Madhya Pradesh High Court
Suhas Dhande vs The State Of Madhya Pradesh on 26 April, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH: JABALPUR
(Division Bench)
(1) WP No. 2722/2018 (S):
(Niharika Shukla & others v. State of M.P. & others)
WITH
(2) WP No. 2830/2018 (S):
(Dr. Gajendra Singh v. State of M.P. & others)
(3) WP No. 2916/2018 (S):
(Dharmendra Sharma v. State of M.P. & others)
(4) WP No. 2919/2018 (S):
(Dr. Richa Shrivastava & others v. State of M.P. & others)
(5) WP No. 3344/2018 (S):
(Smt. Jyoti Wadhwa v. State of M.P. & Another)
(6) WP No. 3862/2018 (S):
(Dr. Anurag Mishra & others v. State of M.P. & others)
(7) WP No. 3903/2018 (S):
(Pawan Kumar Verma & others v. State of M.P. & others)
(8) WP No. 3915/2018 (S):
(Dr. Neetu Purohit v. State of M.P. & others)
(9) WP No. 3991/2018 (S):
(Dr. Sangeeta Shukla v. State of M.P. & others)
(10) WP No. 4009/2018 (S):
(Dr. Raghuvendra Mohan Tripathi & others v. State of M.P.
& others)
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(11) WP No. 4585/2018 (S):
(Manish Kumar Thakur v. State of M.P. & others)
(12) WP No. 4820/2018 (S):
(Smt. Varsha Dubey v. State of M.P. & others)
(13) WP No. 488/2018 (S):
(Anita Thakur v. State of M.P. & Another)
(14) WP No. 2904/2018 (S):
(Dr. Rajendra Singh Nigam & others v. State of M.P. &
others)
(15) WP No. 3724/2018 (S):
(Ku. Kanika Munshi & Another v. State of M.P. & Another)
(16) WP No. 3649/2018 (S):
(Ku. Basanti Alawa v. State of M.P. & others)
(17) WP No. 1765/2018 (S):
(Sandeep Charpota & others v. State of M.P. & Another)
(18) WP No. 4741/2018 (S):
(Dr. Kamna Sharma v. State of M.P. & Another)
(19) WP No. 3313/2018 (S):
(Smt. Shivangana Bhadauria v. State of M.P. & Another)
(20) WP No. 3268/2018 (S):
(Komal v. State of M.P. & Another)
(21) WP No. 1128/2018 (S):
(Anil & others v. State of M.P. & Another)
(22) WP No. 5359/2018 (S):
(Dr. Chakradhar Sharma v. State of M.P. & others)
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(23) WP No. 1822/2018 (S):
(Ravi Shankar Pathak v. State of M.P. & others)
(24) WP No. 4768/2018 (S):
(Vishal Katyal v. State of M.P. & Another)
(25) WP No. 5549/2018 (S):
(Dr. Pooja Chaturvedi & others v. State of M.P. & others)
(26) WP No. 5254/2018 (S):
(Dr. Kamlesh v. State of M.P. & Another)
(27) WP No. 5224/2018 (S):
(Neha Mukati v. University Grants Commission & others)
(28) WP No. 5595/2018 (S):
(Vikas Mahore v. State of M.P. & Another)
(29) WP No. 5729/2018 (S):
(Dr. Jitendra Kumar Shukla v. State of M.P. & Another)
(30) WP No. 5085/2018 (S):
(Binod Singh v. State of M.P. & others)
(31) WP No. 5868/2018 (S):
(Suhas Dhande v. State of M.P. & Another)
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CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla, Judge
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Appearance:
Shri Swapnil Ganguly, Shri Brindavan Tiwari, Shri Utkarsh Agrawal,
Shri Parag Tiwari, Shri Satya Prakash Mishra, Shri Gaurav Tiwari, Shri
Dharmendra Soni, Shri Kashi Ram Patel, Shri Kabeer Paul and Shri Pranay
Gupta, Advocates for the respective petitioners.
