Rajasthan High Court - Jaipur
Rajendra Singh And Ors vs State Of Raj And Ors on 22 February, 2017
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B.Civil Writ Petition No. 2500 / 2017
1. Rajendra Singh S/o Shri Jagdish Prasad,, Aged About 36 Years,
Aroda, Post Hantra, Tehsil Nadbai, District Bharatpur.
2. Jagram S/o Shri Sirdar,, Aged About 47 Years, Nothya, Post
Nothya, Tehsil Nadbai, District Bharatpur.
3. Mordhvaj Singh S/o Shri Hero Singh,, Aged About 35 Years,
Lalpur, Post Unch, Tehsil Nadbai, District Bharatpur.
4. Kamal Sharma S/o Shri Roopram Sharma,, Aged About 35
Years, Village Sundyana, Post Unch, Tehsil Nadbai, District
Bharatpur.
5. Balvir Singh S/o Shri Prem Singh,, Aged About 46 Years,
Manjhi, Tehsil Nadbai, District Bharatpur.
6. Kaushlendra Singh S/o Shri Badan Singh,, Aged About 42
Years, Gagwana, Post Gagwana, Tehsil Nadbai, District Bharatpur.
7. Satya Prakash S/o Shri Ganga Ram,, Aged About 37 Years,
Village Basiya Kalan, Post Gagwana, Tehsil Nadbai, District
Bharatpur
8. Bharat Singh S/o Shri Ghanshyam,, Aged About 43 Years,
Village Govra, Post Govra, Via Bayana, Tehsil Nadbai, District
Bharatpur
9. Sukhram Singh S/o Shri Sugan Singh,, Aged About 42 Years,
Village Kailuri, Post Ronija, Tehsil Nadbai, District Bharatpur
10. Saubir Singh S/o Shri Sher Singh,, Aged About 37 Years,
Village Hota, Post Khedligadasia, Tehsil Nadbai, District Bharatpur
11. Devki Nandan S/o Shri Mohan Singh,, Aged About 37 Years,
Village Talchera, Post Talchera, Tehsil Nadbai, District Bharatpur
12. Gordhan Singh S/o Shri Ram Sanehi,, Aged About 36 Years,
Village Talchera, Post Talchera, Tehsil Nadbai, District Bharatpur
13. Samay Singh S/o Shri Kishan Singh, Aged About 42 Years,
Village Hantra, Post Hantra, Tehsil Nadbai, District Bharatpur
14. Rajesh Kumar S/o Shri Roopan Singh, Aged About 38 Years,
Village Lulhara, Post Paharsar, Tehsil Nadbai, District Bharatpur
15. Jeetam Singh S/o Shri Mahaveer Singh, Aged About 44 Years,
Village Piprau, Post Piprau, Tehsil Nadbai, District Bharatpur
16. Inder Singh S/o Shri Sultan Singh,, Aged About 51 Years,
Village Hantra, Post Hantra, Tehsil Nadbai, District Bharatpur
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17. Hetram Meena S/o Shri Hari Prasad, Aged About 45 Years,
Village Mahrampur, Post Raysis, Tehsil Nadbai, District Bharatpur
18. Kaptan Singh S/o Shri Darogi Singh,, Aged About 45 Years,
Village Itamada, Post Varauli, Tehsil Bhusawar, District Bharatpur
19. Kartar Singh Gurjar S/o Shri Jaisi Ram Gurjar,, Aged About 52
Years, Village Raipur, Post Jagjivanpur, Tehsil Weir, District
Bharatpur.
20. Rameshwar Singh S/o Shri Mithan Singh,, Aged About 38
Years, Village Slaimpur Khurd, Post Slaimpur Khurd, Tehsil
Bhusawar, District Bharatpur.
21. Jiya Lal S/o Shri Bhagwat Prasad,, Aged About 36 Years,
Village Sita, Tehsil Weir, District Bharatpur.
22. Soran Singh S/o Shri Ram Swaroop,, Aged About 40 Years,
Village Ulupura, Post Kamalpura, Tehsil Bhusawar, District
Bharatpur.
23. Balmukand S/o Shri Padam Singh,, Aged About 39 Years,
Hatauri, Hathodi, District Bharatpur.
24. Ramesh Chand S/o Shri Babu Lal Prajapat,, Aged About 50
Years, Village Bhusawar, Post Bhusawar, Tehsil Weir, District
Bharatpur.
