Gujarat High Court
Kapilaben M Patel vs Gujarat on 11 September, 2013
Author: R.M.Chhaya
Bench: R.M.Chhaya
KAPILABEN M PATEL....Petitioner(s)V/SGUJARAT PUBLIC SERVICE COMMISSION C/SCA/13267/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 13267 of 2013 =================================================== KAPILABEN M PATEL....Petitioner(s) Versus GUJARAT PUBLIC SERVICE COMMISSION & 1 Respondent ===================================================Appearance: MS HARSHAL N PANDYA, ADVOCATE for the Petitioner MR PREMAL R JOSHI, ADVOCATE for Respondent(s) No. 1 MR DM DEVNANI, AGP for the Respondent(s) No. 2 =================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 11/09/2013 ORAL ORDER
By way of the present petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
(A) quash and set aside the impugned communication dated 12.8.2013, Annexure-A to this petition and declare that the petitioner is well within the age limit as on the cut of date of 31.12.2011 as prescribed in the advertisement for the post in question or is eligible for age relaxation over and above general age relaxation in view of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, and (B) direct the authorities of Gujarat Public Service Commission to permit the petitioner to appear in the interview scheduled on
2.9.2013, pursuant to the advertisement No: 144/2011-12, and (C) award the cost of the petition, and (D) pending admission and final disposal of this petition, the Honourable Court may be pleased to direct the Gujarat Public Service Commission to permit the petitioner to appear in the interview scheduled on 2.9.2013 pursuant to advertisement No.144/2011-12 subject to outcome of this petition, and/or (E) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case.
The facts which can be culled out from the record of the petition are summed up as under:
That the petitioner possesses educational qualification of Master of Arts (M.A.) in Hindi as well as the petitioner has cleared NET, Ph.D. Fellowship and CCC, etc. Pursuant to advertisement given by respondent No.1-GPSC being Nos.120-147/2011-12 on 01.12.2011 for recruitment to the post of Assistant Professors in the Gujarat Education Service (Class-II) in different branches in the Government Arts, Science and Commerce Colleges, the petitioner, in response to advertisement No.144/2011-12 applied for the post of Assistant Professor in Hindi subject.
That pursuant to the application made by the petitioner, the petitioner was permitted to appear in preliminary examination held by the respondent-GPSC conducted on 23.03.2013. That the respondent-GPSC issued a list of 190 candidates on 10.06.2013 and out of those candidates, 105 candidates were held to be eligible for interview by the respondent-GPSC as per the list published on 08.08.2013. That the petitioner was held to be ineligible for the interview and on making inquiry with the respondent-GPSC the petitioner was informed by communication dated 12.08.2013 that the petitioner is not called for interview because of reason that the petitioner is overage. It bornes out from the record that the date of birth of the petitioner is 06.02.1975 hence, as per the cut-off date prescribed by the respondent-GPSC being 31.12.2011 i.e. the last date of making application, the age of the petitioner was 36 years 10 months and 25 days on that date. It is contended that the petitioner being a female candidate, five years age relaxation is available to the petitioner. That at present the petitioner is working as Vyakhyata Sahayak in the Government college on fixed salary on contract basis since 2008. That as per the age limit as prescribed in the advertisement by the respondent-GPSC for the post in question is 30 years. It is contended that the petitioner, being a female candidate, over and above age relaxation of five years, the petitioner being in government service, is entitled to further age relaxation as provided in Rule 5-A(1) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 (the Rules, 1967).
It is also contended that as such the advertisement in question is issued almost after a period of 13 years and in past age limit for such post was prescribed as 35 years, including recruitment of ad hoc basis and, therefore, considering the fact that the petitioner is serving in the State Government that too in the same field, the petitioner is entitled for further age relaxation over and above the general age relaxation of five years. That the petitioner has filed representations to the authorities, however, no reply is given to the same. That special powers are given by the authorities under the Rules 1967, however, the same has remained only on papers and are not implemented.
This Court on 26.08.2013 issued notice making it returnable on 30.08.2013.
Heard Ms.Harshal N. Pandya, learned advocate for the petitioner, Mr.Premal Joshi, learned advocate for the respondent-GPSC, and Mr.D.M.Devnani, learned advocate for respondent-State.
