Chattisgarh High Court
Mukesh Kumar Yadav vs State Of Chhattisgarh on 21 June, 2016
Author: P. Sam Koshy
Bench: P. Sam Koshy
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WRIT PETITION (S) NO. 1098 OF 2013
Mukesh Kumar Yadav, S/o Shri Dilip Singh Yadav, aged about 42 years,
R/o Behind Polytechnic Colony, Near Collector Niwas, Rudri, Thana Civil
Line Rudri, District Dhamtari (C.G.)
... Petitioner
Versus
1. State of Chhattisgarh, through the Secretary, Panchayat and Rural
Development Department, DKS Bhawan, Mantralaya, Raipur (C.G.)
2. Secretary, General Administration Department, Raipur (C.G.)
3. Chief Engineer, Rural Engineering Services, office of Development
Commissioner, Raipur (C.G.)
... Respondents
WRIT PETITION (S) NO. 3305 OF 2013 Sukhchand Dewangan S/o Late Shri Ramadhin Dewangan, aged about 43 Years, R/o E/135, Tifra, Yadunandan Nagar, Bilaspur, Police Station & Post Tifra, Civil & Revenue Dist. Bilaspur (C.G.) ... Petitioner Versus
1. State of C.G. through Secretary, Panchayat & Rural Engineering Services, Mantralaya, Capital Comlex, Mahanadi Bhawan, New Raipur, Police Station Raipur, Head Post Office Raipur, Police & Revenue Dist. Raipur C.G.
2. Development Commissioner, office of Development Commissioner, Civil Lines, Raipur, Dist. Raipur (C.G.)
3. Engineer-In-Chief, Rural Engineering Services, office of Development Commissioner, Development Office, Civil Lines, Raipur, District Raipur (C.G.) ... Respondents WRIT PETITION (S) NO. 1157 OF 2013 Bhagwan Singh Netam, S/o Lt. Ram Ratan Singh, aged about 44 years, R/o Village Madhna, Post- Mahewa, Police Station Basantpur, Tahsil Wadraf Nagar, Districtt Balrampur (C.G.) ... Petitioner Versus
1. State of C.G. through Secretary, Panchayat & Rural Engineering Services, DKS Bhawan, Raipur, District Raipur (C.G.)
2. Development Commissioner, office of Development Commissioner, Civil Lines, Raipur, Dist. Raipur (C.G.)
3. Engineer-In-Chief, Rural Engineering Services, office of Development Commissioner, Development Office, Civil Lines, Raipur, District Raipur (C.G.) ... Respondents -2- WRIT PETITION (S) NO. 1160 OF 2013
1. Vibhash Tiwari S/o Vidyaprakash Tiwari aged about 40 years R/o Plot No. 60, in front of Laxminarayan Mandir, Behind Saraswati School, Saraswati Nagar, Raipur P.S. Saraswati Nagar, Raipur Distt. Raipur (C.G.)
2. Mahendra Pandey S/o G.L. Pandey aged about 40 years, R/o D/4, Saket Enclave, Near Over Bridge, Uslapur, Mungeli Road, Bilaspur, P.S. Civil Line, Distt. Bilaspur (C.G.) ... Petitioner Versus
1. State of Chhattisgarh, through the Secretary, Department of Panchayat & Rural Development, Mantralaya, Mahanadi Bhawan, New Raipur, P.S. Rakhi, District Raipur (C.G.)
2. The Commissioner, Rural Engineering Services, office of Development Commissioner, Chhattisgarh, Vikas Bhawan, Raipur, P.S. Civil Lines, Raipur, District Raipur (C.G.) ... Respondents WRIT PETITION (S) NO. 1156 OF 2013 Chhotelal Thakur S/o Sobharam Bhagat aged about 45 years, R/o Village & Post - Sakrelikala, Tahsil Sakti, District Janjgir Champa (C.G.) ... Petitioner Versus
1. State of C.G. through Secretary, Panchayat & Rural Engineering Services, DKS Bhawan, Raipur, District Raipur (C.G.)
2. Development Commissioner, office of Development Commissioner, Civil Lines, Raipur, Dist. Raipur (C.G.)
3. Engineer-In-Chief, Rural Engineering Services, office of Development Commissioner, Development Office, Civil Lines, Raipur, District Raipur (C.G.) ... Respondents WRIT PETITION (S) NO. 2120 OF 2013 Santosh Kumar Pandey, S/o D.N.Pandey, aged about 40 years, R/o Maa Bhawani Chowk, PS Kumharpara, Tah. & Distt Jagdalpur, Revenue Dist Bastar (C.G.) ... Petitioner Versus
