Rajasthan High Court - Jodhpur
Om Prakash vs State & Ors on 25 May, 2011
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
1. (S.B. Civil Writ Petition No.3506/2011)
Bhagwan Singh Rathore & Another
Vs.
State of Rajasthan & Others
2. (S.B. Civil Writ Petition No.3520/2011)
Rajender Kumar
Vs.
State of Rajasthan & Others
3. (S.B. Civil Writ Petition No.3255/2011)
Vikas Grover
Vs.
State of Rajasthan & Others
4. (S.B. Civil Writ Petition No.3391/2011)
Shishpal Singh & Others
Vs.
State of Rajasthan & Others
5. (S.B. Civil Writ Petition No.3089/2011)
Dalveer Singh & Another
Vs.
State of Rajasthan & Another
6. (S.B. Civil Writ Petition No.2908/2011)
Om Prakash
Vs.
State of Rajasthan & Others
7. (S.B. Civil Writ Petition No.2971/2011 (DR-J))
Kesa Ram Ankiya
Vs.
State of Rajasthan & Others
2
8. (S.B. Civil Writ Petition No.3540/2011)
Chandraveer Singh Bhati
Vs.
State of Rajasthan & Others
9. (S.B. Civil Writ Petition No.3317/2011)
Kailash Dan
Vs.
State of Rajasthan & Others
10. (S.B. Civil Writ Petition No.3089/2011)
Dalveer Singh & Another
Vs.
State of Rajasthan & Another
11. (S.B. Civil Writ Petition No.4238/2011)
Vishal Hingorani
Vs.
State of Rajasthan & Others
12. (S.B. Civil Writ Petition No.4286/2011)
Roop Singh Shekhawat
Vs.
State of Rajasthan & Others
13. (S.B. Civil Writ Petition No.4307/2011)
Suresh Kumar & Another
Vs.
State of Rajasthan & Others
14. (S.B. Civil Writ Petition No.4317/2011)
Manoj Kumar Sharma
Vs.
State of Rajasthan & Others
Date of Order May 25, 2011
3
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
Reportable
Mr. Tanwar Singh Rathore/Mr. M.R. Choudhary/Mr. R.S.
Choudhary/Mr. B.B. Singh/Mr. T.S. Rathore/Dr. P.S.
Bhati/Mr. Sukesh Bhati/Mr. Ashvini Swami/Mr. Narpat
Singh/Mr. Devesh Bohra/Mr. Deepak Nehra/Mr. A.D.
Charan, Advocates appearing on behalf of petitioners in
the writ petition.
Mr. Sandeep Bhandawat, Government Counsel.
BY THE COURT :
In all the above writ petitions, common question of law is involved, therefore, all these petitions are decided by this common judgment. For the sake of discussion, facts narrated in S.B. Civil Writ Petition No.3506/2011 are taken into consideration.
In all the above writ petitions, the petitioners are claiming age relaxation for their admission to the Patwar Training School as well as for appointment on the posts of Patwari after completion of training. As per facts of the case, the posts of Patwari can be filled in in accordance with the procedure laid down in the Rajasthan Land Revenue (Land Records) Rules, 1957 (for short, to be called hereinafter as "the Rules of 1957").
As per Rule 4 of the Rules of 1957, there is provision for appointment on the posts of Patwari and as per Rule 4 4
(b), persons who have obtained Patwar School certificate shall be eligible for appointment as Patwari, Additional Patwari and Assistant Office Qanungo; meaning thereby, for appointment on the post of Patwari, the Patwar School certificate is necessary.
Under Rule 273, there is procedure provided for selection of candidates for admission to the Patwar Training School. Under sub-rule (3) of Rule 273, there is provision to hold competitive examination every year at all the district headquarters or at such other places as the Board may decide and age for admission is prescribed in Rule 273 (4) of the Rules of 1957. Under Rule 273 (4)
(iii), relaxations in the age are provided.