25. Kishan Singh S/o Shri Nathhi Singh,, Aged About 46 Years,
Village Mahtoli, Post Chentoli, District Bharatpur.
26. Raghuveer S/o Shri Ramlal,, Aged About 52 Years, Village
Sendhli, Post Sendhli, Tehsil Bhusawar, District Bharatpur.
27. Dharam Singh S/o Shri Niroti,, Aged About 45 Years, Villaged
and Post Bamera Kalan, Tehsil Weir, District Bharatpur.
----Petitioners
Versus
1. State of Rajasthan, Through Secretary, Public Health &
Engineering Department,, Secretariat, Jaipur
2. Chief Engineer, Public Health & Engineering Department,, Jaipur
3. Executive Engineer, Public Health & Engineering Department,
Divisional Bharatpur
4. Assistant Engineer, Public Health & Engineering Department,,
Sub-Division Rural, Bharatpur
5. Secretary, Department of Panchayati Raj,, Secretariat, Jaipur
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----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Raghunandan Sharma
For Respondent(s) : Ms. Charu Jain on behalf of Mr. J.M. Saxena,
AAG
_____________________________________________________
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Judgment
22/02/2017
The present writ petition has been filed under Article
226 of the Constitution of India, praying that the respondents be
directed not to reject the candidature of the petitioners on the
ground that the petitioners are overage in pursuance of the
Advertisement dated 8.8.2013 and 6.1.2017. It is further prayed
that the respondents be directed to grant benefit of bonus marks
to the petitioners considering their experience on the post of Pump
Driver.
The learned counsel for the petitioners has submitted
that at this stage, he will not press the prayer for grant of bonus
marks and shall only urge before this court that the respondents
be directed to relax the condition which prescribe age for applying
to the post of Pump Driver. The learned counsel for the petitioners
has contended that the petitioner continued to serve the
respondents and due to non-issuance of the advertisement earlier,
by efflux of time, the petitioners have become overage in terms of
the advertisement issued by the respondents.
The controversy raised is no longer res integra. The
operative portion of the order passed by this Court in the case of
Suresh Chander Meena & Ors. vs. Secretary, Rajasthan
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Subordinate & Ministerial Services Selection Board & Anr.
SBCWP No.14934/2016, and six other connected writ petitions,
decided on 9.11.2016, reads as under:-
"A Single Judge of this Court in the case of Pawan
Kumar Bardiya & Ors vs. State of Rajasthan & Anr.,
2012(1) WLC (Raj.) 301, in respect of the recruitment
of Agriculture Officer and Assistant Agriculture Officer
where advertisement was issued after eleven years,
even though, the vacancies existed, came to
conclusion that the age of the candidate cannot be
relaxed by the court but to do the same is the sole
prerogative of the State Government. The learned
Single in case of Pawan Kumar Bardiya (supra) held as
under:-
"13. Per contra, learned counsel for respondents submits
that advertisement was issued on 5.7.2008 giving out last
date of submission of application as 20.8.2008 thus one
was required to be within age limit as notified in the
advertisement. The petitioners are those who applied for
the post knowing it well that they have already crossed the
age limit provided under the Rules. If the prayer is
accepted then it would result in discrimination as many
candidates did not apply for the post in adherence to the
Rules treating themselves to be overage. Hence,
acceptance of the writ petitions would be to the benefit of
those who have not adhered to the Rules.
14. Coming to the notification dated 23.9.2008, it is
submitted that it is prospective in nature and cannot have
application for the advertisement issued in the month of
July having last date to submit application by 20.8.2008
i.e. much prior to the notification amending the Rules. One
cannot apply and plead for the benefit of age relaxation
anticipating some amendment in the Rules at a later stage.
The notification dated 23.9.2008 has no application in the
present recruitment even if the age is to be reckoned as on
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1.1.2009. The aforesaid issue has already been decided by
the Division Bench of this court in the case of "Inder Bhan
Singh Gujar v. State of Rajasthan & anr." reported in 2001
(2) RLR 168 and Single Bench judgment has otherwise been
reported in 1999(1) WLC 141. The present matter is
squarely covered by the judgment in the case of Inder Bhan
Singh Gujar (supra).