1. State of C.G. through Secretary, Panchayat & Rural Engineering Services, DKS Bhawan, Raipur, District Raipur (C.G.)
2. Development Commissioner, office of Development Commissioner, Civil Lines, Raipur, Dist. Raipur (C.G.)
3. Chief Engineer, Rural Engineering Services, office of Development Engineer, Civil Lines, Raipur, District Raipur (C.G.) ... Respondents WRIT PETITION (S) NO. 2783 OF 2013 Ashish Kumar Choubey S/o Rameshwar Prasad Choubey, aged about 39 years, R/o Sanjay Nagar, Ward No.1, Kurud P.S. Kurud, District-Dhamtari (C.G.) ... Petitioner -3- Versus
1. State of C.G. through Secretary, Panchayat & Rural Development Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (C.G.)
2. Secretary, General Administration Department, Mahanadi Bhawan, Mantralaya, Naya Raipur (C.G.)
3. Chief Engineer, Rural Engineering Services, office of Development Commissioner, Raipur, District Raipur (C.G.) ... Respondents WRIT PETITION (S) NO. 1461 OF 2013 Ajit Kumar Singh S/o Kapil Dev Singh, aged about 41 years, R/o Mig-27, Sector 4, Deendayal Upadhyay Nagar, Raipur, PS Pandit Deendayal Upadhyay Nagar, Raipur, Dist Raipur (C.G.) ... Petitioner Versus
1. State of Chhattisgarh, through the Secretary, Panchayat & Rural Development Department, Mantralaya, Mahanadi Bhawan, New Raipur, P.S. Rakhi, District Raipur (C.G.)
2. The Chief Engineer, Rural Engineering Services, office of Development Commissioner, Chhattisgarh, Raipur, P.S. Civil Lines, Raipur, District Raipur (C.G.) ... Respondents WRIT PETITION (S) NO. 2203 OF 2013
1. Aseem Nath S/o A.K. Nath Aged About 41 Years R/o Near Mission Boys Hostel, Mandir Chowk, Jarhabhata, Police Station Civil Line, Civil & Revenue Distt. Bilaspur (C.G.)
2. Girijashankar Chaudhari S/o P.D. Chaudhari aged about 41 years R/o Chandrakanta Colony, Lingiyadih, Seepat Road, Bilaspur, Police Station Seepat Civil & Revenue Distt. Bilaspur (C.G.)
3. Kamlesh Kumar Rai S/o Rajnarayan Rai, aged about 39 years R/o Lig-78, Sharda Vihar, Korba, Police Station Korba, Civil & Revenue Distt Korba (C.G.)
4. Shiv Singh Chouhan S/o Shyamji Chouhan aged about 45 years R/o 27 Kholi, Indrasen Nagar, Bilaspur, Police Station-Civil Line, Civil & Revenue Distt. Bilaspur (C.G.) ... Petitioners Versus
1. State of Chhattisgarh, through the Secretary, Panchayat & Rural Development Department, Mantralaya, Mahanadi Bhawan, New Raipur, P.S. Rakhi, District Raipur (C.G.)
2. The Commissioner, Rural Engineering Services, office of Development Commissioner, Chhattisgarh, Vikas Bhawan, Raipur, P.S. Civil Lines, Raipur, District Raipur (C.G.) ... Respondents WRIT PETITION (S) NO. 362 OF 2014 Sunil Kumar Patel S/o Shri Lal Kumar Patel, aged about 42 years, working as Sub Engineer (On Contract Basis), office of Gramin Vikas Sambhag, Mukhya Mantri Gramin Sadak Vikas Abhikaran (MMGSY), Ramanujganj, P.S. & P.O. Ramanujganj, Distt. Balrampur (C.G.) ... Petitioner -4- Versus
1. State of Chhattisgarh, through the Secretary, Rural Engineering Department, Mantralaya, New Raipur (C.G.)
2. Chief Engineer, Rural Engineering Services, office of Development Commissioner, Raipur (C.G.) ... Respondents WRIT PETITION (S) NO. 6586 OF 2014 Pawan Kumar Dewangan S/o Shri Rajaram Dewangan, aged about 45 years, Technical Assistant Janpad Panchayat Mainpur, District Gariyaband (C.G.) ... Petitioner Versus
1. State of C.G. through Secretary, Panchayat & Rural Development, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur (C.G.)
