment to the posts of District Judge Cadre from amongst the advocates is provided under Rule 33 of the Rules of 2010. The High Court under the Rules of 2010 issued an advertisement dated 05.01.2021 inviting applications from the eligible candidates in the prescribed online format for direct recruitment to 60 vacant posts in the cadre of District Judge in accordance with the Rules of 2010. The of Rule 33 the candidate applying for recruitment to the post must have attained age of 35 years and must not have attained the age of 45 years on the first day of January following the last date fixed for receipt of applications Proviso to clause of Rule 33 provides relaxation of five years in upper age limit to the candidates belonging to the Scheduled Castes Scheduled Tribes Other Backward Classes More Backward Classes and Women Candidates. The relevant part of Rule 33 of the Rules of 2010 in force at the time of issuance of the notification for recruitment may be beneficially quoted “33. Eligibility for direct recruitment. For the purpose of direct recruitment under sub rule of Rule 31 applications shall be invited by the Court from those Advocates who fulfil the following conditions of i) must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January following the last date fixed for receipt of the applications Provided that the upper age limit mentioned above shall be relaxed by 5 years in case of candidates belonging to the Scheduled Castes Scheduled Tribes Other Backward Classes “More Backward Classes and Apparently Rule 33 did not provide for relaxation of age in case of candidate belonging to EWS category though the provision for reservation of the vacancies for Economically Weaker of Rule 10 of the Rules of 2010 vide notification dated 21.08.2020 and thus in the advertisement issued the relaxation in age was rightly not provided for EWS category Precisely the case of the petitioner is that when the relaxation in age is provided for Other Reserved Category candidates i.e. the candidates belonging to SC ST OBC MBC and Women categories EWS category could not have been picked up for a different treatment being given particularly when the required amendment providing 5 years relaxation in upper age limit has already been made in relevant recruitment rules governing other State services in the State of Rajasthan Learned counsel for the petitioner submitted that during the pendency of the present petition vide notification dated 30.06.2021 issued by the State Government in consultation with the Rajasthan Public Service Commission and the Rajasthan High Court has already amended Rule 33 of the Rules of 2010 whereby the expression “Economically Weaker Sections” has been inserted in proviso of sub rule of Rule 33 after the expression “More Backward Classes” and before the expression “and Women Candidates” and thus the relaxation in upper age limit stands extended to EWS category as well. Learned counsel submitted that the State Government vide circular dated 07.04.2021 in contemplation of the amendment had directed to defer the recruitment process so as to extend the benefit of the age relaxation to EWS category in the pending recruitment as well where the examination has not been conducted and thus there is no reason as to why the provision providing for relaxation in upper age limit to EWS category should not be made applicable to the 4 SCC 179. 7. We have considered the submissions of the learned counsel and perused the material on record Indisputably vide notification dated 05.01.2021 issued by the respondent Rajasthan High Court under the Rules of 2010 the applications are invited from eligible advocates for direct recruitment to the cadre of District Judge against the vacancies of the year 2019 20 and 2020 21 including the backlog vacancies of Scheduled Castes and Scheduled Tribes of the year from 2011 12 to 2018 19 It is noticed that the provision reserving 10% of vacancies for EWS in the direct recruitment in addition to the existing reservation was incorporated in the Rules of 2010 vide notification dated 21.8.20 but no relaxation in upper age limit was provided for candidates belonging to the said category. Thus apparently the notification inviting applications issued by the respondent not providing for age relaxation to the candidates belonging to EWS category is in conformity with the provisions of Rules of 2010 10. The petitioner has filed the present writ petition seeking directions to the respondent to provide relaxation in upper age 3 SCC 157 the Hon’ble Supreme Court while dealing with the issue regarding retrospective applicability of the amended rules held “11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders and if it further indicates the extent of reservations in favour of various categories the selection of candidates in such a case must be made in accordance with the then existing Rules and government orders. Candidates who apply and undergo written or viva voice test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement unless the advertisement itself indicates a contrary intention. Generally a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest 10 SCC 704 the Hon’ble Supreme Court while dealing with the question regarding applicability of the reservation policy introduced subsequent to issuance of the advertisement inviting application for appointment to the post observed “The short question that arises for consideration in this appeal is whether the Service Commission could ignore the decision to make reservation policy applicable in respect of an appointment to the post which was advertised on 10 1.1990 and the last date for submission of the application was 30 1 1990. The High Court in the impugned judgment is of the view that since appointments had not factually been made the reservation policy would apply. As it transpires the provisions of Section 57 which governs the field did not contain any clause for reservation and Sub sectionof