The petitioners applied pursuant to the advertisement dated 07.03.2011 issued by the Board of Revenue for Rajasthan, Ajmer for admission to the Patwar Training School; but, due to crossing the maximum age limit the petitioners have become over-aged for admission to the training course as per advertisement Annex.-3 dated 07.03.2011. In these writ petitions, the petitioners are claiming age relaxation of three years in the maximum age limit of 30 years prescribed in the advertisement because since 2008 no competitive examinations were conducted for admission in the training course. The 5 petitioners are claiming age relaxation on the following grounds :
A. As per the petitioners, respondent Board of Revenue is under obligation to conduct the competitive examination every year but no competitive examination for admission to the Patwar Training School has been conducted, so also, no appointment on the post of Patwari has been made for last three years. Argument of the petitioners in the writ petitions is that now after three years the respondent Board of Revenue has issued notification for conducting the competitive examination for admission in the Patwar Training School; but, in fact, admissions were to be made every year as per Rule 273 (3) of the Rules of 1957, therefore, the respondents are under lawful obligation to grant relaxation of three years in the upper age limit.
B. Learned counsel for the petitioners invited attention of this Court towards notification issued by the Department of Personnel, A/Group-II, Government of Rajasthan dated 23.09.2008 whereby the State Government granted age relaxation of three years by way of amendment in various service rules for the reason that direct recruitments on various posts 6 were not made year-wise or in time and there was delay in filling up various posts by direct recruitment. Said notification has been filed in S.B. Civil Writ Petition No.3520/2011. Learned counsel for the petitioners submits that there is no lack on the part of the petitioners who have become over-aged for the reason that Board of Revenue, Ajmer did not conduct competitive examination year-wise, therefore, the petitioners are claiming age relaxation of three years in the upper age limit of 30 years on the ground that the State Government itself made amendment in various services rules except in the Rules of 1957 for granting age relaxation of three years in maximum age prescribed. Main argument of learned counsel for the petitioners is that the action of the respondents for not holding competitive examination for admission to the Patwar Training School since 2008 and not granting age relaxation of three years is totally discriminatory and violative of Article 14 of the Constitution of India. C. Learned counsel for the petitioners vehemently argued that once age relaxation has been granted to the qualified aspirants for selection to various posts 7 in the other services under different service rules, then, it is obvious that respondents are under legal obligation to grant same relaxation of age of three years to all the candidates who became over-aged due to non-conducting the competitive examination year-wise as per Rule 273 (3) of the Rules of 1957. The petitioners cannot be deprived from the opportunity to participate in the competitive examination for admission to the Patwar Training School and for appointment on the post of Patwari for the reason that the respondents did not conduct the competitive examination year-wise. D. Learned counsel for the petitioners invited my attention towards judgment of the Division Bench of this Court in the case of Prakash Chand & Others Vs. State of Rajasthan, reported in 1990 (2) RLW 582, in which, same controversy with regard to age limit was decided vide judgment dated 14.09.1990. E. Learned counsel for the petitioners submits that all the petitioners are possessing requisite academic qualification and other eligibility except the age for the purpose of appearing in the competitive 8 examination for admission to the Patwar Training School and once the State Government has already granted relaxation in other service rules by amendment in the event of non-holding competitive examination in previous years, the same benefit is to be given to the petitioners for relaxation of upper age limit.
On the aforesaid ground, it is prayed by the petitioners that respondent State may be directed to grant age relaxation of three years because from the year 2008 no competitive examination for admission to the Patwar Training School has been conducted by the respondents and after three years the respondents are conducting the competitive examination.
In these cases, Mr. Sandeep Bhandawat, Standing Counsel for the Revenue Department was directed to accept notice on 22.04.2011 and he was directed to file reply. When the matter was again listed in the Court on 17.05.2011, it was informed by Mr. Bhandawat that although information has been sent by him to the Registrar, Board of Revenue repeatedly but they are not giving any heed to the information given by him nor they are submitting the factual report in the matter.
In the aforesaid circumstances, last opportunity was 9 given to the respondents to give information with regard to factual aspect of the matter whether any examination has been conducted for training and appointment on the post of Patwari in the last three years or not.
