Rajasthan High Court - Jaipur
Om Prakash Bairwa vs State Of Raj And Ors on 21 April, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 5863 / 2017
Om Prakash Bairwa S/o Late Shri Nanag Ram Bairwa, by Caste
Bairwa,, Aged About 43 Years, Plot No. 247, Raghunathpuri IInd,
Near Airport, Sanganer, Jaipur, Rajasthan
----Petitioner
Versus
1. State of Rajasthan Through Its Principal Secretary &
Commissioner, Panchayat Raj Department, Government of
Rajasthan,, Secretariat, Jaipur
2. Director, Primary Education Rajasthan,, Bikaner (Rajasthan)
3. Additional Exam Controller & Chief Executive Officer, Zila
Parishad,, Karauli (Rajasthan)
4. District Education Officer (Primary), Department of Education,,
District Karauli, (Rajasthan)
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Sudhindra Kumawat
For Respondent(s) : Mr. S.K. Gupta, AAG
_____________________________________________________
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Judgment
21/04/2017
The present writ petition has been filed under Article
226 of the Constitution of India, praying that the respondents be
directed to relax the upper age limit in case of the petitioner, as he
successfully cleared the Rajasthan Teacher Eligibility Test and
made to the merit list.
Admittedly, the petitioner as on today is 43 years old.
Maximum age prescribed for recruitment of the Teacher is 35
years. This Court in Suresh Chander Meena & Ors. vs.
Secretary, Rajasthan Subordinate & Ministerial Services
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Selection Board & Anr., SBCWP No.14934/2016, while
deciding bunch of writ petitions, on 19.11.2016 has held as
under:-
""Since the controversy raised is in narrow compass, the
learned counsel for the parties without filing rejoinder have
prayed that the arguments be heard and writ petitions be
decided as competitive examination is scheduled to be held
in the near future.
The learned counsel for the petitioners have
urged that since the Notification dated 23.9.2008 directed
various departments of the State of Rajasthan to determine
and specify the vacancies qua each year, and since the
exercise to this effect was not carried by the State of
Rajasthan, taking ratio of law laid in the case of Prakash
Chand's case (supra), petitioners be held eligible and be
permitted to appear in the competitive examination.
It is time to notice case law to answer the
question poised before this Court.
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
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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
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.
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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.
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
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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 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.
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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.
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
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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 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
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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
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.
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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
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.
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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
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
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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."
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.
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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
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: -
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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
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."
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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 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.
(15 of 16) [CW-5863/2017] 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.
In view of above, the present petitions stand disposed of.""
In view of legal position enunciated in the case of Suresh Chander Meena (supra), which has been reproduced above, this Court cannot come to the rescue of the petitioner. The petitioner if so advised may file a representation to the State (16 of 16) [CW-5863/2017] Government under rule 296 of Panchayati Raj Rules, 1996.
Therefore, as held in Suresh Chander Meena's case (supra) in the interest of justice, the present petition is disposed of and the petitioner is granted liberty to make an individual representation to the State Government under rule 296 of Panchayati Raj Rules, 1996 and other co-related rules applicable to the case of the relaxation with regard to age. It is ordered that in case representation is filed by the petitioner, in individual capacity within two weeks from today, the State Government shall take decision upon the representation so filed within a period of four weeks independently without pursuaded by any observation made by this Court.
It is further ordered that till representation made by the petitioner is decided by the State Government, respondents shall not cancel the candidature of the petitioner and shall keep one seat reserved for the petitioner in his category.
The learned counsel for the petitioner undertakes to produce a copy of this order before the Chief Executive Officer, Zila Parishad, Karauli.
A copy of this order under the seal and signature of the Court Master be handed over to Mr. S.K. Gupta, AAG counsel for the respondents for onward transmission and necessary compliance.
(KANWALJIT SINGH AHLUWALIA)J. Mak/-