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Shri Amit Seth, Government Advocate for the respondents/State
Shri Prashant Singh, Senior Advocate with Shri Manas Mani Verma,
Advocate for the respondent - M.P. Public Service Commission.
Smt. Nirmalaya Nayak with Ku. Priyanka Mishra, Advocate for the
respondent - University Grants Commission.
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Whether Approved for Reporting : Yes
Law Laid Down:
The statutory Rule contemplates that the educational qualification for
appointment as Assistant Professor is "as prescribed by the University
Grants Commission", therefore, there is no contradiction between the
UGC Regulations and/or statutory Rules framed.
There is no reason to question the wisdom of the State Government in
grouping the allied subjects with the relevant subjects as none of the
subject could be pointed out to be unconcerned or unrelated with the
relevant subjects. Still further, the State Government as an employer is
in better position to judge the suitability of a candidate for
appointment. It is a decision of the employer to recruit candidates,
which the employer considers appropriate.
There is no post advertised for the allied subjects, therefore, the
candidates who are qualified in the allied subjects cannot be
disqualified for appearing in the basic subject. All the candidates are
required to appear in the same test in the relevant subjects. Therefore,
it is level playing field for all the candidates even if the candidate has
obtained degree in the allied subject.
Non-advertisement of any vacant post does not confer any right with
any aspiring candidate to seek inclusion of such posts in the
recruitment process. Relied - Supreme Court decisions in (2016) 6
SCC 532 (Kulwinder Pal Singh and another vs. State of Punjab
and others) and (1985) 1 SCC 122 (Jatinder Kumar and others vs.
State of Punjab and others).
Significant Paragraph Nos. : 02, 04, 05, 06, 10 to 13, 15 to 17
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ORDER
(26th April, 2018) Per : Hemant Gupta, Chief Justice:
The challenge in the present bunch of writ petitions is to the Advertisement No.07/2017 dated 12.12.2017 issued by the M.P. Public Service Commission inviting applications for the posts of Assistant Professor under the Higher Education Department, Government of Madhya Pradesh.
02. The advertisement in question has three separate tables giving details of the posts advertised in the each subject. The first table is in respect of backlog vacancies; the second table is in respect of the vacancies which have arisen on account of promotion etc. and the third table is in respect of the newly created posts. The condition of eligibility relevant for the post of Assistant Professor as involved in the present set of petitions is that the candidate must have been awarded Ph.D. Degree in terms of the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009 (or short "the 2009 Regulations"). The relevant eligibility condition/essential qualification for appointment to the post of Assistant Professor as enumerated in Clause Two (G) of the Advertisement which is in Hindi, on being translated into English, reads as under:-
"(i) Good academic record as defined by the concerned University with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign University.6
(ii) Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or a similar test accredited by the UGC such as SLET/SET etc. Note: The candidates who have succeeded in SET conducted by State of Madhya Pradesh alone shall be eligible. The candidates who have passed SET/SLET conducted by other States shall not be eligible.
(iii) Notwithstanding anything contained in sub-clauses (i) and (ii) above, the candidates, who are, or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009 or the subsequent Regulations if notified by the UGC, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions. Further, the award of degrees to candidates registered for the M.Phil./Ph.D. Programme prior to July 11, 2009 shall be governed by the provisions of the then existing Ordinances/Bylaws/Regulations of the Institution awarding the degrees and the Ph.D. candidates shall be exempted from the requirement of the minimum eligibility condition of "NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions subject to the fulfillment of the following conditions:-
(a) Ph.D. Degree of the candidate awarded in regular mode only;
(b) Evaluation of the Ph.D. thesis by at least two external examiners;
(c) Candidate had published two research papers out of which at least one in a referred journal from out of his/her Ph.D. work;
(d) The candidate had presented two papers in seminars/conferences from out of his/her Ph.D. work;
(e) Open Ph.D. viva-voce of the candidate had been conducted.
