Rajasthan High Court - Jaipur
Omnarain Purohit vs State Of Rajasthan And Ors. on 28 May, 1991
Equivalent citations: 1992(3)WLC641, 1991WLN(UC)292
JUDGMENT G.S. Singhvi, J.
1. In this writ petition filed under Article 226 of the Constitution of India the petitioner has prayed that the Rajasthan Public service Commission may be directed to call him for interview for the posts of Senior Teachers advertised by the Advertisement No. 6/89-90 and the communications dated 6.11.90 (Anx. 3) and dated 18.12.90 (Anx. 5) issued by the Rajasthan Public Service Commission be quashed.
2. Petitioner was born on 15.6.1957. He passed M.A. in Hindi from the University of Rajasthan and thereafter did his Ph. D. from the University of Rajasthan and thereafter did his P.H.D. from the University of Rajasthan in the year 1984. He also passed B.Ed, examination in the year 1986.
3. The petitioner was appointed as Teacher in Panchayat Samiti Bikaner with effect from 10.11.1986. He was appointed on Probation after selection by a Selection Committee.
4. The petitioner has stated that after 1984 vacancies in the cadre of Senior Teacher (subsequently re-designated as School Lecturer) were not advertised by the Rajasthan Public Service Commission. Such advertisement was issued only in the year 1989 vide Advertisement No. 6/89-90. The last date fixed for the receipt of the applications was fixed as 20th of October, 1989. The petitioner submitted his application for selection on the post of School Lecturer in the prescribed proforma as to reach to the Commission before the last date fixed for the receipt of the application. The petitioner fulfilled all the requirements of qualifications and age as prescribed in the Advertisement. The petitioner appeared for the written test held by the Commission on 1.5.1990. The result of the written test was announced by the Rajasthan Public Service Commission and petitioner was shown as one of the candidates who were treated eligible to be called for interview. However, by a communication dated 6.11.90 (Anx. 3) the Rajasthan Public Service Commission informed the petitioner that he cannot be called for interview because he is over age. The petitioner submitted a representation dated 26.11.1990 to the Commission. In his representation he claimed that he is serving in connection with the affairs of the State is sptitled to be considered within age limit of 40 years which is applicable for persons holding the post substantively and who are serving in connection with the affairs of the State. This representation of the petitioner has been rejected by the Commission and he has been communicated with the decision of the Commission by letter dated 18.12.1990 (Anx. 5).
5. The petitioner has challenged the decision of the Communication on two grounds. The first is that the petitioner is carving in a substantive capacity in connection with the affairs of the Stale and therefore he is entitled to the benefit of upper age limit of 40 years proscribed in the Rajasthan Educational Subordinate Service Rules 1971. The accused one is that the Public Service Commission has not held any examination for the posts of senior Teachers which new are redesignated as School Lecturers after 1984. Persons who were eligible for selection after 1954 cannot be treated as over-age in respect of the posts advertised by the Advertisement No. 6/89-90. They all must be treated as eligible because they cannot because to suffer an account of the lapse on the part of the Administration. The Government has not hold selection for number of years and those who were within age limit after 1984, must be deemed to be within limit for the purpose of Advertisement No. 6/89-90. The petitioner has also been referred to the amendment made in the Rajasthan Educational Subordinate Service Rules 1971 whereby upper age limit has new been fixed as 3 years. The case of the petitioner is that he was within age limit, if the examinations were held in the year 1985 to 1988 and more failure of the Commission to make regular selection by holding Examination yearwise cannot operate to the detriment of the petitioner.
