ORDER
A.K. Patnaik, C.J.
1. The petitioner is working as Samvida Shala Shikshak Class II in the Government School, Sada (Goram), Block Mehgaon, District Bhind. He applied pursuant to an advertisement issued by the Madhya Pradesh Public Service Commission on 26-2-2007 inviting applications for 240 posts of Civil Judge (Entry Level) in the Lower Judicial Services. He was allowed by the M.P. Public Service Commission to take the preliminary examination on 15-5-2007 and after being successful, he was allowed to take final examination conducted by the M.P. Public Service Commission on 5-8-2007. Since he was successful in the final examination, he expected that he will be called for interview by the M.P. Public Service Commission but he was not called for interview. He came to learn subsequently that he was not called for interview because he had completed the upper age limit of 35 years as on 1-1-2008 and was, thus, not eligible for recruitment to the post of Civil Judge (Entry Level). Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution of India.
2. Mr. Rajendra Tiwari, learned Senior Counsel appearing for the petitioner, submitted that the petitioner was a Government servant and under the Second Proviso to Rule 7 of the Madhya Pradesh Lower Judicial Service (Recruitment and Conditions of Service) Rules, 1994, the upper age limit of a candidate who is a Government servant was relaxable up to 38 years for direct recruitment to the post of Civil Judge (Entry Level).
3. Rule 7 of the Madhya Pradesh Lower Judicial Service (Recruitment and Conditions of Service) Rules, 1994, under which the petitioner claimed exemption, is quoted herein below:
Rule 7. Eligibility.- No person shall be eligible for appointment by direct recruitment to posts in category (i) of Rule 3(1) unless:
(a) he is a citizen of India;
(b) he has attained the age of 21 years and not completed the age of 35 years on the 1st day of January of the next following year in which application for appointment are invited : Provided that the upper age limit shall be relaxable upto a maximum of three years, if a candidate belongs to Scheduled Castes, Scheduled Tribes or Other Backward Glasses : Provided further that the upper age limit of a candidate who is a Government servant (whether permanent or temporary) shall be relaxable upto 38 years:
Provided further that the upper age limit of a candidate shall be relaxable by appropriate number of years, if on recruitment takes place for one year or more, to the Madhya Pradesh Lower Judicial Service.(c) he possesses a degree in law of any recognized University;
(d) he has good character and is of sound health and free from any bodily defect which renders him unfit for such appointment.
It will be clear from the Second Proviso to Rule 7 of the Madhya Pradesh Lower Judicial Service (Recruitment & Conditions of Service) Rules, 1994, that the upper age limit of a candidate who is a Government servant (whether permanent or temporary) is only relaxable upto 38 years.
4. The petitioner was appointed under the Madhya Pradesh Panchayat Samvida Shala Shikshak (Recruitment & Conditions of Contract) Rules, 2005 (for short 'the 2005 Rules') as Samvida Shala Shikshak by the Janpad Panchayat, Mehgaon, District Bhind. On perusal of the 2005 Rules, we find that a candidate on being selected for appointment as Samvida Shala Shikshak is employed on a contract for a maximum period of 3 years for a particular school under Rule 12, under the Zila Panchayat and Janpad Panchayat as the case may be. Hence, the employing authority of the petitioner is not the State Government but the Janpad Panchayat and the tenure of employee is governed by the contract of appointment. In Rule 10 of the 2005 Rules, it is stipulated that a Samvida Shala Shikshak shall be under the discretionary and administrative control of Zila Panchayat and Janpad Panchayat, as the case may be and the Disciplinary Authority of the petitioner is also the Janpad Panchayat. In Rule 12(a) of the 2005 Rules, it is provided that a person employed under the Rules shall work under the administrative control of the Janpad Panchayat through its Chief Executive Officer and other officers as prescribed. Thus, the Controlling Authority of the petitioner is the Chief Executive Officer of the Janpad Panchayat. In Rule 12(h) of the 2005 Rules, it is also stipulated that the person employed under this rule shall be governed by the Madhya Pradesh Panchayat Services (Conduct) Rules, 1998, unlike a Government servant to whom the Madhya Pradesh Civil Services (Conduct) Rules, 1965 are applicable. Hence, the petitioner cannot be held to be a Government servant.
5. A similar question arose for decision in Union Public Service Commission v. Girish Jayantilal Vaghela and Ors. AIR 2006 SC 1165. Girish Jayantilal Vaghela was appointed as Drugs Inspector on short term contract basis on a fixed salary for a period of six months from the date of joining or till the date he was selected by the Union Public Service Commission and appointed on a regular basis, whichever was earlier. His appointment was renewed after every six months with short breaks and it continued for over five years. The Union Public Service Commission issued an advertisement for making regular selection on the post of Drugs Inspector and the upper age limit of the candidate was fixed 30 years which was relaxable for Government servants upto five years in accordance with the instructions and orders issued by the Central Government. The Supreme Court held that since Girish Jayantilal Vaghela was working on short term contract basis, he was not a Government servant and was not eligible for any relaxation in the upper age limit. As the petitioner was employed on a contract basis under the Zila Panchayat and he was under the administrative and disciplinary control of the Zila Panchayat, he was not a Government servant.
6. Since the petitioner is not a Government servant, he cannot claim the relaxation of the upper age limit of 38 years. Admittedly, the petitioner had crossed the age of 35 years on the 1st day of January, 2008. Hence he was not eligible for appointment by direct recruitment to the post of Civil Judge (Entry Level). The writ petition has no merit and is accordingly dismissed.