Today, these matters are listed in the Court and learned counsel for the Revenue submitted photo stat copy of communication dated 18.05.2011, in which, it is accepted by the respondents that last admissions to the Patwar Training School were made vide notification dated 11.07.2008; meaning thereby, it is admitted position of the case that after 2008 no competitive examination has been conducted by the Board of Revenue for the purpose of admitting candidates to the Patwar Training School as well as for appointment.
Learned counsel appearing on behalf of the respondents submits that as per Rule 273 (3) of the Rules of 1957 the respondents are not required to conduct competitive examination for admission to the Patwar Training course or issue advertisement every year for conducting the competitive examination because sub-rule (3) of Rule 273 is not mandatory in nature, therefore, no direction can be given for relaxation in the upper age limit. Learned counsel for the respondents invited my attention towards judgment of the Supreme Court, reported in 10 (1997) 6 SCC 614, Dr. Amilal Bhat Vs. State of Rajasthan & Others, and, submits that the petitioners cannot claim age relaxation as a matter of right and, therefore, all these writ petitions may be dismissed.
After hearing learned counsel for the parties, I have perused the pleadings as well as relevant provisions of the rules.
The post of Patwari can be filled in in accordance with the procedure laid down under Rule 4 of the Rules of 1957. According to Rule 4, only such persons who have obtained Patwar School Certificate become eligible for appointment as Patwari, additional Patwari or Assistant Office Qanungo; and, for acquiring the Patwar School Certificate the candidate is required to obtain patwar training from the Patwar Training School of every District.
Under Rule 273, there is complete procedure provided for selection of the candidates for admission to the School by conducting competitive examination by the Board of Revenue. Sub-rule (3) of Rule 273 of the Rules of 1957 provides that the competitive examination shall be held ordinarily every year at all the District Headquarters or at such other places as the Board may decide. Similarly, under Rule 273 (4) (iii), there is provision for minimum and maximum age limit and, according to that, 11 the candidate should have attained the minimum age of 18 years and must not have attained 30 years of age which is evident from the advertisement Annex.-3 to the writ petition. Relevant part of the advertisement dated 07.03.2011 prescribing the age limit in the advertisement reads as under :
""6. आय-
द न क 1-1-2012 क 18 वर क आय प प कर लन च द य और 30 वर क आय प प न करन च द य लककन:-
1- अध कतम आय स म म!-
(क)अनसध" चत ज तत/अनसध" चत जन ज तत/प&छड वर/पवशर प&छड वर क &रर अभयध-य. क ज र जस- न क मल " तनव स ,0 क म मल म! 5 वर क छ"ट ज यर ।
(ख) स म नय वर क मद ल अभयध-य. क म मल म! 5 वर क छ"ट ज यर ।
(र) अनसध" चत ज तत/अनसध" चत जन ज तत /प&छड वर/पवशर प&छड वर क मद ल अभयध-य. क ज र जस- न क मल " तनव स ,0 क म मल म! 10 वर क छ"ट ज यर ।
2- अध कतम आय स म उस भत " &"व क0 क म मल म! ल र" न र जजसन सज ममलन स &व " सरक र क अ न ककस & &र सस- ई आ र (Sibstanitive)&र सव क - और ज सज & न स &"व तनयम. क अ न तनयक; क & त - ।
3- अध कतम आय क स म म! ककस ऐस भत " &व
" क0 क म मल म!
