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2.The facts of the case in brief are that the petitioner was initially appointed as work charge tracer in the office of the Executive Engineer, Irrigation Projects Division, Junagadh, on 10th July, 1975 in the pay-scale of Rs.260-400. On account of economic measure the services of the petitioner were terminated under order dated 27th October, 1975 made by the Executive Engineer, Irrigation Project Division, Junagadh. Under order dated 17th October, 1977 of the Superintending Engineer, Rjakot Irrigation Project Circle, Rajkot, the petitioner was appointed as tracer on regular establishment. The date of birth of the petitioner is 4th July, 1951. On the date of aforesaid appointment as tracer on regular establishment the petitioner was aged 26 years. Applications were invited in the year 1981 for appointment on the post of Additional Assistant Engineer. The petitioner, who fulfilled the requisite qualifications prescribed for appointment to the post of Additional Assistant Engineer (Supervisor), applied for the post. The petitioner was selected for the post of Additional Assistant Engineer by the selection committee, and he came to be appointed on the post under order annexure-A dated 5th February, 1982 of the Superintending Engineer, Rajkot Irrigation Scheme Circle, Rajkot. Under order dated 15th February, 1982 annexure-B of the Executive Engineer, Irrigation Project Division, Rajkot, under whom the petitioner was working as Tracer, he was relieved from the said post from 15th February, 1982 in order to join his new post. The order relieving the petitioner from the post of Tracer came to be cancelled under order dated 16th February, 1982 of the Executive Engineer, Irrigation Project Division, Rajkot. The petitioner made protest against the cancellation of his appointment on the post of Additional Assistant Engineer (Supervisor). The petitioner's appointment on the post of Additional Assistant Engineer was cancelled on the ground that he was overaged for the said post. Hence this special civil application before this Court.

4.The contention of the counsel for the petitioner is that the persons named in para 5 of the special civil application were also holding the post of Tracer or other posts like Clerk, Assistant Draftsman, etc., and they were not within the age limit for the post, but they were considered to be within the age limit by giving the benefit of employment on those posts. On the other hand the counsel for the respondents contended that the petitioner could not be given the benefit of age relaxation on the basis of appointment on the post of Tracer on regular establishment which was made in the year 1977 as his appointment on that post was age barred. The maximum age limit for appointment to the post of Tracer on regular establishment was 24 years. At the relevant time the petitioner was aged 26 years. Other persons, reference to whom has been made by the petitioner in para 5 of the special civil application, were within the age limit prescribed for the category of post on which they were appointed earlier to their appointment after selection on the post of Additional Assistant Engineer (Supervisor), and as such their cases are distinguishable with the case of the petitioner and it cannot be said to be a case of hostile discrimination made in the matter of public employment. It has next been contended that there is a gap of more than 2 years in between two appointments, i.e. earlier appointment of the petitioner as work charge Tracer and second appointment as Tracer on regular establishment. Lastly the counsel for the respondents contended that the relaxation in the maximum age prescribed for the post would be permissible only where the case of the candidate falls under Rule 8 of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 (hereinafter referred to as the '1967 Rules') and not otherwise and the case of the petitioner does not fall under the said rule and as such the petitioner has rightly not been appointed on the said post.

6.The counsel for the petitioner does not dispute that in the year 1977 when the petitioner was appointed on the post of Tracer on regular establishment in the Irrigation Department the maximum age limit for appointment on that post was 24 years. The petitioner was appointed as Tracer on work charge establishment on 10-7-1975. So, on that date he was more than 24 years of age. So far as the second appointment as Tracer on regular establishment is concerned, there is no dispute that he was more than 26 years. The parties are not at issue on the question that at the time both the appointments of the petitioner - as work charge Tracer and as Tracer on regular establishment - he was over aged. The counsel for the petitioner does not dispute that the persons whose names have been mentioned in para 5 of the special civil application were within the age limit prescribed for the post on which they were appointed initially in Government service.

10.'Post' has been defined in section 2 of the 1967 Act to mean a post under the State Government included in the State Services or Subordinate Service. 'Subordinate Services' are defined to mean the services and posts classified as Class III. It is not the case of either of the parties to the petition that Tracer is not class III post. Benefit of sub-rule (5) of Rule 8 would have been available to the petitioner only if he was within the age limit prescribed for the post of Tracer at the time of his first appointment in the Government service. But the nature of appointment is also spelt out in sub-rule (5) of Rule 8 as a permanent Government servant or as a temporary Government officiating continuously for six months in substantive or leave vacancy or in a vacancy caused as a result of deputation of other servants. The first appointment of the petitioner, as stated earlier, was as work charge Tracer, made on 10th July, 1975. Though it is not necessary to enter into controversy whether work charge appointment will fall under sub-rule (5) of Rule 8 of the 1967 Rules or not, that appointment came to be terminated on 27th October, 1975, and as such it was for a period less than six months. The petitioner, therefore, would not have been entitled to the benefit under the aforesaid rule for relaxation of maximum age limit prescribed for appointment to the post of Additional Assistant Engineer (Civil). Secondly, on 10th July, 1975 the petitioner was more than 24 years of age and as such otherwise also no benefit of the provisions of relaxation of upper age limit under sub-rule (5) of Rule 8 of 1967 Rules could have been given to the petitioner, for appointment to the post of Additional Assistant Engineer (Civil). So far as the second appointment of the petitioner as Tracer on temporary establishment is concerned, he was more than 26 years of age, and he was over aged for appointment on the said post itself. So, on the basis of the second appointment also the petitioner could not have been given any benefit of rub-rule (5) of Rule 8 of the 1967 Rules. The first proviso to sub-rule (5) states that such upper age limit shall apply to such candidate in a case where recruitments to a post or service is done through competitive examination or by direct selection for which experience has not been prescribed as one of the qualifications for such post. So, relaxation in the upper age limit will not be available to a candidate in a case where recruitment to the post or service is done by direct selection and experience has not been prescribed as one of the qualification for the post. The 1979 Rules which regulate recruitment and selection on the post of Supervisor (Civil) [ Additional Assistant Engineer (Civil)] provides for recruitment on the said post by direct selection and experience is not one of the qualifications prescribed for the said post. When experience is not one of the qualifications prescribed for the said post, about which there is not dispute, sub-rule (5) of Rule 8 of the 1967 Rules will not come to the rescue of the petitioner in any manner. So far as the second proviso to sub-rule (5) of 1967 Rules is concerned, suffice it to say that it does not apply to the case of the petitioner. Admittedly the post of Additional Assistant Engineer (Civil) is not required to be filled by direct selection through Public Service Commission. Secondly, the minimum qualification for the post of Tracer was not Diploma in Civil Engineering.