6. The respondent No. 2 has filed a reply to the writ petition. In its reply respondent No. 2 has stated that the petitioner has completed 31 years of age much before the last date fixed for the receipt of the application and, therefore, he cannot be treated as. eligible for recruitment to the post of Senior Teacher/School Lecturer. The Commission scrutinised the applications of the candidates before sending them interview letter. At the time of scrutiny it was revealed that the petitioner has crossed the age limit of 31 years on 1.1.1990 and, therefore, he has been declared in eligible on the ground of being over-age. The respondent No. 2 has also asserted that the petitioner was a member of the Service of the Panchayat Samiti and was not holding a Civil post in connection with the affairs of the State. He is, therefore not entitled to benefit of upper age limit of 40 years which is prescribed for employees of the State Government who are holding a post in the service in connection with the affairs of the State in substantive capacity.
7. The petitioner was ordered to be called for interview in terms of the interim area dated 4.1.1991 passed by the Court on the stay application. The result of the petitioner's interview was disclosed to the Court on 23.4.91 and it was found that the petitioner has been successful at the interview. Therefore, the case was ordered to be fixed for final hearing. During the course of hearing learned Additional Advocate General Shri J.P. Joshi very fairly stated that vacancies in the cadre of senior Teachers/School Lecturers had not been advertised by the Commission after 1984 and before issuance of Advertisement No. 6/89-90.
8. The first argument advanced by Shri J.L. Purohit learned Counsel for the petitioner is that the petitioner was within age limit as prescribed in the main part of Rule 10 of Rajasthan Educational Subordinate Service Rules 1971. If vacancies had been advertised for the year 1985 to 1988. The petitioner's date of birth is 15.6.1957 and the upper age limit prescribed in Rule 10 is 31 years. According to him, there is a statutory obligation imposed on the appointing Authority to determine on 1st of April every year the actual number of vacancies accurring during the financial year. Part IV of 1971 Rules prescribes the prosedure for direct recruitment and the R.P.S.C. is required to make recommendation of suitable candidates for appointment. Shri Purohit argued that if for a number of years the Government or the Appointing Authoring failed to determine the vacancies and the Commission has not take the selection, candidates like petitioner who are otherwise eligible cannot be made to suffer and cannot be treated as ineligible on the ground of age limit of 31 years. The argument of Shri Purohit is that if the persons like petitioner were within age limit in the years 1985, 1986, 1987 or 1988, they must be treated as eligible with reference to age requirement for the post advertised by advertisement No. 6/89-90.
9. The learned Additional Advocate General, on the other hand, submitted that the age limit can be considered only with reference to the vacancies which have been advertised and merely because the Commission has not made selection in the past, the petitioner cannot be treated as eligible because he has crossed the age limit of 31 years.
10. Rule 9 of 1971 Rules as it stands after 1.4.1981 reads as under:
9. Determination of vacancies.-
(1)(a) Subject to the provisions of these rules, the Appointing Authority shall determine on 1st April every year, the actual number of vacancies occurring during the financial year.
(b) Where a post is to be filled in by a single method as prescribed in the rule or Schedule, the vacancies so determined shall be filed in by that method.
(c) Where a post is to be filled in by more than one method be prescribed in the rules or Schedule, the appointment of vacancies, determined under Clause (a) above, to each such method shall be done maintaining the prescribed preportion for the over all number of posts already filled in. If any fraction of vacancies is left over, after appointment of the vacancies in the manner prescribed above, the same shall be appointed to the quota of various methods prescribed in a continuous cyclie order giving precedence to the programme quota.
(2) The Appointing Authority shall also determine the vacancies of earlier years, yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in.
11. Rule 10 of 1971 Rules provides that candidates for direct recruitment to a post enumerated in the Schedule must have attained the age of 18 years on the 1st day of January following the last date fixed for the receipt of the application and must not have attained the age of 32 years. There are several provisions to Rule 10 which prescribes higher upper age limit for various types of candidates.
