Madhya Pradesh High Court
Smt. Urmila Rajak vs The State Of Madhya Pradesh on 8 July, 2014
Author: Alok Verma
Bench: Alok Verma
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Appeal No : 715 of 2013
Smt. Urmila Rajak
- V/s -
State of MP and other
Present : Hon'ble Shri Justice Rajendra Menon.
Hon'ble Shri Justice Alok Verma.
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Shri Ankit Agrawal, counsel for the appellant.
Shri Rahul Jain, Deputy Advocate General,
for the respondents/State.
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Whether approved for reporting: Yes / No.
ORDER
08/07/2014 Calling in question tenability of an order dated 18/04/2013 passed by the writ Court in W.P.No.7036/2013, this writ appeal has been filed under Section 2(1), of the MP Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005. 2- Appellant was initially appointed as Samvida Shala Shikshak Grade - I (a contract teacher). She worked in the said post for the period of 7 years. She was qualified for appointment on the post of Samvida Shala Shikshak Grade-I. When an advertisement was issued for conducting eligibility test for appointment to the post of Samvida Shala Shikshak Grad e-I, in accordance to the Madhya Pradesh Samvida Shala Shikshak (Appointment and Conditions of Contract) Rules 2005, appellant applied for the same post. However, the appellant is 48 years of age and the maximum age limit as prescribed is only 35 years and 2 Writ Appeal No :: 715/2013 Smt. Urmila Rajak Vs. State of MP and others.
as age relaxation could be granted to a woman candidate like the appellant, she claimed the same and when her application was rejected on the ground that she is overage, a writ petition was filed which was also dismissed on 18/04/2013. Therefore , this writ appeal.
3- Shri Ankit Agrawal, learned counsel for the appellant , invites our attention to the Madhya Pradesh Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract) Rules of 2005, Schedule 2 of 2005 Rules; and, Notes (3) and (5), therefore, are reproduced as under :-
"(3) Women candidates shall have ten years relaxation in maximum age limit in addition to other relaxations.
(5) The candidate who have worked as Samvida Shala Shikshak and who apply fresh for employment as Samvida Shala Shikshak, shall be entitled to relaxation in maximum age limit to the extent of the period, th ey have worked previously as Samvida Shala Shikshak.
On this basis, the relaxation shall be to a maximum of nine years. Provided their contract was not terminated due to their work being found unsatisfactory."
It is submitted by Shri Ankit Agrawal, learned counsel for the appellant, that even though under the statutory provision the maximum age limit prescribed for a woman candidate is 35 years, but under Note (3), reproduced hereinabove, they are granted 10 years relaxation in addition to other relaxation, as is provided in Note (5), which includes a relaxation equivalent to the number of years a candidate has worked as a contract teacher, subject to the maximum of 10 years. It is argued by Shri Agrawal that this provision and relaxation granted under the statutory rule is modified by an executive Circular dated 3.11.2012, which is not permissible. It is further argued by him that fixation of a maximum age of 45 years for a woman candidate and doing away with the relaxation provided under Note (5) renders the Circular dated 3 Writ Appeal No :: 715/2013 Smt. Urmila Rajak Vs. State of MP and others.
3.11.2012 void and inoperative, as it operates contrary to the statutory provision which is not permissible.
4- Learned counsel for the appellant invites our attention to a judgment rendered by a Single Bench of this Court in the case of Anita Jain Badkul Vs. State of MP and another, in W.P. No. 2078/2013 decided on 5.12.2013, to say that a writ court in the said case has held that the Circular dated 3.11.2012 cannot be implemented, as it runs contrary to the statutory rule.
5- Shri Ankit Agrawal, learned counsel for the appellant, argued that the learned Single Judge dismissed the writ petition ignoring all these factors and the reason given for upholding the Circular based on the power available to the State Government under Rule 14 of the Rules of 2005, is not correct. Learned counsel further submits that Rule 14 can only be pressed into operation to fill in the lacunae or ambiguity in the statutory rule and not for modifying the statutory rule itself. 6- Shri Rahul Jain, learned Deputy Advocate General, refuted the aforesaid submissions and it was his contention that once the question of age relaxation is covered by the circular dated 3.11.2012, there is no error in the matter warranting reconsideration. It is submitted by learned Deputy Advocate General that under sub-section (2) of Section 70 of the Panchayat Raj and Gram Swaraj Adhiniyam read with Rule 14 of the Recruitment Rules of 2005, the State Government is entitled to prescribe provision for qualification, method of recruitment, salaries, leave allowances and other conditions of service, including disciplinary matters and as the State Government has exercised this power while issuing the Circular dated 3.11.2012, there is no error in the same.
7- We have heard learned counsel for the parties and perused the records.
8- Under the Recruitment Rules of 2005, statutory provisions are incorporated with regard to the employment and conditions of the contract teacher. Schedule II of this Rule has two Notes appended to it, 4 Writ Appeal No :: 715/2013 Smt. Urmila Rajak Vs. State of MP and others.
whereby age relaxation to a woman candidate is provided. As reproduced hereinabove, under these provisions a woman candidate is entitled to age relaxation of 10 years and it is clearly stipulated under Note (3) that this relaxation in the maximum age limit is in addition to the other relaxation. Under Note (5), another relaxation is provided to all the candidates, who have worked as contract teacher, and it says that a candidate, who has worked as a contract teacher and who applies for fresh appointment under the Rules, shall be entitled to a relaxation in the maximum age limit to the extent of period they have worked previously as a contract teacher. When a woman candidate is held to be entitled to 10 years relaxation in addition to other relaxation and in the other general relaxation when for the work of a Samvida Shala Shikshak done by a candidate certain relaxation is provided, a woman candidate can claim both these relaxations because they are permissible under the Rules. The circular dated 3.11.2012 infact takes away the relaxation available to a woman candidate under Note (5). This is not permissible. Once the statute prescribes various types of relaxation, an executive order cannot be pressed into service for undoing the requirement of the Rule or laying down some condition contrary to the statutory rules. 9- It is a well settled principle of law that when a statutory provision is made, an executive instruction or circular contrary to the same is impermissible. Executive orders and circulars can only fill up the gaps, lacunae or ambiguity in the statutory rule, but they cannot substitute or modify the statutory rule.
10- Once a woman candidate is entitled to relaxation as are provided in the rules referred to hereinabove, the executive instructions cannot take away the relaxation so provided. This is the question which is considered and decided by the Bench in the case of Anita Jain Badkul (supra) and we see no error in the same.
11- As far as the finding of the learned Single Judge that the circular dated 3.11.2012 could be issued in accordance to the provisions of Rule 14 of the Recruitment Rules of 2005 is concerned, the power 5 Writ Appeal No :: 715/2013 Smt. Urmila Rajak Vs. State of MP and others.
that can be exercised under this Rule is only to prescribe and provide for certain provisions who are not already provided for or referred to in the statutory rule. Rule 14 cannot be put into service for doing something which is contrary to the rule or to amend the rule. This is not permissible and is beyond the powers available to the State Government in its administrative domain.
12- In view of the above, we are of the considered view that the learned writ Court has misconstrued the entire matter and in rejecting the petition has committed an error.
13- Accordingly, this appeal is allowed. The respondents are directed to reconsider the case of the appellant, after granting her age relaxation in accordance to the provisions of Note (3) and (5) of Schedule II, of the Recruitment Rules of 2005.
14- Appeal stands allowed and disposed of.
( RAJENDRA MENON ) ( ALOK VERMA )
JUDGE JUDGE
Aks/-