Ms.Harshal N. Pandya, learned advocate for the petitioner, has reiterated the contentions which are raised in the petition and it is submitted that as per the averments made in the petition, the petition deserves to be allowed as prayed for.
No other or further averments are made on behalf of the petitioner.
Mr.Premal Joshi, learned advocate for the respondent-GPSC, has submitted that the entire petition is based on the premise of the provisions of Rule 5-A(1) of the Rules, 1967. It is pointed out that as far as the post in question is concerned, it is governed by the Assistant Professor in the Government Arts, Science and Commerce Colleges in Gujarat Educational Service, Class-II, Recruitment Rules, 2011 (the Rules 2011). It is pointed out that the Rules 2011 have been framed in exercise of powers conferred by the Proviso to Article 309 of the Constitution of India. It is further pointed out that Proviso to Rule 3(a) of the Rules 2011 provides that upper age limit may be relaxed in favour of a candidate who is already in service and the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. However, by subsequent notification dated 04.06.2011 the said Proviso has been deleted (i.e. by the Assistant Professor in the Government Arts, Science and Commerce Colleges in Gujarat Educational Service, Class-II, Recruitment (Amendment) Rules, 2011) and, therefore, the petitioner is not entitled to any age relaxation as the amended Rules, 2011 do not provide for the same. Relying upon the judgment rendered by this Court on 18.04.2011 in the case of Ramilaben M. Patel Vs. Gujarat Public Service Commission, (in Special Civil Application No.7 of 2011), it is submitted that as per the ratio laid down therein even on that count the petitioner is not entitled for any age relaxation and, therefore, it is submitted that the petitioner is not entitled for any of the reliefs prayed for in the present petition.
Mr.D.M.Devnani, learned advocate for respondent-State, has adopted the arguments made by Mr.Premal Joshi, learned advocate for the respondent-GPSC.
Considering the submissions made by the learned counsel for the respective parties, it appears that a composite advertisement was given by the respondent-GPSC on 01.12.2011 and the last date prescribed was 31.12.2011 and as far as the post of Hindi Assistant Professor is concerned, the same is advertised by advertisement No. 144/2011-12. The contention as regard age relaxation made by the petitioner is in view of the provisions of the Rules 1967, whereas, as pointed out by Mr.Premal Joshi, learned advocate for the respondent-GPSC, the post for which the petitioner has applied is governed by the aforesaid Rules known as the Assistant Professor in the Government Arts, Science and Commerce Colleges in Gujarat Educational Service, Class-II, Recruitment Rules, 2011. Relevant Rules which are published on 19.03.2011, more particularly Rules 1, 2 and 3(a) thereof read as under:
1. These Rules may be called the Assistant Professor in the Government Arts, Science and Commerce Colleges in Gujarat Educational Service, Class-II, Recruitment Rules, 2011.
2. Appointment to the post of Assistant Professor, in the Government Arts, Science and commerce Colleges in Gujarat Educational Service, Class-II, shall be made by direct selection.
3. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall--
(a) not be more than 30 years of age:
provided that the upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 It is an admitted position that by a subsequent notification dated 04.06.2011 Proviso to Clause (a) in Rule 3, came to be deleted (i.e. by the Assistant Professor in the Government Arts, Science and Commerce Colleges in Gujarat Educational Service, Class-II, Recruitment (Amendment) Rules, 2011). As observed hereinabove, the advertisement in question was published on 01.12.2011 and, therefore, the Proviso to Clause (a) in Rule 3 of the Rules 2011 came to be deleted before the advertisement in question was published and hence, on the date of advertisement the Proviso did not exist and, therefore, Rule 5-A(1) of the Rules 1967 cannot be made applicable in case of the petitioner. Hence, no age relaxation as per the Rules 1967 can be granted to the petitioner.
In the advertisement itself the respondent- GPSC has clearly provided for age relaxation of five years for non-reserved female candidates. As averred by the petitioner, on the date of advertisement, the petitioner was aged about 36 years 10 months and 25 days and even taking into consideration the said provisions in the advertisement, the petitioner would be overage as the age prescribed in the advertisement is not more than 30 years for the post in question.