12. A similar to the one raised in the present writ petition had arisen for consideration before a Division Bench in Prakash Chand v. State of Rajasthan and Anr. D.B. Civil Writ Petition No. 3710/1989 and the connected matters decided at Jaipur Bench on September 14, 1990. The Division Bench of which I was a member had an occasion to consider this matter at length with reference to the similar provisions contained in Rajasthan Police Subordinate Service Rules 1974 and Rajasthan Police Subordinate Rules 1989. It would be appropriate to quota some portion of that decision of the Division Bench which is as under:
Now once was found that there is an obligation to determine the vacancies for direct recruitment as well as for promotion every year, the question arises as to what should happen to the candidates who were eligible, in a particular year for direct recruitment but did not have an opportunity of consideration because of the failure on the part of the competent authority either to determine the vacancies or to make selection in a particular year. As far as promotion quota is concerned, this problem is reserved by Sub-rules (2) of Rule 9 of 1974 Rules and Sub-rule (2) of Rule 10 of 1989 Rules. However, problem is for the persons, who are aspirants for direct recruitment, with reference to the question of age limit. As we have noticed earlier, the upper age limit for recruitment to the posts of constable was 25 years in 1974 Rules and the same has been reduced to 21 years in 1989 Rules. The petitioner and others large number of persons who were eligible within the age limit of 25 years have all been rendered ineligible because the first advertisement dated 21.12.1988 was not acted upon. If the respondents had made selection in pursuance to that advertisement, the question of their being debarred on the ground of over age would not have arisen.
We find that in the Rajasthan State and Subordinate Service (Direct Recruitment by combine Competitive Examinations) Rules, 1962 there is a special provision regarding the age. The candidates who are eligible in a particular year, but are rendered ineligible in the subsequent years, they are treated as eligible to appear in the examination irrespective of age requirement in case no examination is held in the particular year in which they were eligible. It would be appropriate to quota proviso (9) to Rule 11 (h) of these Rules:
113. Age, - Notwithstanding anything contained regarding age limit in any of the Service Rules governing direct recruitment though the agency of the Commission to the posts In the State Service and in the Subordinate Services mentioned in Schedule I and in Schedule II respectively, a candidate for direct recruitment to the posts to be filled in by Combined Competitive Examination conducted by the Commission under these Rules must have attained the age of 21 years and must have not attained the age of 28 years on the first day of January next following the last date fixed for receipt of applications:
Provied:
(1) to (i) ....
(g) If a candidate would have been entitled in respect of his age to appear at the examination in any year in which no such examination was held, he shall be deemed to be entitled in respect of his age to appear at the next following examination.
We also notice that in the Rajasthan Judicial Service Rules, 1955 also similar provision is contained in Praviso (1) to Rule 10. This praviso is also repreduced for ready reference:
"10. Age" A candidate for recruitment to the service may not have attained the age of 35 year on the first day of January next following the date of commencement of the examination by the Commission for recruitment to the Service:
Provided:
(i) That barring the first examination to be held under the provisions of these Rules, if a candidate would have been entitled in respect of his age to appear at an examination in any year in which no such examination was held, he shall be deemed to be entitled in respect of his age to appear at the next following examination.
Thus under the Rules of 1962, for the post included in the Rajasthan Administrative Service, Rajasthan Police Service, Rajasthan Accounts Service, Rajasthan Cooperative Service, Rajasthan Employment Exchange Service, Rajasthan State Insurance Service, Rajasthan Commercial Taxes Service, Rajasthan Subordinate Devas than service, Rajasthan Subordinate corpestatives service R.T.S. Service, Rajasthan Commercial Taxes Subordinate Service, Rajasthan Food and Civil Commercial Taxes Subordinate Service, Rajasthan Food and Civil Supplies Subordinate Service and the various posts under the Rajasthan Subordinate Service (Recruitment and other Service Conditions) Rules, 1960 as well as under the Rajasthan Judicial Service Rules, 1955, a candidate is not denied consideration for direct recruitment on the ground of the limit if he was within the age limit in a year in which the examination was not held. These provisions contained in the rules of 1962 as well as the Rules of 1955 are intended to protect the rights of the persons against the failure of the competent authorities to held selection for direct recruitment year vise. The Rules of 1962 and the Rules of 1955 gives benefit of relaxation in upper age limit, If examination is not held in apartichlar year. Even this is not necessary that there must have existed vacancies in that particular year. If the competent authority makes determination of vacancies for direct recruitment quota on yearly basis and fill them up regularly in the year in which the vacancies occur, no such difficulty could arise. However, in practice we find that the Rajasthan Public Service Commission as well as other appointing authorities are having multifarious functions to perform. The R.P.S.C. is required to make recruitment for over 50 years apart from consultative functions in the matter of framing of service rules and disciplinary action in respect of the gazette officers. It is more or less in possible for the R.P.S.C. to make regular selection yearwise. That leads to a situation where large number of eligible candidates are rendered ineligible on account of their having become over age merely because in the particular year when they were eligible, recruitment is not made by the Competitive body or Commission or other authority. We do not find any justification as to why a provision like one contained in Rule 113 of 1962 Rules or Rules 10 of 1955 Rules has not been made in other Rules. This would have eliminated wholly unnecessary litigation of this nature.
