1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER:
1. S.B. Civil Writ Petition No.7824/2012 (Mahendra Kumar Vs. State of Rajasthan & Others) 2. S.B. Civil Writ Petition No.11899/2010 (Rajendra Bishnoi & Others Vs. State of Rajasthan & Others) 3. S.B. Civil Writ Petition No.10650/2012 (Narendra Kirodiwal Vs. State of Rajasthan & Another) 4. S.B. Civil Writ Petition No.1828/2013 (Izhar Alam & Others Vs. State of Rajasthan & Others) DATE OF ORDER : August 26, 2013 PRESENT HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Reportable Mr. Mahaveer Bishnoi/Mr. Kailash Jangid/Mr. Vinay Pandey for the petitioners. Mr. Tarun Joshi for the respondent. Mr. I.S. Pareek, Addl. Govt. Counsel. BY THE COURT : In all the above writ petitions the petitioners are claiming age relaxation of three years in the upper age limit for recruitment to the posts of Sub Inspector of 2 Police and seeking direction to the respondents to grant age relaxation of three years in upper age limit for recruitment on the posts of Sub Inspector of Police under notification dated 05.11.2010. It is also prayed that the respondents may be directed to call the petitioners in interview for recruitment on the posts of Sub Inspector of Police while granting the same benefit of age relaxation in the Rajasthan Police Subordinate Service Rules 1989 as granted under notification dated 23.09.2008 in as many as 72 various service rules. For the sake of convenience, the facts narrated in S.B. Civil Writ Petition No.7824/2012 are hereby taken into consideration. Brief facts of the case are that an advertisement dated 25.11.2010 was issued by the Rajasthan Public Service Commission, Ajmer whereby applications were invited for recruitment on the posts of Sub Inspector of Police. In column No.6 of the notification, there is provision of age limit according to which a candidate 3 should be 20 years of age and not more than 25 years of age as on 01.01.2011. Further, there is provision for relaxation in age for candidates belonging to SC, ST and OBC categories etc. as per the rules. The petitioner is otherwise eligible for participating in the competitive examination for the post of Sub Inspector, therefore, he applied in pursuance of the aforesaid advertisement and respondent No.3 RPSC issued admission card for appearing in the written examination in which the petitioner was declared successful. Thereafter, he appeared in the physical efficiency test also. After written examination and physical efficiency test, the respondent Commission declared result of the competitive examination for recruitment on the posts of Sub Inspector of Police, in which, the petitioner was declared qualified for appearing in the interview. After declaring the petitioner qualified for interview the petitioner was required to submit all the documents on or before 21.05.2012. Therefore, he 4 deposited all the requisite documents before the respondent Commission. In the admission card issued for admission, a note was given that no age relaxation has been given by the State Government/Hon'ble High Court for Sub Inspector of Police Combined Competitive Examination, 2010. Only those candidates who are within age limit and have obtained education qualification as prescribed in the advertisement should come for interview otherwise their candidature will be rejected at the time of interview. In the writ petition, it is pleaded that the State Government has issued a notification on 23.09.2008 whereby a relaxation has been granted in age limit for three years in various service rules but the Rajasthan Police Subordinate Service Rules 1989 has not been included in the said notification although for the post of Sub Inspector of Police last selections were made in the year 2007 and, thereafter, no vacancy was advertised for three years. Therefore, obviously the benefit of age relaxation is 5 also required to be made available to the candidates eligible for appointment on the posts of Sub Inspector of Police in accordance with the Rules of 1989. But, inspite of the fact that after 2007 no vacancy was advertised and, in the year 2010, vacancies have been advertised, therefore, relaxation in upper age limit should have been granted as provided for in other service rules under the notification dated 23.09.2008 whereby three years age relaxation is granted for the posts of 72 various service rules framed under the proviso to Article 309 of the Constitution of India. As per argument of the petitioners, there is no justification for denial of age relaxation up to three years for the posts of Sub Inspector of Police which is violative of Articles 14, 16 and 21 of the Constitution of India. Learned counsel for the petitioner submits that the State Government cannot adopt two different methods for granting age relaxation, therefore, the respondent State may be directed to grant age 6 relaxation for which there is specific provision under Rule 11(3) of the Rules of 1989. Learned counsel for the petitioner invited my attention towards judgments rendered by this Court in the cases of Bhagwan Singh Rathore & Another Vs. State of Rajasthan & Others, reported in 2011 (2) DNJ (Raj.) 746, Prem Ratan Modi Vs. State of Rajasthan & Others, reported in 2013 (1) WLC (Raj.) 39, and, judgment of Hon'ble Supreme Court in the case of Malik Mazhar Sultan & Another Vs. U.P. Public Service Commission & Others, reported in (2006) 9 SCC 507.While inviting attention towards the above judgments it is submitted that the respondents may be directed to grant age relaxation up to three years as provided for the posts of various other service rules vide notification dated 23.09.2008 and consider the case of the petitioner for appointment on the post of Sub Inspector of Police. Per contra, learned counsel appearing for the State and learned counsel for the respondent Service 7 Commission vehemently opposed the prayer and submit that prayer of the petitioner was considered by the Government for grant of age relaxation and vide communication dated 27.11.2012 the State Government refused to grant age relaxation on various grounds including the ground that written examination and physical efficiency test have already been conducted and, at this stage, no relaxation can be granted looking to the working of a Sub Inspector of Police. Therefore, the petitioners in these writ petitions cannot claim relaxation as a matter of right. Both the counsel appearing for the respondents submit that although there is provision for grant of age relaxation under the Rajasthan Police Subordinate Service Rules 1989 and Government issued notification on 23.09.2008 whereby age relaxation up to three years has been granted for the posts of other service rules but, in the case of Sub Inspector of Police physical efficiency of a candidate is required to be seen looking to the nature of work performed by the 8 Sub Inspector of Police, therefore, purposely no age relaxation is provided for recruitment on the posts Sub Inspect of Police. On the basis of above argument, it is prayed that these writ petitions may be dismissed. Learned counsel for the respondents invited my attention towards the judgment of this Court at Jaipur Bench, rendered in the case of Sarita Soni Vs. Rajasthan Public Service Commission, Ajmer & Another, S.B. Civil Writ Petition No.6025/2011, decided on 30.11.2012; and, judgment of this Court in the case of Ashok Kumar Dayama & Another Vs. State & Another, reported in 2008 WLC (Raj.) UC 49.and submitted that in view of the above judgments the petitioners are not entitled for any age relaxation. After hearing learned counsel for the parties, I have perused the entire record of the case. The respondents filed reply in S.B. Civil Writ Petition No.11899/2010. In this case, following facts are not in dispute : (A) No vacancies of the posts of Sub Inspector of Police were advertised after 2007 and after three years the 9 advertisement in question was issued by the Rajasthan Public Service Commission on 25.11.2010. (B) There is no dispute with regard to issuance of notification dated 23.09.2008 whereby age relaxation has been granted to the posts of 72 other service rules in which following amendment was made : , ! " , & !! ( ( , ( ( ( (( 3 (( (& (/" ! &/& 1 (C) The petitioners were allowed to appear in the written examination and physical efficiency test but their candidature was rejected on the ground of crossing the maximum age limit. (D) Admittedly, during pendency of the writ petitions a decision was taken and communicated to the Rajasthan Public Service Commission on 27.11.2012 whereby relaxation in the maximum age limit has been refused vide Annex.-R/2/3 filed with reply in S.B. Civil Writ Petition No.11899/2010 along with the 10 reply. After considering the above admitted facts it emerges from the facts that the Government granted age relaxation up to three years in as many as 72 service rules vide notification dated 23.09.2008 and following reasons were given for denial of age relaxation for the posts of Sub Inspector of Police in the communication dated 27.11.2012 (Annex.-R/2/3) filed in S.B. Civil Writ Petition No.11899/2010, which reads as under :
7. (! ( < 1 ( ( ( ( <&( , ( ( <&" ! ( ( ( ( ( ( ( <&( ( ((( " (( H( , : & ( ( <( ( (( & ! 1 K & ( & ( & ( (( ( & O & ( ( Q 7 ( " ( Q ( ( " Q (( ( ( & ( Q 7 ( ( ( < H( !< ( 11 (( <&S O In the case of Bhagwan Singh Rathore (supra), this Court has had occasion to consider the question of age relaxation and following adjudication was made by this Court in para 22, 23 and 24 of the judgment reported in 2011 (2) DNJ (Raj.) 746, which read as under :
22. It is one of the important facts that advertisement has not been issued within reasonable time of the occurrence of the vacancies of the posts of Patwari, therefore, in public interest and looking to the fundamental right guaranteed under Articles 14 and 16 of the Constitution of India, it is incumbent upon the State Government to provide age relaxation to the candidates who are aspirants to be appointed as Patwari in accordance with Rules of 1957. Admittedly, since the year 2008 no process of selection or conducting competitive examination for admission in the Patwar Training School was commenced till issuance of the present advertisement, therefore, in my opinion, the petitioners are also entitled for benefit of age relaxation in upper age limit which is extended by the State Government vide notification dated 23.9.2008 because the petitioners were within age limit in the year 2008 and now petitioners have been deprived from their right of consideration due to the inaction on the part of the Board of Revenue 12 in not commencing the process for conducting competitive examination for last three years.