While considering a similar case for a candidate, who had applied for the post of Lecturer (Class-II) in the discipline of Mathematics, i.e. in the case of Ramilaben M. Patel (supra) this Court has observed in Paragraph No.7 as under:
7. It is undisputed that the date of birth of the petitioner is 01.06.1968 and that as on 20.03.2010, which was the last date for receipt of applications, she was 40 years, 8 months and 17 days of age. As per the advertisement, the upper age limit for the post is 35 years. The advertisement also stipulates that women candidates belonging to the Unreserved (General) category shall be entitled to 5 years' relaxation of age. After availing of the said relaxation, the petitioner crosses the age limit of 40 years on the last date for receipt of application by 8 months and 17 days. It is an admitted position that the petitioner is overage even after getting the benefit of 5 years' relaxation in age. The case of the petitioner is that she is entitled to further relaxation in age in view of the provisions of sub-rule (5) of Rule 8 of the unamended Rules and the second proviso thereto. In spite of the fact that sub-rule (5) of Rule 8 has been amended by Government Notification dated 23rd December, 1998, and the said amendment has been pointed out to him during the course of hearing, the learned advocate for the petitioner has insisted on making submissions on the basis of the unamended provision. On perusal of the unamended and amended provisions, it is clear that apart from certain minor changes in language and structure, there is no substantial change in the meaning, import or purport of the said provision, or the first and second provisos thereto. However, for the sake of clarity, both the provisions are being reproduced hereinbelow, though reference shall henceforth be made to the amended provision. Rule 8(5) of the Gujarat Civil Services (Classification and Recruitment [General]) Rules, 1967, and the first and second proviso thereto, as it stood prior to amendment vide Government Notification dated 23.12.1998 is as below:
8.
Conditions as to prescribed qualifications:
**** **** **** **** (5) Notwithstanding anything to the contrary, contained in any rules for the time being in force relating to the recruitments to any service or post the upper age limit for the purposes of recruitment prescribed in such rules shall not apply to a candidate who is already in Gujarat Government Service either as a permanent Government Servant or as a temporary Government Servant officiating continuously for six months in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servants and was within the age limit prescribed for the post at the time of his first appointment in Government Service:
Provided that such upper age limit shall apply to such candidate in a case where recruitment to a post or service is done through competitive examination or by direct selection for which experience has not been prescribed as one of the qualifications for such post:
Provided further that where a post requiring a medical, engineering or veterinary or agricultural degree or diploma as a qualification is to be filled by direct selection through the Public Service Commission a Government Servant who was within the age limit when appointed to such, post shall, if he subsequently applies for any such post be entitled to relaxation from the application of the upper age limit prescribed as aforesaid, even if experience has not been prescribed as one of the qualifications for such post.
The amended provision reads as under:
8.
Condition as to Prescribed qualifications:-
**** **** **** **** (5) Notwithstanding anything to the contrary contained in any rules for the time being in force relating to recruitments to any service or post a candidate who is already in Gujarat Government Service, either as a permanent or a temporary servant officiating continuously for six months or more in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servant applied thereafter, for the post under advertisement (hereinafter referred to as the concerned post ) the upper age limit prescribed for the purpose of recruitment in such rules, shall not apply to him provided he had not crossed the age limit prescribed for the concerned post at the time of his previous appointments;
Provided that the upper age limit shall apply to a candidate whose recruitment to a post or service is made through competitive examination or by direct selection for which experience has not been prescribed as one of the qualification for concerned post;
Provided also that where a Government Servant appointed to a post requiring a Medical, Engineering, Veterinary or Agriculture degree or diploma as one of the qualifications, he shall be entitled to relaxation of the upper age limit prescribed for the concerned post provided he had not crossed the age-limit prescribed for the concerned post at the time of his previous appointments even if experience has not been prescribed as one of the qualifications for such post.
It is an admitted position that in the instant case the recruitment is for the post in question is for competitive examination or by direct selection for which the First Proviso of Rule 8(5) of the Rules 1967 would apply and, therefore, the petitioner is not entitled to any further age relaxation than what is provided in the advertisement. As observed hereinabove, cumulatively in view of the fact that the Proviso to Clause (a) of Rule 3 of the Rules 2011 stands deleted the petitioner is not entitled for any further age relaxation as well.
Petition therefore fails and is dismissed. NOTICE discharged. There shall be no order as to costs.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Page 12 of 12