15.Now comes the issue as to whether one is entitled to be
treated within age if recruitment has not taken place every
year, rather if there is a delay of years together. It is
submitted that after judgment of the Division Bench of this
court in the case of Prakash Chand (supra) when the co-
ordinate Bench took the same view, one of the judgments
was challenged before the Apex Court by the Rajasthan
Public Service Commission and, therein, the view was not
approved. It was held that delay in holding recruitment
will not entitle a candidate to get benefit of age. The
controversy has been settled therein with authoritative
pronouncement.
16. Same view was taken by this court in the case of "Dr
Pushpa Gupta v. State of Rajasthan & Ors." reported in :
RLR 2002 (2) 733." In the case of "E Ramakrishnan & Ors. v.
State of Kerala & Ors." reported in: (1996) 10 SCC 565 it
was held that relaxation of age can be granted by the
Government and not by the court.
17. Reliance has further been made on the judgment in the
case of "Mahesh Kumar v. The State of Rajasthan & Ors."
reported in : 1998(2) WLC (Rajasthan) 666". The issue of
grant of age relaxation further came up for consideration in
the case of "Dr Ami Lal Bhat v. State of Rajasthan & Ors."
reported in : JT 1997 (6) SC 72, wherein, relaxation in age
limit was not allowed on wholesome (sic. wholesale) basis
but allowed only when public interest element is existing.
18. The Division Bench of this court in the case of "Smt
Shashi Kala Dadhich v. RPSC & anr., DB Civil Special Appeal
(Writ) No. 923/2006, decided the same controversy vide its
judgment dated 24th January, 2008. Therein, the court
considered earlier judgment in the case of Prakash Chand
but considering the judgment of the Apex Court in the case
of "RPSC v. Smt Anand Kanwar, Civil Appeal No. 52/93,
decided on 8.2.1995, held that delay in recruitment by not
determining the post every year would not entitle a
candidate to get benefit in age bar. The appeal was
accordingly dismissed.
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19. I have considered rival submissions of learned counsel
for parties and scanned the matter carefully besides
perusing the judgments cited at the Bar.
20. The facts not in dispute are that last recruitment to the
post in reference was held in the year 1996 and,
thereupon, advertisement has now been issued in the year
2008 thus for intervening period of 11 years, no
recruitment was held by the respondents.
21. First question for consideration of this court is as to
whether those who were within the age limit during the
intervening period of 11 years should be granted benefit in
age limit, taking note of the year corresponding to the
vacancy.
22. This court in the case of Prakash Chand and Dr. Banshi
Lal Dhakar (supra) held that a candidate would be entitled
to be treated within age if the recruitment did not take
place in previous years when the candidate was within age.
23. The Apex Court in the case of Smt Anand Kanwar
(supra) took a view otherwise than what has been taken by
this court. In the case of Smt Anand Kanwar (supra) the
Apex Court even noticed the reason for treating a
candidate to be within age as recorded by the Division
Bench of this court, but reversed it. Following para of the
judgment in the case of Smt Anand Kanwar is quoted for
reference thus -
It was not disputed before the High Court
that prior to 1988, recruitment to the cadre
of Assistant Teachers was made only in the
year 1983. Recruitment to the said cadre is
by way of direct recruitment and also by
promotion. During the period 1983-89
promotions were being made to the cadre,
but not direct recruitment was made. The
contention raised by the respondent before
the High Court was that it was mandatory
for the Rajasthan Government to have filled
the quota of direct recruits during all those
years. It was further contended that had the
posts meant for direct recruitment been
advertised during the year 1983-89, the
respondent could have applied and may
have been selected. She contended that at
that point of time, she could not be
rejected on the ground of over-age. The
High Court accepted the contentions on the
following reasoning:--
"......The last advertisement was issued in
the year 1983 and this advertisement has
been issued in the year 1989 that is after a
lapse of about six years and the petitioner
has completed her age of 40 years in the
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year 1986. It has been held in this authority
that if year-wise vacancies are not
determined and if the advertisements are
issued to fill up the vacancies of six years by
the one advertisement, then the person's
candidature cannot be rejected on that
account....."
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 become ineligible on
account of absence of determination of the
vacancies.....