23. In public employment it is the duty of the welfare State to provide equal opportunities to the citizens. Not only in this case but in other services also, the State Government has not undertaken process of selection for last three years and due to the inaction on the part of the State Government large number of qualified candidates cross the maximum age limit and, now, they are not having the opportunity to avail their chance to compete for appointment on the post of Patwari and other posts. In my opinion, it is duty of the welfare State to act fairly and conduct examination as per rules within time and, if for any difficulty, it is not possible for the State to conduct the examination within time when the vacancies arose, then, obviously it is the obligatory duty of the State Government to provide age relaxation to all those candidates who become ineligible in the meantime by crossing the maximum age limit prescribed in the rules. Here, in this case, no advertisement was issued for competitive examination for admission in the Patwar Training School and due to that large number of candidates became ineligible having crossed the upper age limit prescribed in the rules but no age relaxation has 13 been given for admission in the Patwar Training School and for appointment on the post of Patwari whereas vide notification dated 23.09.2008 an amendment was made in as many as 72 service rules whereby proviso was added in various service rules for granting age relaxation in respect of those candidates who become over-aged due to not filling up the vacancies in particular year when the candidate was possessing eligibility with reference to age limit.
24. In this view of the matter, all the above writ petitions are hereby allowed. Respondents are directed to grant age relaxation in the maximum age limit for admission in the Patwar Training School and for appointment on the post of Patwari at par with amendment in other various service rules vide notification dated 23.09.2008 issued by the State Government irrespective of the fact that Rules of 1957 has not been enumerated in the said notification. Accordingly, it is directed that all those candidates who were within age limit as on 01.01.2009, 01.01.2010 and 01.01.2011 they shall be treated within upper age limit for appearing in the competitive examination in pursuance of advertisement dated 07.03.2011 14 issued by the Board of Revenue and they may be permitted to appear in the competitive examination which is going to be conducted for admission in the Patwar Training School and after declaring successful in the competitive examination for admission they may be granted admission as per their merit and after completion of training, they shall be treated to be within age limit for the purpose of providing appointment on the post of Patwari. Similarly, the Division Bench of this Court in Prem Ratan Modi's case (supra) held that age relaxation up to three years is permissible and not beyond that. Para 19, 20 and 21 of the said judgment read as under :
19. 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.
20. 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 15 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.
21. 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. Similarly, in Rule 11(3) of the Rules of 1989 following 16 provision is incorporated for grant of age relaxation :
11. 3) however the upper age-limit mentioned above may be relaxed by three years in exceptional cases by appointing authority, after previous approval of Government. After perusing the above judgments and Rule 11(3) of the Rules of 1989 in the opinion of this Court there is no reasonable justification in the decision of the Government for refusing age relaxation vide communication dated 27.11.2012 because efficiency of work is necessary for every category of service under the State and no specific categorization can be made with regard to efficiency of work. Once the State Government has decided to grant age relaxation in 72 other service rules vide notification dated 23.09.2008 and granted age relaxation to other category of posts in various service rules, then, obviously such benefit is to be made available for the posts enumerated under the Rajasthan Police Subordinate Service Rules 1989 because there is specific provision under sub-rule (3) of Rule 11 of the Rules of 1989 that upper age-limit may be relaxed by three years in exceptional cases by the appointing authority, after 17 previous approval of Government. In the rules enacted under Article 309 of the Constitution of India it is specifically provided that relaxation can be granted up to three years, then, it cannot be said that while granting benefit in the other service rules the same can be denied in the Rules of 1989. The State Government with open eyes granted relaxation up to three years in other service rules, therefore, the reasons given in the communication dated 27.11.2012 are violative of Articles 14 and 21 of the Constitution of India and not sustainable in law. The judgments cited by learned counsel for the respondents are based upon different facts because, here, in this case, the State Government took decision not to grant age relaxation during pendency of the writ petition and communicated to the Rajasthan Public Service Commission and, upon perusal of the said communication, this Court is of the opinion that denial of age relaxation is not based upon sound reason. More so, on the one hand, under the Rules of 1989 power can be exercised for grant of of age 18 relaxation up to three years and, on the other hand, the respondent Department is taking ground that this age relaxation cannot be given for the reason that physical efficiency is to be seen for the post of Sub Inspector of Police. It is also very material to observe here that under the Rules of 1989 age relaxation has been granted to various categories enumerated in Rule 11 of the Rules; meaning thereby, there is provision for age relaxation in the Rules which is to be exercised for enlarging the scope of selection and to provide opportunity to the candidates who were denied consideration due to inaction of the State in not holding selection yearwise and not for snatching the right of consideration. In view of the above, the action of the State Government for refusing the age relaxation to the candidates eligible for appointment on the posts of Sub Inspector is violative of Articles 14, 16 and 21 of the Constitution of India. As a result of the foregoing discussion, all these 19 writ petitions are allowed. The communication dated 27.11.2012 (Annex.-R/2/3) filed along with reply in S.B. Civil Writ Petition No.11899/2010 is hereby quashed and respondents are directed to grant age relaxation in the upper age limit up to three years to the candidates who were eligible to participate in the selection process in between the years 2007 to 2010 and consider their case for appointment on the posts of Sub Inspector of Police as per their performance in the interview. It is also directed that above benefit shall be granted only to those candidates who approached the Court within time and this Court passed interim order to participate in the interview provisionally because process of selection is over, therefore, there is no question to re-open the process of selection. No order as to costs. (Gopal Krishan Vyas) J.
Ojha, a.