said Section 57 providing for reservation was introduced only on 22 8 1993. In this view of the matter in respect of post advertised for which the process of recruitment had been initiated the reservation policy could not have been made applicable. The impugned judgment of the High Court was therefore erroneous and cannot be sustained. We therefore set aside the impugned judgment of the High Court and hold that the reservation policy pursuant to the amended provision of Subsectionof Section 57 of the Act will not apply to the present case.”In Chanan Ram vs. State of Rajasthan & Ors.:2 WLC 373 the Rajasthan Public Service Commission had issued an advertisement inviting applications for recruitment to the posts of Assistant Directoron 5.11.93 for filling in the vacancies of the year 1986 87 to 1992 93 under the provisions of Rajasthan WLN 122 the issue before a Bench of this Court was as to whether the amendment introduced in Regulation 3.4.1 of the University Grants Commission Regulations 2010 as amended on 11.7.16 extending relaxation of five marks to Other Backward Class category which were earlier available at the graduate and masters level to the candidates of Scheduled Castes Scheduled Tribes and Differently Abled categories would be applicable to the selection process initiated vide advertisement dated 12.1.15 wherein the last date for submitting the application was notified as 27.2.15 which was subsequently extended to 26.3.15 and finally to 31.3.15. The Court while relying upon the decisions of the Supreme Court in P Mahendran and NT Bevin Katti held J SANGEET LODHA) J

Summary: It is well settled that the eligibility qualification for recruitment to the post shall be governed by the rules existing as on the date of the issuance of the advertisement inviting applications and the amendment in the rules if any, unless mentioned otherwise cannot be deemed retrospective. A Division-Bench comprising of Justice Sangeet Lodha And Justice Mahendar Kumar Goyal adjudicating the matter of ANIL KUMAR SHARMA V. RAJASTHAN HIGH COURT (D.B. CIVIL WRIT PETITION NO. 6646/2021) dealt with the issue whether to allow the present writ petition or not. In the present case a writ petition is filed by an an aspirant for appearing in the competitive examination for Direct Recruitment to the cadre of District Judge against the vacancies belonging to Economically Weaker Section (EWS) category, notified by the respondent-Rajasthan High Court vide notification dated 05.01.2021 issued under the Rajasthan Judicial Service Rules, 2010 seeking the relied stated in the judgement. Facts of the case are the direct recruitment to the District Judge Cadre in the State of Rajasthan is governed by Rules of 2010  and  eligibility for direct recruitment to the posts of District Judge Cadre from amongst the advocates is provided under Rule 33 of the Rules of 2010. An advertisement was issued on 05.01.2021 inviting applications from the eligible candidates in the prescribed online format for direct recruitment to 60 vacant posts in the cadre of District Judge in accordance with the Rules of 2010. The particulars of the total vacancies and the vacancies reserved for various categories including the category of EWS were duly notified. As per the notification issued, 6 posts are reserved for EWS category, which include 1 post for women. The candidate applying for recruitment to the post must have attained age of 35 years and must not have attained the age of 45 years on the first day of January following the last date fixed for receipt of applications. Proviso (a) to clause (i) of Rule 33 provides relaxation of five years in upper age limit to the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, More Backward Classes and Women Candidates. The Rule 33 (i)(a) did not provide for relaxation of age in case of candidate belonging to EWS category though, the provision for reservation of the vacancies for Economically WeakerSections was inserted by way of sub-rule (6) of Rule 10 of the Rules of 2010 vide notification dated 21.08.2020 and thus, in the advertisement issued, the relaxation in age was rightly not provided for EWS category. The case of the Petitioner is that when the relaxation in age is provided for Other Reserved Category candidates i.e. the candidates belonging to SC, ST, OBC, MBC and Women categories, EWS category could not have been picked up for a different treatment being given, particularly when, the required amendment providing 5 years relaxation in upper age limit has already been made in relevant recruitment rules governing other State services in the State of Rajasthan. It was contended that during the pendency of the present petition, on 30.06.2021 the notification issued by State Government in consultation with the Rajasthan Public Service Commission and the Rajasthan High Court, has already amended Rule 33 of the Rules of 2010, whereby the expression “Economically Weaker Sections” has been inserted in proviso (a) of sub-rule (i) of Rule 33 after the expression “More Backward Classes” and before the expression “and Women Candidates” and thus, the relaxation in upper age limit stands extended to EWS category as well. It was also submitted that according to the circular of 07.04.2021 in contemplation of the amendment had directed to defer the recruitment process so as to extend the benefit of the age relaxation to EWS category in the pending recruitment as well where the examination has not been conducted and thus, there is no reason as to why the provision providing for relaxation in upper age limit to EWS category should not be made applicable to the recruitment process initiated by the High Court under the Rules of 2010. Learned counsel submitted that in view of the amendment made, the directions deserve to be issued to the respondents to invite the applications from the candidates belonging to EWS category, who are eligible to apply for recruitment to the post availing the age relaxation.