2. Secretary, General Administration Department, Raipur (C.G.)
3. Chief Engineer, Rural Engineering Services, office of Development Commissioner, Raipur, (C.G.) ... Respondents WRIT PETITION (S) NO. 3283 OF 2013 Buddheshwar Singh Naik S/o Shri Dhani Ram Naik, aged about 42 years, R/o Village Kusmura, PO Kotra, PS Kotraroad, Civil & Revenue Distt. Raigarh (C.G.) ... Petitioner Versus
1. State of C.G. through Secretary, Panchayat & Rural Development Department, Mahanadi Bhawan, Mantralaya, New Raipur, Civil and Revenue District Raipur (C.G.)
2. Secretary, General Administration Department, Raipur (C.G.)
3. Chief Engineer, Rural Engineering Services, office of Development Commissioner, Raipur, (C.G.) ... Respondents WRIT PETITION (S) NO. 2258 OF 2013 Yogendra Kumar Sahu S/o Lt. Chhabilal Sahu, aged about 41 years, Technical Assistant Janpad Panchayat Khairagarh Distt. Rajnandgaon (C.G.) Post City Kotwali ... Petitioner Versus
1. State of C.G., through Secretary, Panchayat & Rural Development Department, New Mantralaya Bhawan, Raipur (C.G.)
2. Secretary, General Administrative Department, Raipur (C.G.)
3. Chief Engineer, Rural Engineering Services, office of Development Commissioner, Raipur, (C.G.) ... Respondents -5- WRIT PETITION (S) NO. 1099 OF 2013 Ravindra Kumar Kodme S/o Lt. Shri Tulsi Ram, aged about 44 years R/o Vill Mundpart, Post Sarona, Thana Kanker, Distt North Bastar, Kanker (C.G.) ... Petitioner Versus
1. State of C.G. through Secretary, Panchayat & Rural Development Department, DKS Bhawan, Mantralaya, Raipur (C.G.)
2. Secretary, General Administration Department, DKS Bhawan, Mantralaya, Raipur (C.G.)
3. Chief Engineer, Rural Engineering Services, office of Development Commissioner, Raipur, District Raipur (C.G.) ... Respondents WRIT PETITION (S) NO. 1101 OF 2013 Kishor Kumar Gajendra S/o Radheshyam Gajendra, aged about 41 years, R/o Baster Road, Sorid Nagar, Dhamtari, Thana City Kotwali, Distt. Dhamtari (C.G.) ... Petitioner Versus
1. State of C.G. through Secretary, Panchayat & Rural Development Department, DKS Bhawan, Mantralaya, Raipur (C.G.)
2. Secretary, General Administration Department, DKS Bhawan, Mantralaya, Raipur (C.G.)
3. Chief Engineer, Rural Engineering Services, office of Development Commissioner, Raipur, District Raipur (C.G.) ... Respondents For Petitioners : Mr. Mateen Siddiqui, Mr. Ajay Shrivastava, Mr. Dhani Ram Patel, Mohd. Tariq Haider, Advocates and Mr. Anurag Singh, Advocate under instructions of Mr. Manoj Paranjpe, Advocate and Mr. Tridip Bhattacharya, Advocate, under instructions of Mr. Prateek Sharma, Advocate.
For Respondent-State : Mr. R.K. Gupta, Deputy Advocate General.
Hon'ble Shri Justice P. Sam Koshy C A V Order 21/06/2016
1. These batch of writ petitions have been preferred seeking for a direction to the State Government for considering the candidature of the Petitioners for appointment to the post of Sub-Engineer (Civil) after providing them relaxation of age as enumerated in the advertisement. -6-
2. Since the issue involved in all these cases being similar and identical and the post for which has been applied by all the Petitioners being the same and the advertisement also being the same, for convenience sake, Writ Petitions (S) No. 1098 of 2013 (Mukesh Kumar Yadav Vs. State of Chhattisgarh and others) has been taken up as the lead case and Shri Mateen Siddiqui, learned Counsel for the Petitioners in the said writ petition along with Writ Petition (S) Nos. 2783 of 2013, 1099 of 2013 and 1101 of 2013 has led arguments on behalf of the Petitioners.
3. Before this Court delves into the merit of the case, it is necessary to give the brief factual matrix of the case which would in most of the cases be similar or identical, and if not only with slight variation. The State of Chhattisgarh on 28.4.20012 issued an advertisement calling for applications from eligible candidates for filling up the posts of Sub- Engineer (Civil), Sub-Engineer (Electrical), Assistant Draftsman and Tracer to be filled up in the Rural Engineering Services Department under the Panchayat and Rural Development Department, State of Chhattisgarh.