She could have been denied right of a
consideration only if there existed no
vacancies till the time she has attained the
age of 40 years. If vacancies were existing,
she had a right of consideration and
consequently the petitioner who has been
allowed to appear in the interview under
the orders of the Court, her result of the
interview be declared and if she is found
suitable for appointment on the basis of the
merit that has been assigned to her by the
Public Service Commission, she be afforded
appointment as a Senior Teacher, which has
now been designated as Lecturer in
Secondary/Senior Secondary Section). The
result be declared within a period of three
weeks from today and if she is entitled to be
appointed then appointment be accorded to
her within 3 months from today."
We are of the view that the High Court fell
into patent error bordering on perversity in
issuing the mandamus on the reasoning
quoted above. It is settled proposition of
law that the eligibility of a candidate has to
be determined on the basis of the terms and
conditions of the advertisement in response
to which the candidate applies. There is
nothing on the record to show that the State
Government was in any manner negligent or
at fault in not making the direct
recruitment during the period 1983-89. Be
that as it may, the High Court was not
justified in taking the clock back to the
period when unfilled vacancies were
existing and holding that since the
respondent was eligible on the date when
vacancies fell vacant, she continues to be so
till the time the vacancies are filled. Due to
inaction on the part of the State
Government in not filling the posts year-
wise, the respondent cannot get a right to
participate in the selection despite being
over-aged.
We, therefore, allow the appeal and set
aside the judgment of the High Court and
dismiss the writ petition filed by the
respondent. No costs.
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24. Same view was taken by the Division Bench of this
court in the case of Smt Shashi Kala Dadhich (supra),
wherein, even the judgment in the case of Prakash Chand
(supra) was considered and, in the light of the judgment
of the Apex Court in the case of Smt Anand Kanwar
(supra), detailed judgment was rendered. Para 5, 6 and 7
of the said judgment is quoted for ready reference thus -
5. The direct recruitment to the posts of Lecturer in
Hindi, admittedly, is being made under Rajasthan
Educational Service Rules, 1970 (for short 'the Rules
of 1970'). The counsel for the appellant did not
dispute that the Rules of 1970 do not have a
provision that the candidates who were eligible in a
particular year but were rendered in-eligible in the
subsequent years, they were to be treated as
eligible to appear in the examination irrespective of
age requirement in case no examination was held in
the particular year in which they were eligible. We
are afraid, for want of any provision in the Rules of
1970, the decision of the Division Bench in the case
of Prakash Chand cannot be applied to the present
fact situation.
6. We may now refer to the judgment of the
Supreme Court in the case of Anand Kanwar. That
was a case where Anand Kanwar applied for the
post of Senior Teacher in the year 1989 pursuant to
the advertisement. At that time she had already
crossed the age of 40. She appeared in the
preliminary examination conducted by the
Rajasthan Public Service Commission (for short,
"Commission") but at the time of viva-voce she was
told that she was not eligible being over-age and
her candidature was cancelled. Upon challenge of
the cancellation of her candidature before this
court, the Division Bench held that the last
advertisement was issued in the year 1983 and
thereafter the advertisement was issued in the year
1989 i.e. after a lapse of about 6 years. If year-wise
vacancies were not determined and if the
advertisement was issued to fill the vacancies of six
years by one advertisement, then the person's
candidature cannot be rejected on that ground. The
Division Bench held that competent authority
cannot avoid the 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 were eligible in a particular
year but became in-eligible on account of absence
of determination of vacancies. The consideration of
the matter by the Division Bench was held by the
Supreme Court bordering on perversity.
The Supreme Court held thus:
"It is settled proposition of law that the eligibility of
a candidate has to be determined on the basis of
the terms and conditions of the advertisement in
response to which the candidate applies. There is
nothing on the record to show that the State
Government was in any manner negligent or at fault
in not making the direct recruitment during the
period 1983-89. Be that as it may, the High Court
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was not justified in taking the clock back to the
period when unfilled vacancies were existing and
holding that since the respondent was eligible on
the date when vacancies fell vacant, she continues
to be so till the time the vacancies are filled. Due to
inaction on the part of the State Government in not
filling the posts year-wise, the respondent cannot
get a right to participate in the selection despite
being over-aged.
7. In the light of the authoritative pronouncement of
the Supreme Court as afore noticed, we find no
merit in the contentions of the counsel for the
appellant. The appellant is not entitled to age
relaxation as claimed by her."