(a) to (e) as above are to be certified by the Vice Chancellor/ Pro- Vice Chancellor/Dean (Academic Affairs)/ Dean (University Instructions) Note: It has been clarified by letter No.F-1-118/2012/38-1, dated 05th December, 2017 issued by Higher Education Department, State of Madhya Pradesh that:-7
The aforesaid eligibility criteria shall also apply to the candidates who were registered prior to 11.07.2009 and have acquired Ph.D. after 11.07.2009 till the coming into force of the Regulations. In this context, certificate issued by the University shall be recognized.
(iv) NET/SLET/SET shall also not be essential for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted.
*** *** ***
Note:-
01. *** *** ***
2. As per Order No.F 1-118/2012/38-1, dated 28.11.2017 issued by the Higher Education Department, Govt. of Madhya Pradesh the information with regard to the allied subjects of the concerned subjects is as follows:-
No. Subject Allied Subjects
1 Botany 1. Micro Biology
2. Bio Technology
3. Bio Science
4. Environmental Science
5. Forestry
6. Bio Chemistry
7. Bio Informatic Science
8. Genetics
*** *** ***
15. Sanskrit 1. Yoga
1. Allied subjects of the subjects mentioned in Column (2) have been described in Column (3). The candidates of subjects mentioned in Column (3), can apply for the subjects mentioned in Column (2).
2. The candidates possessing Post-Graduate degree in the allied subjects of more than one subject shall be eligible to appear against the vacant post for any one main subject.
3. Examination will be conducted in main subject only."
03. Such advertisement has undergone many amendments but the last corrigendum was published on 12.04.2018 with the last date of submission of on-line application as 30th April, 2018.
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04. The post of Assistant Professor is governed by Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990 (for short "the Rules"). The conditions of eligibility of direct recruits, relevant for the present bunch of cases as per the Rules is as under:-
"8. Conditions of eligibility of direct recruits. - In order to be eligible to compete at the examination/selection a candidate must satisfy the following conditions, namely:-
*** *** ***
(ii) Educational Qualification. - He must possess the educational qualification prescribed for the service as shown in Schedule-III:
Provided that -
(a) In exceptional cases the Commission may, on the recommendation of the Government, treat as qualified a candidate, who though not possessing any of the qualifications prescribed in this clause, has passed examination conducted by other institutions by a standard which, in the opinion of the Commission, justifies the admission of the candidate to the examination/selection;
(b) Candidates who are otherwise qualified but have taken degree from Foreign Universities, being Universities not specifically recognised by Government may also be considered for the examination/selection at the discretion of the Commission.
*** *** ***
SCHEDULE-I
(See Rule 4 and 5)
S.No. Name of Posts Number Classification Scale of Pay
included in the of Posts
service
(1) (2) (3) (4) (5)
*** *** ***
5. (A) Asst. Professor 7426 Class-II 2200-75-2800-
100-4000
*** *** ***
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SCHEDULE-III
(See Rule 8)
Name of the Name of Name of Minimum Upper Educational
Department Service Post age of age of qualifications
limit limit prescribed
(1) (2) (3) (4) (5) (6)
*** *** ***
Department Madhya (ii) Asst. 21 years 30 (a) Educational
of Higher Pradesh Professor years Qualification
Education Educational Prescribed by
(Gazetted) University Grant
Service Commission from time
Scheme to time at the Post
Graduate level there
should be atleast 55%
marks provided for the
Scheduled Casts and
Scheduled Tribes
Candidates the
percentage of marks
shall be 50%.
*** *** ***
The educational qualification in Schedule-III as reproduced above was substituted on 14.08.2003.