4. All the Petitioners in the present batch of writ petitions had applied for the post of Sub-Engineer (Civil) and the last date for submission of the application initially was fixed as 31.5.2012 but later on it was extended till 25.8.2012. As per the said advertisement, the age limit prescribed in the advertisement in Clause 3 was fixed at 20 years as on 1.1.2013 to be the minimum age for applying and the maximum age permissible was 35 years as on 1.1.2013.
5. While providing relaxation to the age limit prescribed in Clause 3, the State Government had granted relaxation to different categories of persons and these relaxations were termed as special relaxations and were divided into two parts, i.e., Clause 3 (i) and 3 (ii). Clause 3(i) -7- consisted of nine relaxations. Some of the relevant relaxations for the purpose of adjudication of the present issue are 3(i)(2), 3(i)(7) and 3(i)(9) which for ready reference are being reproduced as under:-
"3(i)(2) NRrhlx<+ 'kklu ds LFkk;h@vLFkk;h@odZ pktZ ;k dafVatsalh isM deZpkfj;ksa rFkk NRrhlx<+ jkT; ds [email protected] vkfn ds deZpkfj;ksa ds laca/k esa mPpre vk;q lhek 38 o"kZ jgsxhA ;gh vf/kdre vk;q ifj;kstuk fdz;kUo;u lfefr ds varxZr dk;Zjr~ deZpkfj;ksa ds fy, Hkh Lohdk;Z gksxhA XXX XXX XXX 3(i)(7) lkekU; iz'kklu foHkkx ds ifji= dz-
,Q&1&2@2002@1@3] fnukad 02-06-04 ds vuqlkj f'k{kkdfeZ;ksa dks 'kkldh; lsok esa mrus o"kZ dh NwV nh tk,xh] ftrus o"kZ f'k{kkdehZ ds :i esa lsok dh gS] blds fy, 6 ekg ls vf/kd lsok dh vof/k ,d o"kZ dh lsok ekU; dh tk,xh rFkk og NwV vf/kdre 45 o"kZ dh vk;q lhek rd jgsxhA ftu oxkZsa dks iwoZ ls gh vk;q lhek esa fo'ks"k NwV dk ykHk fn;k tk jgk gS (vuq-tkfr] vuq-tu- tkfr] v-fi-o-] efgyk vkfn) os bl funsZ'k ls izHkkfor ughsa gksaxsA XXX XXX XXX 3(i)(9) NRrhlx<+ lkekU; iz'kklu foHkkx ea=ky; ds funZs'k dzekad ,Q 3&2@2002@1&3] fnukad 30-01-20124 vuqlkj lafonk ij fu;qDr vf/kdkfj;ksa@deZpkfj;ksa dks 'kkldh; lsok esa vkosnu izLrqr djus gsrq vf/kdre vk;q lhek esa ikap o"kZ rd NwV dk ykHk fn;k tkosxk] vFkkZr fu/kkZfjr vk;q lhek esa mrus o"kZ dh NwV nh tk,xh] ftrus o"kZ mlus lafonk ds :i esa lsok dh gS] ;g NwV vf/kdre 38 o"kZ dh vk;q lhek rd jgsxhA"
6. Likewise in the category of 3(ii), there were three separate relaxations of which the relevant relaxation for the purpose of present dispute is relaxation no.1, i.e., 3(ii)(1) which for ready reference is being reproduced herein under:-
"3(i)(1) ;fn vH;FkhZ NRrhlx<+ 'kklu }kjk ?kksf"kr vuqlwfpr tkfr] vuqlwfpr tutkfr ;k vU; fiNM+k oxZ dk gS] rks vk;q lhek esa vf/kdre ikap o"kZ dh NwV nh tk,xhA"
7. The other important aspect is that in the advertisement itself there was a note prescribed in which there were two conditions clearly stipulated and these conditions for ready reference again is being reproduced as follows:-
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"Vhi%& (v) fcUnq dzekad 3 (,d) esa vf/kd ykHkdkjh okyh ,d gh NwV feysxhA
(c) fcUnq dzekad 3 (nks) ds varxZr izksRlkgu Lo:i vf/kdre vk;q lhek esa fofHkUu dk;kZsa@;kstukvksa ds varxZr nh xbZ NwVksa esa ls ;fn dksbZ vkosnd ,d ls vf/kd NwVksa dk vk/kkj j[krk gS rks mls vk;q lhek esa lokZf/kd (vf/kdre) ykHk okys fdlh ,d vk/kkj (izksRlkgu okys) ds fy;s ns; NwV feysxhA ;g NwV fcUnq dzekad (,d) esa nh xbZ fo'ks"k NwV ds vfrfjDr gksxhA"
8. Admittedly, all the Petitioners before this Court are age barred, that is to say that if the candidates are of the General category, they have crossed the age of 35 years and all the persons belonging to the reserved category, i.e., in SC/ST/OBC category, these candidates have crossed the age of 40, i.e., after adding the relaxation of five years which the reserved category candidates are entitled for. Thus, though these writ petitioners had submitted their application and their claim was also scrutinised and were called for interview and in the process of completion of the selection it was found that all of whom were over aged, even after granting them the relaxation under the relaxation clause of 3(i) and 3(ii) as per the advertisement and the name of these Petitioners were put in the list of ineligible candidates. It is these inclusion of the name of the Petitioners in the list of ineligible candidates which is under challenge.