उसक द र भ र रई सज क अवध क बर बर क ल तक क ढ ल
ज एर , ज कक सज ममलन स & ल अध क आय क न आ - और
तनयम. क अ न तनयक; क मलए य गय - ।
4- ज वयक; &टव र क & &र अस- ई तDर स तनय; -, उन ! आय क स म क भ तर समझ ज एर यद व प-म ब र तनयक; क समय आय क स म म! - यदप& उन .न &र क क मलय तनजHत क रई द न क क आय स म & र कर ल और अरर य प-म तनयक; क समय उसक य गय -, त उन ! अवसर प न ककय ज यर।
5-क0डट पमशकक. (Cadet Instructors) क उनक व सतपवक आय म! स उतन समय घट न क अनमतत ज वर जजतन समय उन .न एन.स .स .क सव म! बबत य 0 और यद उसक &ररण म सवर& उनक आय उ&य;
तन ररत अध कतम आय स जय न ई ।
6- र जय सव म! सस- ई (Sibstanitive) तDर &र क यरत कमच ररय. क मलय अध कतम आय स म पततय र &र क म! पवश क मलय 42 वर र।
7-र जस- न मसपवल सव (भत " &"व स0तनक क आमलन) तनयम,1988 क 12 तनयम 6 क प व न नस र भत " &"व स0तनक. क म मल म! अध कतम आय स म 502 वर र &रनत स0नय क ल / व र चक य क ई अनय उचच पवशर य गयत रक. क श म! उचचतम आय स म 2 वर मशध-ल करन य गय र ।
8-&व" Q अफ क क कतनय , तज तनय , यर ड एव जज य र श. स सव श लDटन व ल वयक;य. क म मल म! क ई आय स म न र।
9.द न क 1-3-1953 क य उसक ब 29-2-1977 तक वम और श लक स सव श लDटन व ल वयक;य. क मलए ऊU&र बत ई रई अध कतम आय 45 वर तक मशध-ल र और अनसध" चत ज तत/ अनसध" चत जनज तत क वयक;य. क मलय य मशध-लत 5 वर तक और ज यर ।
10- पव व ओ और पवतछनन पवव मद ल ओ क म मल म! क ई आय सम न र।
स&ष करण- पव व मद ल क म मल म! उस सकम प ध क र स अ&न &तत क मतX य क पम ण &त पसतत करन र त- पवतछनन पवव मद ल क म मल म! उस पवतछनन पवव क सब"त पसतत करन र ।"
Although no reply has been filed by respondents in these writ petitions inspite of granting opportunity but, learned counsel for the respondents Mr. Bhandawat while submitting photo stat copy of communication issued by the Secretary, Land Records, Board of Revenue, Ajmer dated 18.05.2011 admitted that last appointments on the posts of Patwari were made in the year 2008. The said communication dated 18.05.2011 runs as under :
" "र जस- न सरक र
र जसव मणडल र जस- न, अजमर
कम क:र म/भ." अ./&र क /&-226/10/5782 द न क 18-5-
2011
पवशर ध क र
उचच नय य लय ज &र
र जस- न।
13
पवरय: &टव र पततय र &र क क सच
" न क सब म! ।
म य,
उ&र ; पवरय नतरत लख 0 र जसव मणडल र जस- न अजमर न &टव ररय. क पततय र &र क क भतQ त र जस- न ल क सव आय र क अभय-न द न क 07-07-2008 क पपरत क - , जजसक कम म! आय र द र &टव र पततय र &र क त 1500 & . त पवजतप द न क 11-07- 2008 क ज र क - ।
उ; पवजतप क कम म! आय र द र पततय र &र क द न क 28- 02-2009 क आय जजत कर &ररण म द न क 21-4-2009 क घ परत ककय रय - ।
मणडल द र आय र स प प सफल अभय ध-य. क चररत सतय &न क ज च &मलस पवभ र स करव न क ब पमशकण द न क 29-03-2010 स 28-12-2010 तक र जय क पवमभनन &टव र पमशकण श ल ओ म! द ल य रय व &र क &ररण म द न क 07-01-2011 क घ परत ककय रय 0 सफल अभय ध-य. क जजल आवटन द न क 07-01-2011 क ककय रय 0।
र जय सरक र क अध सच " न द न क 24-12-2010 क कम म! र जसव मणडल र जस- न, अजमर द र द न क 07-03-2011 स &टव र पमशकण श ल ओ म! पवश क मलय 1984 &टव र & . त स भतQ &टव र पततय र &र क -2011 क पवजतप ज र क रई। जजसम! प -न &त क अजनतम ततध- द न क 15.06.2011 तन ररत 0 ।
भव य एस.ड .
