Gujarat High Court
Mukeshbhai vs State on 7 April, 2010
Author: R.M.Doshit
Bench: R.M.Doshit
Gujarat High Court Case Information System
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LPA/604/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 604 of 2010
In
SPECIAL CIVIL APPLICATION No. 3429 of 2010
With
CIVIL
APPLICATION No. 3322 of 2010
In
LETTERS PATENT APPEAL No. 604 of 2010
=========================================================
MUKESHBHAI
MAFATLAL PATEL & 11 - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
RAMNANDAN SINGH for
Appellant(s) : 1 - 12.
MR PRANAV TRIVEDI, AGP for Respondent(s) :
1,
None for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 07/04/2010
ORAL
ORDER
(Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal preferred under Clause 15 of the Letters Patent arises from the order dated 23rd March 2010 made by the learned Single Judge in above Special Civil Application No.3429/2010.
The appellants-writ petitioners are the graduates possessing a Bachelor's Degree in Forestry (B.Sc. Forestry). All appellants passed the Degree Examination in the year 1993. The appellants seek a chance of being considered for appointment as Assistant Conservator of Forests, Class-II or Range Forest Officer, Class-II under the State Government by direct recruitment. Admittedly, the appellants have crossed the upper age limit for such appointment. The appellants, therefore, seek relaxation in the upper age limit prescribed under the relevant rules.
The Gujarat Public Service Commission has published advertisement on 1st March 2010 calling applications from eligible candidates for appointment as Assistant Conservator of Forests, Class-II and Range Forest Officer, Class-II. As stated in the advertisement, the candidate should have, as on 30th March 2008, completed 21 years of age and should not be more than 28 years of age. The requisite education qualification is a degree from recognised university in the subjects of botany, chemistry, geology, maths, physics, statistics, zoology, animal husbandry and veterinary science, agriculture, forestry or engineering or qualification considered equivalent by the State Government. It also provides that as far as practicable, 25% of the vacancies will be filled in by the applicants possessing qualification of B.Sc. Forestry. The appellants, having the qualification of B.Sc. Forestry, approached this Court under Article 226 of the Constitution of India in above Special Civil Application to claim the benefit of relaxation in the upper age limit. The claim has been rejected by the learned Single Judge. Therefore, the present Appeal.
Learned advocate Mr.Singh has appeared for the appellants. He has submitted that the only avenue for employment in Government service for the appellants is appointment in the Forest Department. Since their passing the Degree Examination in the year 1993, it is the first time in the year 2010 the Public Service Commission has invited applications for direct recruitment in Class-II service in the Forest Department. The appellants, having a specialized qualification in Forestry and there being assurance of filling up 25% of the vacancies by the persons possessing degree in Forestry; as in the cases of reservation for other categories, in this category also the State Government ought to have relaxed the upper age limit by five years. The appellants did not have opportunity to Government employment for past 17 years. The appellants, therefore, have become overage. Unless they are given the benefit of relaxation in upper age limit, they have lost chance to government employment forever. In support of his submissions, Mr.Singh has relied upon the judgment in the matter of U.P.State Road Transport Corporation and another v/s. U.P.Parivahan Nigam Shishukhs Berozgar Sangh and others [AIR 1995 SC 1115].
The appointment to Class-II service in the Forests and Environment Department of the State Government is governed by the Assistant Conservator of Forests in Gujarat Forest Service, Class-II Recruitment Rules, 2007 and the Range Forest Officer, Class-II Recruitment Rules, 2008 (hereinafter referred to as the Rules of 2007 and the Rules of 2008 respectively) framed under the proviso to Article 309 of the Constitution of India. Clause (b) of Rule 2 of the Rules of 2007 provides for direct selection on the basis of the result of the competitive examination. Rule 4 provides for eligibility. Clause (a) thereof provides for the age of not less than 21 years and of not more than 28 years. Similarly, the Rules of 2008 provide that a candidate shall not be more than 28 years of age. The Rules of 2007 and the Rules of 2008 are amended under the Government Notifications dated 18th May 2009 to add the following proviso to clause (a) of Rule 3 of the respective Rules :-
Provided that twenty five per cent vacancies of direct recruits shall, as far as practicable, be filled up by appointing candidates who possesses a B.Sc. degree with Forestry as a principal subject.
It is this proviso which is heavily relied upon by Mr.Singh. He has submitted that the above proviso added on 18th May 2009 provides, though not in so many terms, for reservation of 25% of the vacancies of direct recruits for the candidates possessing the qualification of B.Sc. Forestry. The State Government should, therefore, as in case of reservation for other categories of candidates, relax the upper age limit for the candidates possessing degree in B.Sc. Forestry. Mr.Singh has submitted that unless such relaxation is granted, the appellants are not eligible for appointment. Further, the appellants, having a specialized qualification, they are eligible for Government employment under the Forest Department alone. In other words, they are not eligible for any other Government employment.
In the matter of U.P.State Road Transport Corporation and another (supra), the Hon'ble Supreme Court was examining the claim for right to employment put-forth by the apprentice trainees. The Hon'ble Court, after examining the scheme of the Act held, ...The aforesaid provisions are sufficiently indicative of the fact that the training imparted is desired to be result-oriented; and the trainees are treated as akin to employees. Having held thus, the Court issued guidelines to be kept in mind while dealing with the claim of trainees to get employment after successful completion of the training :(1)
Other things being equal, a trained apprentice should be given preference over direct recruits.
For this, a trainee would not be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India v. Hargopal, AIR 1987 SC 1227, would permit this.
If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the concerned service rule. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given.
The concerned training institute would maintain a list of the persons trained year wise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior.
It may first be noted that the appellants are not the apprentices/trainees. They have not received training at the cost of the State. In our view, the above referred observations made by the Hon'ble Supreme Court do not cover the cases like the present one. Further, even in the case of apprentice/trainee the only relaxation that the Court recommended was to the extent of the period of training. The claim for relaxation in the upper age limit by five years is not supported by this judgment also.
Even if we accept the argument of Mr.Singh and allow a five years' relaxation in the upper age limit to the present appellants, none of the appellants will be benefited. As recorded hereinabove, the appellants have obtained B.Sc. degree in the year 1993. Now after 17 years, none of the appellants can be less than 37 years of age i.e. they are age-barred now and will be age-barred after granting five years' relaxation also.
In case we accept the claim of the appellants, that would amount to usurpation of the power of subordinate legislation conferred upon the executive under proviso to Article 309 of the Constitution of India in exercise of power of judicial review under Article 226 of the Constitution of India. The grant of such a relief is clearly beyond the jurisdiction conferred by Article 226 of the Constitution of India.
We do agree that neither the appellants have a fundamental right nor a statutory right to be considered for appointment in Class-II service in the Forest Department. The claim made by the appellants is wholly misconceived.
The Appeal is dismissed in limine. Civil Application stands disposed of.
(M.D.Shah,
J.) (Ms.R.M.Doshit, J.)
/moin
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