Madhya Pradesh High Court
Radheshyam Solanki vs The State Of Madhya Pradesh on 6 August, 2014
Page no 1
W.A. Nos. 652/2014, 653/2014 and 654/2014
06/08/2014
Mr. L.C. Patne, learned counsel for the
appellants.
Heard.
This common order will dispose of the aforesaid
Writ Appeals, which arose out of the common order dated
15th of May, 2014 passed in different writ petitions, but
basically holding that all those who at the time, when the
issue of forwarding their names for training in respect of
Assit. Veterinary Field Officer arose, had crossed the upper
age limit of 50 years, whereas those who were less than 50
years of age, were directed to be sent.
2 It is against the aforesaid order, present writ
appeals have been filed as it is a stand of the appellants that
initially when they approached the Central Administrative
Tribunal ( in short " CAT" ) , an assurance was given by the
respondents that as and when, decision will be taken for
sending the incumbent for training, the case of the appellants before the Central Administrative Tribunal would be considered on priority basis.
3 It is also the case of the appellants that the aforesaid assurance of the respondents continued during the proceedings undertaken by the appellants for issuance of Page no 2 contempt. However, it is submitted that despite the aforesaid assurance, the respondents had not complied with the same. It is also submitted that at the time when initial order was passed by the CAT, the appellants were fit for being sent to training, but later on, on the basis of amended Rules, they have been deprived of the aforesaid.
4 We have heard the learned counsel for the appellants and have perused the impugned order.
5 Relevant portion of the impugned order is reproduced hereunder for the sake of reference.
" The petitioner before this Court has filed this present writ petition for issuance of an appropriate writ, order or direction directing the respondents to forward the case of the petitioner for training in respect of Asstt. Veterinary Field Officer.
Contention of the petitioner is that the respondents have fixed the maximum age limit as 47 years as on 1/4/12 which is contrary to the statutory provisions governing the field as contained under the M. P. Veterinary Class III (Non Ministerial) Service Recruitment Rules, 2006 which prescribes the upper age limit as 50 years. Learned counsel for the petitioner has also placed reliance upon the judgment delivered by the apex Court in the case of Y.V. Rangaiah & others Vs. State of A.P. & others [1983 SC 852], P. Ganeshwar Rao & Others Vs. State of A.P. & Others [AIR 1988 SC 2068], P. Murugesan & others Vs. State of T.N. & others [1993 AIR SCW 1021], Page no 3 State of Rajasthan Vs. R. Dayal & others [1997 SCC (L&S) 1631], B. L. Gupta Vs. M.C.D. [1998 AIR SCW 3969], Arjun Singh Rathore and others Vs. B. N. Chaturvedi & others [2007 AIR SCW 6745] and his contention is that in the light of the various judgments delivered by the apex Court, the petitioner is entitled for training even though he has crossed the upper age limit. Reliance has also been placed upon a judgment delivered by the M. P. State Administrative Tribunal, Indore Bench, in O.A.No. 677/1998 decided on 16/3/2001 and contention of the learned counsel for the petitioner is that in the light of the aforesaid judgment, the respondents were required to forward the candidature of the petitioner for training in the next available programme.
On the other hand, learned counsel for the respondent State has drawn attention of this Court towards an order passed in Writ Petition No. 17715 / 2013 wherein in similar circumstances this Court has dismissed a Writ Petition of an employee who has crossed 47 years of age for sending him to AVFO Training. The learned Single Judge in Writ Petition No. 17715 / 2013 has held as under :Writ Petition No. 17715 / 2013
04/12/2013 Shri A. A. Awasthy, learned counsel for the petitioner.
Shri S. S. Bisen, learned Government Advocate for State of M.P., on advance notice.
Petitioner, a class IV employee in the Department of Animal Husbandry, is aggrieved by the action of respondents in detailing his juniors Page no 4 for two years pre-promotion training of Assistant Veterinary Field officer whereas he has been deprived of the same, having crossed 47 years of age (maximum age stipulated for a Class IV employee for being sent for promotional AVFO training).
The Rules which governs the recruitment and other conditions of service, are Madhya Pradesh Veterinary Class III (Non Ministerial) Service Recruitment Rules, 2006.
One of the methods of recruitment to the service is by promotion of members of service as mentioned in column (2) of Schedule IV, which stipulates that regular class IV employees with minimum 5 years of service are eligible for promotion to the post of AVFO.
Rule 14 of the Rules stipulates procedure for appointment by promotion. Sub-rule (2) of Rule 14 of the Rules stipulates that for the promotion of the members of service specified in column (2) of Schedule IV to the post as specified in column (4) thereof, the eligibility of candidate, selection process and appointment by promotion shall be in accordance with the provisions as specified in the M.P. Public Services (Promotion) Rules, 2002.