The learned Single of this court further held that since
the court cannot make overage candidates eligible, the
candidates who have become overage can approach the
State Government praying that the rule prescribing age
be relaxed qua them. The learned Single Judge held as
under:-
"29. In the light of the judgment referred to aforesaid,
contention of learned counsel for petitioners to treat them
within age on the analogy that notification for age
relaxation of three years was issued prior to the relevant
date for determination of age. In fact, a prudent candidate
may not have applied pursuant to the advertisement
treating himself to be overage as nobody can expect that
subsequent to the last date of submission of application
forms, a notification would be issued granting relaxation in
age thus acceptance of the plea of the petitioner, would
result in discrimination as held by the Division Bench of
this court in the case of Inder Bhan Singh Gujar (supra).
30. In view of the aforesaid, even second contention raised
by learned counsel for petitioners cannot be accepted.
31. The issue now remains is as to whether petitioners can
seek benefit of age relaxation from the State Government
as it has power to relax the rules.
32. I have considered the matter and find that the State
Government is having power to relax the rules in
appropriate cases, thereby petitioners can make a
representation to the State Government to extent benefit
of age relaxation after making out a case, if such
representation has not already been made by the
petitioners.
33. It cannot be ignored that the recruitment in the
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present matter has taken place after 11 years and, during
the intervening period, vacancies took place thus those
who were within age limit corresponding to the year of
vacancy have now become ineligible on account of delay in
recruitment.
34. Looking to the aforesaid and other relevant factors, the
matter may be considered by the government for
relaxation in age. While considering representation of the
petitioners, State Government may also keep in mind that
they should try to get meritorious candidates so that they
may get best talented persons in service.
35. Petitioners have already passed out the selection,
though appeared therein pursuant to the interim order of
this court. In the case of Abhishek Sharma & Ors. v. State
of Rajasthan & anr., DB Special Appeal (Writ) No.
731/2007, decided on 22.5.2007, this court issued similar
directions to the Government for consideration of
representation keeping in mind hardship of the appellant
therein. That was also for grant of age relaxation under
rule 46 applicable thereunder. This is more so when power
to relax the age does not lie with the court but lies with
the government only as held by the Apex Court in the case
of "E Ramakrishnan & Ors. v. State of Kerala & Ors."
reported in : (1996) 10 SCC 565.
36. Similarly, the Apex Court in the case of "Suraj Prakash
Gupta & Ors. v. State of J&K & Ors. ", reported in : (2000)
7 SCC 561 also held that powers to relax the rules can be
exercised by the government taking into consideration
hardship of the candidates, after recording reasons."
This issue also came for consideration before a Division
Bench of this Court at Principal Seat at Jodhpur and the
learned Division Bench of this Court in the case of Prem
Ratan Modi vs. The State of Rajasthan & Ors., 2012
(3) ILR (Raj.) 522, held as under:-
"18. In view of the law laid down by the Hon'ble Apex
Court in Malik Mazhar Sultan and Anand Kanwar, the
decision in Prakash Chand's case (supra) as rendered by a
Division Bench of this Court is of no help to the appellant.
19. The submission as made by the learned counsel for the
appellant that limiting the age relaxation only upto 3 years
operates contrary to the provisions of the Rules does not
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carry force. The aspects of yearly determination of
vacancy and even yearly holding of recruitment do not ipso
facto lead to the position that every person within the age
limit as on the date of occurrence of the vacancy or
determination of vacancy ought to be treated within the
age irrespective of the other provisions of the Rules and
irrespective of the time of recruitment.
20. In the ultimate analysis, age relaxation for the direct
recruitment, if to be granted, would be a matter for the
Government to prescribe in the relevant Rules; and beyond
what has been prescribed, cannot be claimed as a matter
of right. It appears that in order to mitigate against the
hardship likely to be faced by the prospective candidates
but at the same time maintaining the balance of the
requirements of services, the Government has provided
age relaxation upto 3 years by way of notifications of
amendment as issued on 23.09.2008. Taking for example
the recruitment in question, the maximum age limit as
prescribed in the Rules is 35 years and it gets extended to
38 years with the relaxation provided. If at all the factor of
not holding of recruitment for 13 years is taken into
consideration and the relaxation for all the years of not
holding recruitment is provided as suggested, it would be
something like allowing a person even at about 48 years of
age to enter into the service as an LDC. The Government,
in its wisdom, if has chosen to restrict the relaxation to 3
years beyond the age as prescribed, it cannot be said that
anything unreasonable or irrational has been provided.