9. According to the Petitioners, the Note 'A' put by the Respondents in the advertisement is arbitrary and violative of Article 14 of the Constitution of India. They further submits that the relaxation for the social status is a different thing and the other special relaxation cannot be coupled with that of the reservation of the social status and cannot restrict the entitlement of claiming only one. In other words, according to the Petitioners, they are also entitled for more than one relaxation as envisaged under Clause 3(i) and each of the relaxation in this clause has to be calculated independently and separately and adding these relaxations the Petitioners would definitely become eligible and their candidature could not have -9- been rejected holding them to be age barred. It was also contended by the Petitioners that the granting of age relaxation to the Shiksha Karmis under Clause 3(i)(7) of the advertisement up to the maximum age limit of 45 years taking into consideration their service rendered as Siksha Karmi is also violative of Article 14 of the Constitution and that the Petitioners are also entitled for the similar relaxation so granted to the Siksha Karmis and according to the Petitioners the said contention of the Petitioners stands fortified from the decision of the Division Bench of this High Court in the case of Dr. Pranjal Pathak and others Vs. State of Chhattisgarh and others in Writ Petition (S) No. 5830 of 2010 and other batch of matters decided by a common order dated 29.3.2012. According to the Petitioners, if at the first instance the relaxation in addition to the social status and the green card holder, the relaxation of their previous service is taken into account they would become eligible. Secondly, if the Petitioners are granted the relaxation of age as has been granted to the Siksha Karmis under Clause 3(i)(7) then also the Petitioners would become eligible. Thus, the action on the part of the Respondents in putting the names of the Petitioners in the list of ineligible is bad in law and is liable to be struck down.
10. In addition, the Counsel for the Petitioners referred to a case of one Prakash Chand Sonkar who was also appointed in the post of Sub- Engineer (Civil) in the previous recruitment conducted by the Respondents and in whose case though initially the State Government had put him in the list of ineligible candidates but subsequently granted him the relaxation of social status, green card holder as well as the previous service and adding all these relaxations together he was later on considered eligible and was granted employment and therefore on this -10- ground also the Petitioners assail the action of the Respondents in putting them in the list of ineligible candidates being discriminatory.
11. Counsel for the Petitioners further relied on the decision of the Madhya Pradesh High Court reported in 2014 (3) M.P.L.J. 477 (Anita Jain Badkul Vs. State of M.P. and another) as well as the judgment of the Division Bench of this High Court in the case of State of Chhattisgarh and another Vs. Praveen Kumar Dwivedi and others in Writ Appeal No. 201 of 2013 decided on 2.1.2014.
12. Shri Dhani Ram Patel, learned Counsel for the Petitioners in Writ Petition (S) No. 362 of 2014, Shri Anurag Singh under instructions of Shri Manoj Paranjpe, learned Counsel appearing for the Petitioners in Writ Petition (S) Nos. 1156 of 2013, 1157 of 2013 and 3305 of 2013, Shri Tridip Bhattacharya under instructions of Shri Prateek Sharma, learned Counsel for the Petitioners in Writ Petition (S) Nos. 2203 of 2013, 1461 of 2013 and 1160 of 2013 and Shri Ajay Shrivastava, learned Counsel appearing for the Petitioners in Writ Petition Nos. 2258 of 2013, 3283 of 2013 and 6586 of 2014 have made a statement before the Court that they do not intend to add anything in addition to what Shri Mateen Siddiqui, learned Counsel for the Petitioner in Writ Petition (S) No. 1098 of 2013 has submitted and they in fact adopt the arguments submitted by Shri Siddiqui.