05. With this background, the arguments raised by the learned counsel for the petitioners need to be examined. Broadly, the challenge to the selection process is on five counts:
(1) Whether the educational qualification for a candidate to be eligible for appointment to the post of Assistant Professor is to be in terms of Rules or as per the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations, 2009;
(2) Whether the condition in the advertisement that "the relevant subjects including the allied subjects" as notified by the State Government on 28.11.2017 violates the UGC conditions of educational qualification;10
(3) Whether the action of not advertising the posts of Assistant Professor in the subject of Geology, Home Science, Sanskrit and Music left for the General category is legal and justified though such posts were advertised in the Advertisement No.01 of 2016 dated 19.02.2016;
(4) Whether more than 50% posts of the advertised posts such as in the subject of Home Science could have been reserved for the reserved categories and thus, violates the constitutional mandate as interpreted by the Supreme Court judgment, as no post of general category has been advertised;
(5) Whether the petitioners are entitled to relaxation in age over and above three years' relaxation granted by the Supreme Court to the candidates who responded to the Advertisement No.01 in the year 2016.
06. In respect of the first question, the argument of the learned counsel for the petitioners is not tenable for the reason that the counsel for the petitioners failed to take into consideration the substituted condition in Schedule-III contemplating the educational qualification as prescribed by the University Grants Commission from time to time at the Postgraduate level. Since the statutory Rules contemplate the educational qualification for appointment as Assistant Professor to be "as prescribed by the University Grants Commission", therefore, there is no contradiction between the UGC Regulations and/or statutory Rules framed. Thus, the said argument is not valid because as per the statutory Rules; the qualification for recruitment is as per the 2009 Regulations.
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07. In respect of the second question, the argument of the learned counsel for the petitioners is based upon Clause 4.4.1 of the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 (for short "the UGC Regulations, 2010"). The relevant clause reads as under:-
"4.4.0 Assistant Professor 4.4.1 Arts, Humanities, Sciences, Social Sciences, Commerce, Education, Languages, Law, Journalism and Mass Communication i. Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign university."
The argument of the learned counsel for the petitioners is based upon the Clarifications on frequently asked questions on UGC Regulations 2010, bearing No. F-17-6/2013 (PS/Misc.) issued in September, 2015 particularly Query No.4, which reads as under:-
Query Clarification
4. What does relevant subject The relevance of subject or inter-
mean by provision in Para disciplinary nature of subject is
4.4.0? When recruiting a required to be decided by the
candidate for 'Commerce' concerned University/Appointing
subject; does a candidate Authority with the help of subject
having done MBA experts in the concerned/related
(Management subject) field as per its requirement. UGC
become relevant subject for Regulations, 2010 defines the
Commerce? same.
08. The learned counsel for the petitioners refers to Advertisement No.01/Exam/2014 dated 09.07.2014 wherein the allied subjects were 12 considered to be part of the relevant subjects as eligibility condition for appointment to the post of Assistant Professor on the basis of the Notification of the State Government bearing No. F 1-118/2012/38-1 dated 19.05.2014, as amended vide order of even number dated 02.07.2014. In a subsequent Advertisement No.01 of 2016 dated 19.02.2016, the State Government has issued a Notification that the relevant subjects would mean the basic subjects excluding the allied subjects. Vide Notification No.1- 118/2012/38-1 issued on 28.11.2017 it has been clarified that the relevant subjects will include the allied subjects as mentioned in the Notification, which is published in the advertisement as well.
09. The argument of the learned counsel for the petitioners is that the relevant subject has to be determined by the concerned University/ Appointing Authority with the help of subject experts in the concerned related field as per the UGC Regulations, 2010. It is contended that the allied subjects have been included as part of the relevant subject without any opinion of the experts.