That though for direct recruitment the maximum age fixed under Rule 8 for appointment of AVFO is 35 years and with relaxation to various class of persons mentioned therein the maximum age fixed is between 38 years to 45 years. However, in case of departmental personnel the maximum age fixed is 47 years.
The petitioner is past 47 years (he is 49 years of age). He fails to Page no 5 establish that the maximum age relaxable is 50 years for appointment to the post of AVFO. Having so failed to establish, no relief can be granted. Interim order passed by learned Single Judge of Indore Bench in Gautam Bodade Vs. State of Madhya Pradesh : Writ Petition No. 9683 / 2013 (s) is of no assistance to the petitioner because while granting provisional permission, the rule position has not been observed, as would have a binding precedent.
In the result, the petition fails and is dismissed. No costs.
This Court has very carefully gone through the recruitment Rules which are also on record as Annexure P/7. Learned counsel for the petitioner has himself drawn attention of this Court towards Schedule IV (under Rule 14) and the same reflects that the maximum age limit is 50 years for the purposes of promotion. In the present case, the petitioner's date of birth is 2/11/1962. He has completed 50 years on 2/11/2012. The notification for sending persons on training has been issued on 22/6/2013 meaning thereby, the petitioner was certainly overage ie., more than 50 years of age on the date the notification was issued.
This Court has very carefully gone through the earlier judgment delivered in OA NO. 677/1998 and it nowhere says that a person has to be sent on training ignoring the statutory recruitment Rules. This Court does not have power to amend the recruitment Rules or to relax the recruitment Rules which are statutory in nature. As admittedly, the petitioner has completed 50 years on 2/11/2012, this Court Page no 6 does not find any reason to grant any relief to the petitioner in the light of the recruitment Rules of the year 2006 which are on record.
Resultantly, the admission is declined. So far as W.P.No. 1038 / 2014 is concerned, the petitioner is not at all a regular class IV employee. The return reflects that he is an employee serving under the Work Charged & Contingency Paid Establishment. The recruitment Rules governing the field, as amended vide notification dt. 4/1/12 categorically provides under Schedule IV (Rule 14) that an employee under the regular establishment holding class IV post is entitled for training and the maximum age limit is 50 years. The petitioner is admittedly not holding a class IV post under the regular establishment and, therefore, he is not entitled for any relief of whatsoever kind. The petition is accordingly dismissed.
As regards W.P.No. 9683 / 2013 is concerned, the petitioner before this Court was certainly less than 50 years of age on the date names were recommended by the respondents for AVFO training ie., on 22/6/13 and the date of birth of the petitioner is 4/11/1963. The recruitment Rules governing the field known as M. P. Veterinary Class III (Non Ministerial) Service Recruitment Rules, 2006, in Schedule 4 (Rule 14), provides the upper age limit to be 50 years and the petitioner was certainly within 50 years of age and, therefore, as he was within age, W.P.NO. 9683/2013 stands allowed. He has already been sent for Training on account of an interim order passed on 23/8/13 and, therefore, he will be entitled for all Page no 7 consequential benefits after successful completion of the Training, in accordance with law.
The Writ Petitions are accordingly disposed of.
6 In nutshell, while disposing of the aforesaid Writ Petitions, which are the subject matter of the present Writ Appeals, learned Single Judge having taken note of the earlier order passed by the CAT as well as other Benches, has taken a consistent decision that at the time, when the names were sought to be forwarded, those who were not eligible, their names have not been sent, but those who were eligible, are required to be sent for training.
7 It is not disputed by the appellants that at the time when the decision was taken to send the names of the incumbent for the purpose of Patwari training, present appellants had already completed the age of 50 years, which according to the Rules, was of higher age and no one above that age, could have been sent.
8 It is pointed out some of the persons, whose names has been sent, but junior to the appellants, but admittedly, they were below the age of 50 years.
9 Having gone through the impugned order and having given our thoughtful consideration to the rival submissions of the learned Single Judge and having also gone Page no 8 through the judgments cited, we are of the considered view that assurance given earlier were based upon the Rules which permitted, referring the names to the incumbent, who would have fallen within the criteria framed by the Rules, but at the time when the names have been forwarded, the names of the appellants who have not been able to find place in the list of the candidate on the basis of having attained the age more than 50 years, have not been forwarded.
10 It is like a person having retired from the service, if a person is superannuating, he cannot say, he should be given benefit as given to his junior, who are still in service.
11 We are therefore, of the considered view that merely because, assurance was given or an order was passed by the CAT holding that as and when, a list is forwarded for the training purpose, those who are fit as per the Rules would be considered and their names will be sent for training, would not mean that when the list was actually forwarded, those who did not fulfill the Rules, would also fall within that criteria. We therefore, do not find any merits in the present Writ Appeals. Consequently, the same are dismissed.
C c as per rules.
(SHANTANU KEMKAR) ( M.C. GARG )
JUDGE JUDGE
amol