21. We need not dilate further on the aforesaid aspect in
the present case as the validity of Rules was not in
challenge in the writ petition filed by the petitioner. In the
existing scheme of Rules, the petitioner was not entitled to
the relief as claimed; and hence, the learned Single Judge
cannot be faulted in dismissing the writ petition.
22. So far the other submission made by the learned
counsel for the appellant regarding relaxation in case of
hardship per Rule 49 of the Rules of 1999 is concerned,
such an aspect does not appear having been placed for
consideration before the learned Single Judge. However, in
the interest of justice, it does appear appropriate to
observe in this regard that if at all the petitioner-appellant
makes, within two weeks from today, specific
representation for consideration of his case on the anvil of
Rule 49 and other co-related rules applicable to the case
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for relaxation in regard to the age, the same may be
considered by the respondents in accordance with law; and
for that matter, any observations made in this order shall
not be of an impediment in independent and objective
consideration of such representation. Subject to the
observations and the requirements foregoing, this appeal
fails and is, therefore, dismissed. No costs."
Another Division Bench of this Court at Jaipur Bench in
the case of Gopal Lal Sharma & Ors. vs. State of
Rajasthan & Ors., Manu/RH/1472/2015, held as
under:-
"3. We have examined the judgment in Prem Ratan Modi v.
The State of Rajasthan & Ors.: (2013 Lab IC 1039 (Raj))
(supra), and did not find any such ground, which may
require reconsideration by the Court of the judgment, or
any such ground has been raised, which may require a
reference to a Larger Bench.
4. The coordinate Bench had upheld the proviso on the
ground that the age relaxation of 3 years for number of
years, can be given for the selections, which were held,
despite the provision for determining vacancies, and
holding selections for the vacancies every year, and that 3
years relaxation, for that purpose, was sufficient, and does
not amount to any arbitrariness or unreasonableness.
5. If the State Government was of the opinion that 3 years
relaxation would be sufficient, and that any further
relaxation will amount to entry of the persons on advance
age in service, no error can be found in the decision taken
by the State Government. We find that though the validity
of the Rule was not challenged in the judgment in Prem
Ratan Modi's case (2013 Lab IC 1039 (Raj)) (supra), the
reasons given by the coordinate Bench would be valid, even
in the challenge of the validity of the Rule. The reasons,
for which proviso was added, were examined by the
coordinate Bench, and the same reasons were valid for
repelling the challenge to the proviso. The Writ Petition is
covered by the judgment in Prem Ratan Modi v. The State
of Rajasthan & Ors. (2013 Lab IC 1039 (Raj)) (supra), and is
accordingly dismissed."
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Another Division Bench of this court in Rajasthan
Public Service Commission vs. Mahendra Kumar,
Manu/RH/1230/2014, upholding the validity of
amended rules and relying upon Prem Ratan Modi's case
(supra) held as under:-
"15. In Prem Ratan Modi v. State of Rajasthan & Ors. :
2013 Lab IC 1039 (Raj)) (supra), the Co-ordinate Bench
of this Court, while relying on the decision of Hon'ble
Supreme Court rendered in RPSC v. Smt. Anand Kanwar
(supra) and in Malik Mazhar Sultan & Anr. v. U.P Public
Service Commission & Ors., : (2006) 9 SCC 507, has
refused to grant the benefit of age relaxation to the
appellants therein beyond the period as provided in
the concerned rules and has held as under :
"In the ultimate analysis, age relaxation for
the direct recruitment, if to be granted,
would be a matter for the Government to
prescribe in the relevant rules; and beyond
what has been prescribed, cannot be
claimed as a matter of right. It appears that
in order to mitigate against the hardship
likely to be faced by the prospective
candidates but at the same time
maintaining the balance of the
requirements of services, the Government
has provided age relaxation upto 3 years by
way of notifications of amendment as issued
on 23.09.2008. Taking for example the
recruitment in question, the maximum age
limit as prescribed in the Rules is 35 years
and it gets extended to 38 years with the
relaxation provided. If at all the factor of
not holding of recruitment for 13 years is
taken into consideration and the relaxation
for all the years of not holding recruitment
is provided as suggested, it would be
something like allowing a person even at
about 48 years of age to enter into the
service as an LDC. The Government, in its
wisdom, if has chosen to restrict the
relaxation to 3 years beyond the age as
prescribed, it cannot be said that anything
unreasonable or irrational has been
provided."