सधचव (भ." अ.) र जसव मणडल र जस- न, अजमर"
In view of the aforesaid, it is abundantly clear that for last three years no competitive examination has been conducted for admission to the Patwar Training Course by the Board of Revenue and no appointment has been made on the post of Patwari after 2008; meaning thereby, as per sub-rule (3) of Rule 273, competitive examinations were not held every year nor any recruitment was made on the 14 post of Patwari against the posts occurred in last three years. The State Government is not conducting selection for for some other posts last many years, therefore, the State Government issued notification dated 23.09.2008 whereby amendment was made in the various service rules and following proviso was added :
"If a candidate would have been entitled in respect of his/her age for direct recruitment in any year in which no such recruitment was held, he/she shall be deemed to be eligible in the next following recruitment if he/she is not overage by more than 3 years."
The above amendment has been made in as many as 72 service rules of the State framed by the State Government in exercise of power under Article 309 of the Constitution of India; meaning thereby, when the State Government is of the opinion that in the event of non-conducting of selection process or for the reason that vacancies are not being filled in in particular year, relaxation in maximum age should be given to the candidates who were eligible and did not get the chance to compete due to non-advertisement of the vacancies or non-conducting the examination and for that reason notification dated 23.09.2008 was issued and relaxation of age by three years has been 15 granted to the candidates who were aspirants to compete for selection on various posts enumerated in 72 service rules of the State, which is evident from notification dated 23.09.2008.
In the case of Prakash Chand (supra), the Division Bench of this Court made the following adjudication :
"23. However, once we have held that there is an obligation to make yearwise determination of vacancies for direct recruitment as well as promotion, the competent authority cannot avoid this responsibility by sheer inaction or omission and failure on the part of the competent authority cannot be used as a basis for denying eligibility to those who are eligible in a particular year but becomes ineligible on account of absence of determination of vacancies on yearly basis. So far as the promotion quote posts are concerned, all problems regarding eligibility etc. are solved in view of the provisions contained in Rule 9 (2) of 1974 Rules and Rule 10 (2) of 1989 Rules. For direct recruitment quota, we have to take notice of rule 9 (1) and particularly, Clause (c) of 1974 Rules and Rule 10(1)(c) of 1989 Rules.
We are of the view that the vacancies for direct recruitment must also be determined on yearly basis and efforts should be made to fill those vacancies during the course of the years. After determination of vacancies, the same shall be advertised immediately or within reasonable time, so that the candidates 16 who are eligible, can apply. The process of selection may be completed at a subsequent point of time. In that event, the disputes relating to eligibility with reference to age and qualifications would be obviated. For the subsequent years, the same very process can be repeated. After the vacancies of different years are advertised the process of selection shall be held separately and panel shall be drawn separately, so that the charge of clubbing the vacancies may also not be levelled against the appointing authority.
If, on account of administrative
difficulties, vacancies for direct
recruitment cannot be filled in for a particular year, the candidates who are within the age limit with reference to the vacancies of a particular year must be treated as eligible even if the selection is held subsequently."
Upon perusal of the above adjudication, it is abundantly clear that it has been held by the Division Bench that if on account of administrative difficulties vacancies for direct recruitment cannot be filled in in particular year, the candidates who were within age limit with reference to the vacancies of particular year must be treated as eligible even if selection is held subsequently.
In the case of Amilal Bhat (supra), Hon'ble apex Court has held that power of relaxation in age is 17 required to be exercised in public interest and wholesale relaxation is not required to be granted especially when there is no allegation of mala fide in connection with delay in issuing the advertisement. The Supreme Court, however, made it clear that power of relaxation is not completely barred.