However, once we have held that there is an obligation to make yearwise determination of vacancies for direct recruitment as well as promotion, the competent authority cannot avoid this responsibility by sheer inaction or amission and failure on the part of the competent authority cannot be used as a basis for denying eligibility to these who are eligible in a particular year but becomes ineligible on account of absence of determination of vacancies on yearly basis. So far as the promotion quota posts are concerned, all problems regarding eligibility etc. are solved in view of the provisions contained in Rule 9(2) of 1974 Rules and Rule 10(2) of 1989 Rules. For direct recruitment quota, we have to take notice of rule 9(1) and particularly, Clause (c) of 1974 Rule and Rule 10(1)(c) of 1989 Rules. We are of the view that the vacancies for direct recruitment must also be determined on yearly basis and efforts should be made to fill these vacancies during the course of the year. After determination of vacancies, the same shall be advertised immediately or within reasonable time, so that the candidates who are eligible can apply. The process of selection may be completed at a subsequent point of time. In that event, the disputes relating to eligibility with reference to age and qualifications would be obviated. For the subsequent years, the same very process can be repeated. After the vacancies of different years are advertised the process of selection shall be held separately and penal shall be drawn separately, so that the charge clubbing the vacancies may also not be levelled against the appointing authority. If an account of administrative difficulties, vacancies for direct recruitment cannot be filled in for a particular year, the candidates who are within the age limit with reference to the vacancies of a particular year must be treated as eligible even if the selection is held subsequently.
On the question of age following conclusion was recorded by the Division Bench:
So far as the age requirement is concerned, the eligibility of the candidates must be adjudged with reference to the year to which the vacancies relate and the candidates cannot be made to suffer merely because of non-determination of vacancies or failure of the competent authority to issue advertisement.
13. In the light of the aforesaid decision it must be held that since the respondents have failed to make yearwise determination of vacancies for direct recruitment and have also failed to advertise the vacancies candidates like petitioner cannot be treated as ineligible, merely because they have crossed the age limit for the purpose of advertisement No. 6/89-90. The petitioner was admittedly within the age limit in the year 1985, 1986, 1987 and 1988.
14. Although Shri J.L. Purohit advanced another argument that the petitioners is holding a civil post and is serving in connection with the affairs of the State and is, therefore, entitled to the benefit of upper age limit of 40 years I do not consider it necessary to decide this issue in view of my finding in respect of the first submission of the learned Counsel for the petitioner, I leave this issue to be decided in some other appropriate case.
15. Consequently, the writ petition is allowed, the decision of the Commission treating the petitioner as in eligible on the ground of over age as communicated by letters dated 16.11.90 and 18.12.1990 is quashed and the Rajasthan Public Service Commission is directed to forward the name of the petitioner to the Government or other appropriate authority for his appointment as Senior Teacher (School Lecturer) in accordance with the merit assigned by the Commission. Appropriate action in this regard shall be taken within a period of 2 (two) months after the presentation of the copy of this order. Parties are to bear their own costs.