10. We do not find any merit in the argument raised. The Notification No. F-17-6/2013 (PS/Misc.) issued in September, 2015 is the only exception excluding the allied subjects else the allied subjects were always included in the relevant subjects. A list of Notifications of the allied subjects shows that it is result of application of mind. It is not a case where the Mathematics has been treated to be an allied subject of Botany. It may be mentioned that there is no post advertised for the allied subjects, therefore, the candidates who are qualified in the allied subjects cannot be disqualified for appearing in the basic subjects. A perusal of the advertisement shows that in the subject of 13 Botany, the subjects such as Microbiology, Biotechnology, Bio Science, Environmental Science, Forestry, Biochemistry, Bio Informatic Science and Genetics are to be treated allied subjects. All such subjects have the origin from the subject of Botany. Such subjects are subjects of higher learning, may be at M.Sc., M.Phil. or for Ph.D. level. Still further, the answer of query is a clarification to understand the regulations but they are not the regulations. The relevance of subject as per the clarification is required to be decided by the Appointing Authority. The Appointing Authority, the State Government vide Notification dated 28.11.2017 has classified the allied subjects with the main subjects in respect of the educational qualifications. By such process, the area of selection is enlarged which serves the public purpose. Still further, the note in the advertisement is that even though the candidate is a degree holder in the allied subject, but the test would be in the main subject. Therefore, all the candidates are required to appear in the same test in the relevant subjects. Therefore, it is level playing field for all the candidates even if the candidate has obtained degree in the allied subject.
11. With the exception of Notification issued in the year 2015, the State Government has grouped the allied subjects as part of the relevant subjects. There is no reason to question the wisdom of the State Government in grouping the allied subjects with the relevant subjects as none of the subjects could be pointed out to be unconcerned or unrelated with the relevant subjects. Still further, the State Government as an employer is in better position to judge the suitability of a candidate for appointment. It is a decision of the employer to recruit candidates, which the employer considers appropriate. Therefore, we do not find that the allied subjects, as notified by 14 the State Government, violate the UGC Regulations of educational qualification.
12. In respect of the third set of cases, the grievance is that the posts of Assistant Professor in certain subjects have not been advertised though they were advertised in Advertisement No.01 of 2016 dated 19.02.2016. We have heard the learned counsel for the parties and find no merit in the said argument as well. Whether a post should be advertised or not is to be considered by the employer. The advertisement issued in the year 2016 was withdrawn; therefore, the posts advertised in the said advertisement are not necessarily to be advertised in the subsequent advertisement. It is the decision of the employer to fill the posts. The Supreme Court in its judgment reported as (1985) 1 SCC 122 (Jatinder Kumar and others vs. State of Punjab and others) has held as under:-
"12........ But it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two earlier decisions of this Court in A.N. D'Silva v. Union of India (AIR 1962 SC 1130) and State of Haryana v. Subash Chander Marwaha & others [(1974) 3 SCC 220]. The contention of Mr. Anthony to the contrary cannot be accepted."
13. In a yet another decision reported as (2016) 6 SCC 532 (Kulwinder Pal Singh and another vs. State of Punjab and others), the Supreme Court held as under:-
"17. The learned counsel for the appellants submitted that the appellants have been pursuing the matter for about eight years and even today there are vacancies in Punjab Judicial Service and thus prayed that direction be issued to the respondents to consider the case of the 15 appellants as against the existing vacancies. This contention does not merit acceptance. Appointment to an additional post or to existing vacancies would deprive candidates who were not eligible for appointment to the post on the date of submission of the applications mentioned in the advertisement but became eligible for appointment thereafter. After referring to Rakhi Ray vs. High Court of Delhi [(2010) 2 SCC 637], State of Orissa vs. Rajkishore Nanda [(2010) 6 SCC 777] and other decisions, High Court rightly held that the candidates much more than the vacancies advertised have already been permitted to join and thus the appellants cannot claim any legal right in respect of the posts of reserved category remaining unfilled. The impugned judgment (Kulwinder Pal Singh vs. State of Punjab, 2012 SCC Online P&H 2975) does not suffer from any infirmity warranting interference in exercise of our jurisdiction under Article 136 of the Constitution of India."