16. It appears that the law laid down by the Co-ordinate
Bench in Prem Ratan Modi's case: 2013 Lab IC 1039 (Raj))
(supra) has not been applied in correct perspective in the
impugned order.
17. In the case in hand, the State Government, in its
wisdom, has not provided benefit of age relaxation in the
Rules of 1989 looking to the requirement of service in the
police department, then it is not open to question the said
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decision of the State Government by claiming parity with
other service rules or with other categories of service.
18. The learned counsel for the appellant is right in arguing
that no parity can be claimed by one category of service
with other category of service and it is within the domain
of the employer concerned that in which category of
service, the benefit of age relaxation is to be provided.
The benefit of age relaxation cannot be claimed as a
matter of right and, therefore, the claim of the
respondent-petitioner for age relaxation in the maximum
age limit while claiming parity with other categories of
service is not based on sound proposition of law and,
therefore, is liable to be rejected.
19. Consequently, the appeal preferred on behalf of the
appellant- RPSC is allowed. The impugned order dated
26.08.2013 passed by the learned single Judge in SBCWP
No. 7824/2012 is hereby set aside and the writ petition
filed by the respondent-petitioner is dismissed. Stay
petition stands disposed of."
The similar view was also reiterated by another Division
Bench at Principal Seat at Jodhpur in the case of Manish
Sharma vs. High Court of Judicature for Rajasthan,
Manu/RH/0349/2013, and it was held as under:-
"6. As regards the claim for age relaxation too, it remains
trite that relaxation can be claimed only if, and to the
extent, permissible under the Rules. In the case of Prem
Ratan Modi Vs. The State of Rajasthan & Ors.: SAW No.
383/2012, decided on 17.08.2012, this Court took note of
the law laid down by the Hon'ble Apex Court in the cases of
Malik Mazhar Sultan & Anr. Vs. U.P. Public Service
Commission & Ors.:: (2006) 9 SCC 507; and Rajasthan
Public Service Commission Vs. Smt. Anand Kanwar & Ors.:
Civil Appeal No. 52/1993, decided on 08.02.1995 as under:-
In Malik Mazhar Sultan's case (supra) even when
emphasizing on the requirement of timely determination of
the vacancies and timely appointments in relation to the
U.P. Judicial Services, so far the age requirement was
concerned, the Hon'ble Supreme Court held as under: -
17. The present controversy has arisen as the
advertisement issued by PSC stated that the
candidates who were within the age on 1st July,
2001 and 1st July, 2002 shall be treated within
(15 of 18)
[CW-2500/2017]
age for the examination. Undoubtedly, the
excluded candidates were of eligible age as per
the advertisement but the recruitment to the
service can only be made in accordance with
the rules and the error, if any, in the
advertisement cannot override the Rules and
create a right in favour of a candidate if
otherwise not eligible according to the Rules.
The relaxation of age can be granted only if
permissible under the Rules and not on the
basis of the advertisement. If the interpretation
of the Rules by PSC when it issued the
advertisement was erroneous, no right can
accrue on basis thereof. Therefore, the answer
to the question would turn upon the
interpretation of the Rules. (Emphasis Supplied)
Moreover, in Anand Kanwar's case (supra), even while noticing that
the recruitments were not held during the years 1983 to 1989, the
Hon'ble Supreme Court said,-
Be that as it may, the High Court was not justified in
taking the clock back to the period when unfilled
vacancies were existing and holding that since the
respondent was eligible on the date when vacancies
fell vacant, she continued to be so till the time the
vacancies are filled. Due to inaction on the part of the
State Government in not filling the posts year-wise, the
respondent cannot get a right to participate in the
selection despite being over-aged.(Emphasis supplied)
7. It was found in the aforesaid case of Prem Ratan Modi that
relaxation in age for direct recruitment would be a matter for the
Government to prescribe in the relevant rules; and, beyond what
had been prescribed, cannot be claimed as a matter of right. In
Prem Ratan Modi's case, the claim for providing age-relaxation of
13 years was found beyond the relevant rules and, this Court, inter
alia, observed as under:-
In the ultimate analysis, age relaxation for the direct
recruitment, if to be granted, would be a matter for
the Government to prescribe in the relevant Rules; and
beyond what has been prescribed, cannot be claimed
as a matter of right....