13. Mohd. Tariq Haider, learned Counsel for the Petitioner in Writ Petition (S) No. 2120 of 2013 has submitted that his is a case where he is claiming for age relaxation in accordance with the advertisement yet he has been placed in the list of ineligible candidates which is bad in law. According to Shri Tariq Haider his is a case where the Petitioner had claimed for relaxation in accordance with Clause 3(i)(9) where he would get relaxation up to the age of 38 and in addition he is also entitled for two -11- years of relaxation under Clause 3(ii)(1) on account of relaxation to a green card holder. Thus, if the relaxation under Clause 3(i)(9) and 3(ii)(1) are added the age relaxation would get extended till 40 years of age and that the Petitioner, namely, Santosh Pandey, as on 1.1.2013 was aged about 39 years 9 months. His date of birth is 2.4.1973 and as such his non-inclusion in the list of eligible candidates is bad in law, arbitrary and his petition deserves to be allowed and the Respondent authorities be directed accordingly.
14. Opposing the petitions, Shri R.K. Gupta, learned Deputy Advocate General on behalf of the State submitted that the entire case of the Petitioners is totally misconceived and the petitions deserve to be rejected. According to the State, the advertisement was issued on 24.4.2012 and these writ petitions were filed almost after one year and that too after the selection process was at completion stage. As per the State Counsel, the entire recruitment has been done purely in accordance with the conditions contained in the advertisement and that the Respondents have conducted the recruitment strictly following the conditions stipulated in the advertisement. Therefore, the action cannot be faulted at nor can it be termed to be arbitrary or malafide. State Counsel further submitted that the pleadings in the writ petitions would also show that in no case the Petitioners have challenged the conditions of the advertisement and in absence of challenge to the conditions of the advertisement the entire claim of the Petitioners becomes unsustainable and the writ petitions deserve to be rejected on that ground alone. There is also no pleadings made by the Petitioners in this regard and in the absence of pleadings challenging the conditions to the advertisement the claim of the Petitioners questioning the placing of the Petitioners in the list of ineligible candidates having been done in accordance with the -12- conditions stipulated in the advertisement cannot be said to be unjustified. The State Counsel also submits that the Note given in the advertisement to the extent of restricting the eligibility of relaxation to any one from among the various categories under Clause 3(i) and also to one of the relaxations under Clause 3(ii) stand to reason or else it may lead to a stage of absurdity wherein if a candidate is allowed to take advantage of all the relaxations separately then there shall be no upper age limit for recruitment and therefore also the claim of the Petitioners deserves to be rejected and does not warrant any interference.
15. Referring to the submission of the Counsel for the Petitioners regarding the case of Prakash Chand Sonkar who was given employment granting more than one relaxations, the State Counsel submits that the said advantage as given to Shri Prakash Chand Sonkar cannot be granted to the Petitioners for the reason that firstly the appointment of Shri Prakash Chand Sonkar was conducted in an entirely different recruitment process held in the past. Secondly, when the advertisement from which Shri Sonkar was granted employment, the conditions as stipulated in the present advertisement dated 28.4.2012 were not there. He further submits that the Petitioners cannot claim negative equity comparing their case with that of Shri Prakash Chand Sonkar who was recruited in a previous recruitment held in the past. If for some reasons even if for argument sake it is accepted that the State committed a mistake, the Petitioners cannot claim advantage of negative equity nor can the State be permitted to perpetuate the same further. According to the State Counsel, once when the advertisement had specific conditions enumerated and the Petitioners having participated knowing fully well the conditions therein, the Petitioners now cannot turn back and challenge the same. Counsel for the State further submitted that the Petitioners were fully aware of the -13- conditions in the advertisement and that they did not think it proper to challenge the advertisement in the first instance and having participated in the process of selection and on being declared eligible they cannot now turn back and challenge the advertisement or for that matter the selection process which has been done in accordance with the advertisement.
16. It was further submitted by the State Counsel that a perusal of the pleadings would show that it is not the case of the Petitioners that the recruitment has been conducted in violation of any statutory rules and if there is no allegation of violation of statutory provision and the recruitment having done in accordance with the advertisement, the Petitioners do not have any case and the writ petitions deserve to be rejected. So far as the judgment of Dr. Pranjal Pathak referred by the Petitioners is concerned, Counsel for the State submitted that a bare perusal of that judgment would clearly indicate that it was passed under entirely different factual background as well as the statutory provisions were also entirely different and therefore that judgment cannot be made applicable in the present context. So far as the judgment of the Gwalior Bench of the Madhya Pradesh High Court in the case of Anita Jain Badkul as well as the judgment of the Division Bench of this High Court in Writ Appeal No. 201 of 2013 are concerned, he further submits those were the cases where the thrust of the argument of the Petitioners was that the recruitment was in violation of the rule position and that the executive instructions could not curtail the benefit provided in the rules and that the rules would always prevail upon the executive instructions. Such is not the case in the present batch of writ petitions nor is there any such pleading or allegation or the case of the Petitioners and therefore the ratio laid down in the said two decisions cannot be applied in the present cases and thus prayed for the rejection of the writ petitions.