14. In respect of the fourth argument that the State is not sure as to how many vacancies are available in each subject and how many are occupied by the reserved categories, therefore, it is reasonably believed that more than 50% vacancies are being filled up from amongst the candidates from the reserved categories. It is contended that in the affidavit filed on behalf of the State Government in the year 2011 by one Shri C.B. Padwar, Deputy Secretary, Department of Higher Education, Bhopal in W.P. No.9739/2009 (Bhawani Singh vs. State of M.P. and others) (Annexure RJ/2 to W.P. No.9739/2009), the State has disclosed 6166 posts of Assistant Professor out of which 3196 posts are occupied by general category candidates as against 3083 posts. Thus, it was asserted that general category candidates are in excess of their quota. It is pointed out that the Rules provide for 7426 posts of Assistant Professor but such posts include the posts, which were in existence in the State of Madhya Pradesh prior to creation of separate State of Chhattisgarh. It is pointed out that pursuant to amendment made in the year 2015, the total numbers of posts of Assistant Professor were shown as 16 7348 as per the Notification dated 27.08.2015 [Annexure RJ/3 to W.P. No.9739/2009 (supra)]. Therefore, the State is not sure of the number of posts and the posts which are vacant as with each advertisement issued, the numbers of vacant posts are at variance. Learned counsel for the petitioners have placed reliance upon a Division Bench decision of Allahabad High Court reported as (2017) 7 ADJ 738 (Vivekanand Tiwari vs. Union of India) rendered in Civil Misc. Writ Appeal No.43260/2016 decided on 07.04.2017 [Annexure RJ-6 to W.P. No.9739/2009 (supra)] wherein it was held that the object behind the impugned Constitutional amendments is to confer discretion on the State to make reservations for SCs/STs in promotion subject to the circumstances and the constitutional limitations indicated in the decision. The Court went on to remind and request the UGC to examine all aspects and submit its recommendations to the Ministry of Human Resource Development for its consideration and appropriate decision. The matter travelled upto the Supreme Court and vide order dated 21.07.2017 passed in SLP (C) No.16515/2017 (Dr. Lal Chand Prasad and another vs. Union of India and others), the Supreme Court dismissed the petition. After dismissal of the SLP against the said order, the UGC has issued a circular on 5th March, 2018 that the posts of Assistant Professors have to be subject- wise. Thus, it is argued that the advertisement issued on 12.12.2017 is not in consonance with the amended Regulations issued on 05.03.2018.
15. We do not find any merit in the said argument raised. It is not in dispute that not more than 50% of the posts can be filled by the reserved category candidates but such question of limit of 50% will arise only at the time of appointment and not at the time of advertisement as the 17 advertisement is only to find a suitable candidate for appointment but to give effect to the Regulations as amended by the UGC. Still further, if a post has not been advertised though vacant, it will not confer any right in any candidate that such posts should be advertised.
16. But, to provide a transparent and fair recruitment process, the State Government is directed to put on its website the number of posts of each subject and the posts which are to be filled in each category within one month so that all the candidates are aware of the vacant posts, against which they are competing for appointment. But, non-advertisement of any vacant post does not confer any right with any aspiring candidate to seek inclusion of such posts in the recruitment process. However, at this stage the number of posts advertised cannot be interfered with only on the ground that the posts of reserved categories have been advertised in excess of 50% limit. We do not find any merit in the said argument.
17. Another argument of the learned counsel for the petitioners is that the Supreme Court has ordered that the candidates, who applied in response to advertisement in the year 2016, will not be declared ineligible on account of age. We do not find that the candidates are entitled to any further relaxation inasmuch as, as per the corrigendum issued on 12.04.2018 maximum age for recruitment is 44 years as on 01.01.2018 whereas the candidates of the reserved category will be entitled to relaxation over and above the said age. We find that whether a candidate is entitled to relaxation in age is a policy decision. We find that no further relaxation in age is contemplated or warranted since maximum age is reasonably high. 18
18. In view of the above, we do not find any merit in the present bunch of writ petitions and accordingly, the same are dismissed.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
S/
Digitally signed by SACHIN
CHAUDHARY
Date: 2018.05.01 17:35:24 +05'30'