8. In view of the above, the claim for age relaxation as made
by the petitioner could only be rejected. In the result, this
writ petition fails and is, therefore, dismissed."
Similar view was also reiterated by another Division
Bench of this court in Hem Raj Gurhani vs. State of
Rajasthan, Manu/RH/1238/2014.
In view of settled legal position, which has been
propounded by the learned Single Judge in the case of
Pawan Kumar Bardiya (supra) and various Division
(16 of 18)
[CW-2500/2017]
Bench of this Court in the cases of Prem Ratan Modi
(supra), Gopal Lal Sharma (supra), Rajasthan Public
Service Commission vs. Mahendra Kumar (supra),
Manish Sharma (supra) and Hem Raj Gurhani (supra),
this Court has no hesitation to hold that this Court
cannot pronounce overage candidates as eligible.
Hence, this Court cannot come to rescue of the
petitioners.
Having held so, this court cannot ignore the rule 38 of
the Rajasthan Education Subordinate Service Rules,
1971, pressed into service by the learned counsel for
the petitioners.
In the reply filed in the case bearing no. S.B. Civil Writ
Petition No.14649/2016 and S.B. Civil Writ Petition
No.14803/2016, the respondent no.2 Selection Board
has also acknowledged the right of the petitioners to
represent to the State Government for relaxation of
rules by making the following averment:-
"17 xxxxxx xxx xxxx
With regard to the rule 38 of the Rajasthan Education
Service Rules 1971 petitioners can file representation
before the Government for his hardship and Government
can decide the representation according to law."
The Selection Baord has specifically admitted that the
Government has power to relax the rules and
therefore, considering the exceptional circumstances
and hardship faced by the candidate that the posts
were not advertised for a long period of twenty-three
years, petitioners/candidates can be relegated to
approach the State Government to relax the rules in
their favour, which prescribe maximum age. Prayer to
relax the rule to make overage candidate/petitioners
eligible can be made to State Government by making a
representation, as averred by the Selection Board, the
respondent no.2, in Para 17 of the replies filed.
(17 of 18)
[CW-2500/2017]
A Division Bench of this Court in Prem Ratan Modi's
case (supra) had also permitted the petitioners therein
to approach the State Government for relaxation of
the rules. Similar liberty was also granted by the
learned Single Judge in the case of Pawan Kumar
Bardiya (supra). Therefore, in the interest of justice,
each petitioner is granted liberty to make
representation to the State Government on the anvil
of rule 38 of Rules of 1971 and other co-related rules
applicable to the case of relaxation with regard to the
age. It is ordered that in case the representation is
filed by each petitioner in individual capacity within
two weeks from today, then the State Government
shall take decision upon the representation so filed
within a period of four weeks, independently without
persuaded by any observation made by this Court.
It is further ordered that till the representation to be
made by the petitioners is considered by the State
Government, the Selection Board respondent no.2
shall accept the application form of the petitioners
offline and proceed with the process of recruitment
considering the application of each petitioner to be in
order.
It is further clarified that in case the State
Government reject the representations of the
petitioner or petitioners, candidature of the
petitioner/petitioners shall be cancelled and they
shall be at liberty to assail the decision of the State
Government. However, in case the State accepts
representation and grant relaxation, the respondents
shall proceed ahead with the matter. It is further
clarified that the court has only ordered that till the
decision of the representation, application of the
petitioners shall be accepted offline without
commenting upon the rights of the State Government
to grant or refuse relaxation qua the age of a
candidate."
(18 of 18)
[CW-2500/2017]
Counsel for the petitioners has contended that pari-
materia to Rule 38 of the Rajasthan Education Service Rules,
1971, similar rule also exist in the service rules governing the
service, which petitioners intend to apply for. This fact is not
denied by the Ms. Charu Jain, appearing for the respondents.
After hearing Mr. Raghunandan Sharma the learned counsel for the petitioners and Ms. Charu Jain appearing on behalf of Mr. J.M. Saxena, AAG, the present writ petition is disposed of in same terms as in the case of Suresh Chander Meena & Ors. vs. Secretary, Rajasthan Subordinate & Ministerial Services Selection Board & Anr., decided on 9.11.2016.
(KANWALJIT SINGH AHLUWALIA)J. Mak/-