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17. The admitted fact which is explicit from the records is that admittedly an advertisement was issued on 28.4.2012 for filling up of the posts of Sub-Engineer (Civil), Sub-Engineer (Electrical), Assistant Draftsman and Tracer in the Rural Engineering Services Department under the Panchayat and Rural Development Department, State of Chhattisgarh. In the advertisement itself the eligibility criterias were clearly mentioned. The eligibility criteria both in respect of minimum qualification and experience required for the posts as also the minimum and the maximum age was also fixed. So far as the determination of age was concerned, the cut off date mentioned in the advertisement was the first day of January that would fall immediately after the advertisement was published; that is to say since the advertisement was issued on 28.4.2012 the cut off date determining the age was that of 1.1.2013. Clause 3 of the said advertisement very emphatically dealt with the topic of age limit and it also very clearly classified various relaxations which a candidate would get under two parts, i.e., 3(i) and 3(ii). 3(i) has nine different relaxations and 3(ii) has three different relaxations. However, after giving the various relaxations which were permissible to a candidate, the advertisement very specifically by way of a Note has specified that all the different relaxations which a candidate is entitled for he/she would be entitled for only one relaxation. Now since the advertisement itself was very specific as to the fact that all the various relaxations in the two categories the candidate would be entitled for only one of the relaxations in each of the two categories. It seems that the Petitioners were not aggrieved by the said clause of the advertisement and it is therefore that they did not thought it proper for challenging it when the advertisement was published on 12.2.2004 itself, knowing fully well about the conditions of age relaxations provided in the advertisement and also knowing well that they would be -15- ineligible for applying for the said posts on the basis of the conditions stipulated in the advertisement yet without challenging the clause or the advertisement the Petitioners tried to apply for the said posts taking a chance.
18. The main reliance of the Petitioners is in respect of the judgment of the Division Bench in the case of Dr. Pranjal Pathak (supra) which had already by that time been pronounced and still the Petitioners did not thought it proper to challenge the advertisement on the ground of it being hit by Article 14 of the Constitution of India. The present writ petitions were filed after about more than a year from the date of advertisement now challenging the advertisement as well as the selection process.
19. Another admitted position as is clear from the facts of the case is that all the Petitioners belonging to the General category are aged more than 35 years as on 1.1.2013. Likewise, all those candidates who belonged to the Reserved category have crossed the maximum age of 40 taking into consideration the five years of relaxations which they would be entitled for as on 1.1.2013. One of the Petitioners, i.e., Santosh Pandey, the Petitioner in Writ Petitions (S) No. 2120 of 2013, who is claiming one relaxation under each of the two categories advertised i.e., three years of relaxations by virtue of his serving under the Respondents as a contract employee plus relaxation as a Green Card holder, did not possess a Green Card on the date of advertisement nor could he obtain the Green Card subsequently. His entire case is that his wife had undergone Sterilization. Thus, the said Petitioner also in absence of a genuine Green Card in his possession could only get an advantage of three years of relaxation being a contractual employee and admittedly he was over 38 years of age as on 1.1.2013.
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20. In the opinion of this Court, all these writ petitions are hit by the principal of estoppel for the reasons that the Petitioners having participated in the selection process in spite of knowing fully well that as per the advertisement they were not eligible for their candidature without challenge to the advertisement having participated and found ineligible. The Petitioners cannot now turn around and challenge the qualifying criteria itself.
21. The Supreme Court in the case of Dhananjay Malik and others Vs. State of Uttaranchal and others [2008 (4) SCC 171] in very categoric terms has held that :
"7. .....Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules."
22. Likewise, the law laid down in the case of Dr. Pranjal Pathak (supra) is based on the judgment of Marripati Nagaraja Vs. Govt. of Andhra Pradesh [2007 (11) SCC 522].
23. If in the given facts and circumstances if the Petitioners had taken calculated chance without participating in the selection process it is only because they were unsuccessful in the selection process and they now cannot be permitted to approbate and reprobate crying foul on the advertisement as well as the selection process. The facts in the present case would also reflect that it is only after the Petitioners were declared ineligible in accordance with the conditions stipulated in the advertisement, the Petitioners now have filed the petitions questioning the advertisement and the conditions therein.