I have examined the present controversy in the light of the judgment rendered by the Supreme Court in Amilal Bhat's case (supra). In my opinion, the State Government also felt it necessary to grant age relaxation by amending various service rules vide notification dated 23.09.2008 and the petitioners are claiming their right on the same footing for relaxation of three years in upper age limit on account of non- conducting the competitive examination since 2008 for admission to the Patwar Training School. Therefore, when the State Government with open eyes granted age relaxation of three years to the candidates who are aspirants to compete for selection on various posts under different service rules, then, such benefit ought to have been given to the petitioners also but no such age relaxation has been granted for admission in the 18 training course and appointment on the post of Patwari, therefore, the respondents' action is in violation of Articles 14 and 16 of the Constitution of India.
The Board of Revenue informed this Court by way of sending communication dated 18.05.2011 that since 2008 no competitive examination has been conducted, then, obviously right of consideration of all those candidates who have been deprived from consideration to appear in the competitive examination solely on the ground of crossing the maximum age limit has been snatched from them. The respondents are under obligation to grant age relaxation as granted by the State Government vide notification dated 23.09.2008 to the candidates under various service rules.
It is one of the important facts that advertisement has not been issued within reasonable time of the occurrence of the vacancies of the posts of Patwari, therefore, in public interest and looking to the fundamental right guaranteed under Articles 14 and 16 of the Constitution of India, it is incumbent upon 19 the State Government to provide age relaxation to the candidates who are aspirants to be appointed as Patwari in accordance with Rules of 1957. Admittedly, since the year 2008 no process of selection or conducting competitive examination for admission in the Patwar Training School was commenced till issuance of the present advertisement, therefore, in my opinion, the petitioners are also entitled for benefit of age relaxation in upper age limit which is extended by the State Government vide notification dated 23.09.2008 because the petitioners were within age limit in the year 2008 and now petitioners have been deprived from their right of consideration due to the inaction on the part of the Board of Revenue in not commencing the process for conducting competitive examination for last three years.
In public employment it is the duty of the welfare State to provide equal opportunities to the citizens. Not only in this case but in other services also, the State Government has not undertaken process of selection for last three years and due to the inaction 20 on the part of the State Government large number of qualified candidates cross the maximum age limit and, now, they are not having the opportunity to avail their chance to compete for appointment on the post of Patwari and other posts. In my opinion, it is duty of the welfare State to act fairly and conduct examination as per rules within time and, if for any difficulty,it is not possible for the State to conduct the examination within time when the vacancies arose, then, obviously it is the obligatory duty of the State Government to provide age relaxation to all those candidates who become ineligible in the meantime by crossing the maximum age limit prescribed in the rules. Here, in this case, no advertisement was issued for competitive examination for admission in the Patwar Training School and due to that large number of candidates became ineligible having crossed the upper age limit prescribed in the rules but no age relaxation has been given for admission in the Patwar Training School and for appointment on the post of Patwari whereas vide notification dated 23.09.2008 an amendment was made in as many as 72 service rules 21 whereby proviso was added in various service rules for granting age relaxation in respect of those candidates who become over-aged due to not filling up the vacancies in particular year when the candidate was possessing eligibility with reference to age limit.
In this view of the matter, all the above writ petitions are hereby allowed. Respondents are directed to grant age relaxation in the maximum age limit for admission in the Patwar Training School and for appointment on the post of Patwari at par with amendment in other various service rules vide notification dated 23.09.2008 issued by the State Government irrespective of the fact that Rules of 1957 has not been enumerated in the said notification. Accordingly, it is directed that all those candidates who were within age limit as on 01.01.2009, 01.01.2010 and 01.01.2011 they shall be treated within upper age limit for appearing in the competitive examination in pursuance of advertisement dated 07.03.2011 issued by the Board of Revenue and they may be 22 permitted to appear in the competitive examination which is going to be conducted for admission in the Patwar Training School and after declaring successful in the competitive examination for admission they may be granted admission as per their merit and after completion of training, they shall be treated to be within age limit for the purpose of providing appointment on the post of Patwari.
No order as to costs.
(Gopal Krishan Vyas) J.
Ojha, a.