24. In 2010 (12) SCC 576 (Manish Kumar Shahi Vs. State of Bihar and others), the Supreme Court has held that :
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"16. .....The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition".
This view of the Supreme Court was based upon the law laid down in this regard in the case of Madan Lal Vs. State of J&K [1995 (3) SCC 486].
25. In one of the recent decisions the Supreme Court in the case of Ramesh Chandra Shah and others Vs. Anil Joshi and others [2013 (11) SCC 309] relying upon the previous decisions held as under:-
"24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
26. Yet again in one of a very recent decision reported in 2016 (1) SCC 454 (Madras Institute of Development Studies and another Vs. K. Sivasubramaniyan and others), the Supreme Court relying upon all its previous decisions and also the decisions quoted hereinabove took the same stand of the candidates having participated in the selection process without any demur do not have the right later on to turn around and challenge the advertisement and the selection process.
27. The Petitioners knew all the relevant facts as laid down in the advertisement. They did not before participating in the selection process or immediately thereafter raise even their little finger against the conditions stipulated in the advertisement and seem to have voluntarily tried to participate putting up their candidature taking the chance of having a favourable recommendation. Having done so, it is not open for them to turn around and question the conditions of advertisement now. If the law -18- did not favour the Petitioners, sympathy cannot be a ground for grant of relief contrary to the law.
28. Thus, in view of the aforesaid law laid down by the Supreme Court this Court is of the opinion that no good case is made out calling for interference with the advertisement and the selection process and all the petitions preferred by the Petitioners are not sustainable and deserve to be rejected.
29. So far as the ground of granting the advantage of the judgment dated 29.3.2012 in the case of Dr. Pranjal Pathak (supra) that is the judgment of the Division Bench, the said judgment is quite distinguishable for the reason that, that was a case where the advertisement was for the posts of Assistant Professors and the Assistant Professors who were working on contract basis were not granted the age relaxation whereas the Shiksha Karmis who were working with the Respondents were granted the age relaxations up to 45 years. Thus, the Assistant Professors had filed the petition challenging the advertisement of providing relaxation to Shiksha Karmis up to the age of 45 years and denying the same to the Assistant Professors working on contractual basis being discriminatory and hit by Article 14 of the Constitution of India. Whereas such is not the facts and circumstances in the present case and therefore the ratio laid down by the Division Bench in the case of Dr. Pranjal Pathak cannot be applied in the instant case and is therefore distinguishable.
30. So far as the judgment of the Madhya Pradesh High Court in the case of Anita Jain Badkul, that was a case where the rules provided for grant of two relaxations but by executive instructions the two relaxations were curtailed by one relaxation in which the High Court had held that the executive instructions cannot prevail upon the statutory rules and it is the rules which would always proceed over the executive instructions. Such is -19- also not the case in the present petitions and the judgment of the Madhya Pradesh High Court is thus distinguishable.
31. So far as the instance of Prakash Chand Sonkar, an employee of the State Government who was appointed granting multiple relaxations earlier is concerned, the said cannot be a ground for the Petitioners to claim the same relief for the reason that Prakash Chand Sonkar was appointed from different advertisement wherein no such conditions were stipulated. Even otherwise, if for any reasons if the State Government has committed error earlier the Petitioners cannot get advantage of negative equity.
32. Lastly, a perusal of the advertisement would clearly reflect that it is not a case where the Petitioners are not being provided relaxation in the age limit. A perusal of Clause 3 of the advertisement would clearly reflect that if a candidate falls in any of the categories from 3(i)(1) to 3(i)(9), he is eligible for grant of the same but there is a cap of taking one relaxation at a time.
33. The claim of the Petitioners that they should be treated at par with that of Shiksha Karmis is totally unjustified as it is the prerogative of the State Government to decide grant of relaxation for different categories of persons like persons belonging to the Reserved categories, the persons who are discharging the duties as Shiksha Karmis for long, and these relaxations are given under entirely different social background and therefore since these relaxations have been given by the State Government as a policy decision taking into consideration the ground realities and the prevailing social circumstances, the relaxations so given to the Shiksha Karmis cannot be given to the Petitioners who fall under a entirely different class and category. Thus, the relaxations so given to the -20- Shiksha Karmis would not be hit by Article 14 of the Constitution of India nor can it be said to be discriminatory.
34. For all the foregoing reasons, this Court is of the opinion that the Petitioners have not been able to make out a good case for challenging the advertisement and the recruitment process and the petitions being devoid of substance the same deserve to be and are accordingly dismissed.
Sd/-
(P. Sam Koshy)
/sharad/ Judge