Mrs. Nirmal Singh Vs. State of Rajasthan and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/767987
SubjectService
CourtRajasthan High Court
Decided OnFeb-15-2002
Case NumberS.B. Civil Writ Petition No. 4312 of 1991
Judge K.S. Rathore, J.
Reported inRLW2003(1)Raj270; 2002(2)WLC735
ActsRajasthan Educational Subordinate Service Rules, 1971 - Rules 2 and 10
AppellantMrs. Nirmal Singh
RespondentState of Rajasthan and ors.
Appellant Advocate Satish Bijarniya, Adv. for; N.K. Maloo, Adv.
Respondent Advocate S.N. Kumawat, Adv.
DispositionPetition dismissed
Cases ReferredShiv Lal v. State of Raj. and Anr. (supra
Excerpt:
- - the petitioner was again asked to furnish the certificate having worked as a permanent rajasthan state government employee vide letter dated 20.3.1991. the petitioner again submitted a certificate issued by the kala mandir, bharatpur as earlier submitted at the time of provisional appointment on 24.1.1991. after examining and scrutining the certificate/document submitted by the petitioner, the rpsc informed that since the petitioner failed to submit the requisite certificate to show that she is permanent employee of the rajasthan government and her candidature on account of being over-age is rejected and her case was not found fit for relaxation as is given in case of the government employee. 4. learned counsel for the petitioner further submits that amendment in service rules 1971 in regard to relaxation of age was necessitated on account of the fact that no direct recruitment for the posts covered under the aforesaid service rules 1971 was made for last more than 4 years and in the meanwhile a large number of candidates like the petitioner become overage so fixing a cut of date as in the amendment on 25.1.1990 is not only discriminatory, arbitrary but illegal and other similarly situated persons and the petitioner may be held within the age limit for the purposes of the appointment on the post of senior teacher (hindi) by extending the benefit of age relaxation beyond the period of 25.1.1990. 5. in support of the argument learned counsel for the petitioner placed reliance on the judgment in the case of union public service commission v. the action of the commission in 'not allowing age relaxation to the faculty working in the post- graduate institute of medical education and research, chandigarh, will not only be discriminatory but will also deny the chance to get the best possible talent selected for top positions in a new medical institution. kumawat appearing on behalf of the rpsc submits that in the advertisement issued by the rpsc it was clearly mentioned that a candidate has to be within the age limit of 18-31 years as on 1.1.1990. the various age relaxation were also mentioned in the suchna patrika. (3), wherein this high court has held that the age relaxation has been given to the employees working in the panchayat samiti/zila parrishad and the same benefit is not extended to the persons like the petitioner who are working in the government-aided schools, therefore, the same is in violation of articles 14 and 16 of the constitution. 11. heard learned counsel for the parties, perused the writ petition as well as reply and perused the judgment cited before me and also perused the provision of the rajasthan educational subordinate service rules, 1971. to resolve the controversy it is necessary to examine definition of rule 2(h) which speaks as under: the provision of rule 10(vi) of rule 1970 are fully applicable to the instant case whereas the petitioner failed to prove as to how she being a member of the service in view of the provision of definition 2 (h) and also fail to submit that she has been given appointment in a substantive capacity.rathore, j. 1. the petitioner by way of this writ petition challenged the order dated 7.5.1991 and the amendment in rule 10 of the rajasthan educational subordinate service rule 1971 (hereinafter to be referred as the service rules 1971). 2. the petitioner initially joined the kala mandir, girls middle school, bharatpur on 1.7.1983 on the post of teacher. at the relevant time the school was recognized and aided by the government of rajasthan. the petitioner's appointment was also apprised by senior dy. education officer (girls) bharatpur vide his order dated 27.10.1983. the petitioner continued to work in the kala mandir, bharatpur unto 19.12.1987. in response to the advertisement issued by the navodaya vidyalaya samiti, new delhi for appointment on the post of teacher grade 111 petitioner also applied for teacher grade iii (hindi). the petitioner was selected through proper channel and since the line of the petitioner on the post of teacher remained with the kala mandir, bharatpur and after selection on the post of teacher grade 111 petitioner was permitted to proceed on deputation by the management of kala mandir, bharatpur with the approval of the inspector of girls schools, bharatpur and petitioner joined his service on 22.12.1987 at jawahar navodaya vidyalaya patan, district sikar on the post of teacher grade iii (hindi). initially the period of deputation was fixed for 2 years and thereafter, period of deputation was extended by another year. the petitioner has been absorbed on the post of teacher grade hi (hindi) under navodaya vidyalaya samiti, district sikar with the approval of dy. director, navodaya vidyalaya samiti (regional office) jaipur. 3. in the mean time the rajasthan public service commission issued an advertisement dated 23.8.1989 inviting the application for appointment on the post of senior teacher (hindi). on 20.5.1990 a written/screening test was held by the rpsc and vide letter dated 27.12.1990 the petitioner asked to appear for interview on 19.1.1991. at the time of interview the rpsc asked the petitioner to furnish the certificate for the proof of her work as permanent rajasthan government employee within the period of 15 days. pursuant to that the petitioner submitted a certificate issued by the kala mandir, bharatpur on 24.1.1991. by letter dated 8.3.1991 the petitioner was informed by the rajasthan public service commission that he has been selected for appointment on the post of senior teacher (hindi) on provisional basis and her name find place at serial no. 44 in the select list. the petitioner was again asked to furnish the certificate having worked as a permanent rajasthan state government employee vide letter dated 20.3.1991. the petitioner again submitted a certificate issued by the kala mandir, bharatpur as earlier submitted at the time of provisional appointment on 24.1.1991. after examining and scrutining the certificate/document submitted by the petitioner, the rpsc informed that since the petitioner failed to submit the requisite certificate to show that she is permanent employee of the rajasthan government and her candidature on account of being over-age is rejected and her case was not found fit for relaxation as is given in case of the government employee. the petitioner submitted his representation against the rejection on 1.7.1991; learned counsel for the petitioner submits that since the petitioner is working in the kala mandir, bharatpur which is duly recognised by the state government and fully controlled and managed by the nominees of the state government. it has also been submitted that the navodaya vidyalaya samiti has also been constituted by the ministry of human resource development on the pattern of kendriya vidyalaya and also fully controlled and managed by the nominees of the central government and thus as agency of the central government. therefore, the petitioner rightly claimed the benefit of age relaxation as a permanent employee of the state of rajasthan in her application as the petitioner has been regularly appointed in kala mandir after due selection by the selection committee and approved by senior deputy education officer (girls) bharatpur. thus both institutions kala mandir, bharatpur and navodaya vidyalaya samiti are the agencies and instrumentalities of the state. it is further submitted that navodaya vidyalaya samiti has been constituted by the ministry of human resource development on the pattern of ken- driya vidyalaya bangthan which is fully controlled and managed by the nominee of the government. since the petitioner was appointed for discharging public duty or imparting knowledge by working in the agency of the government, the rpsc acted illegaly in denying the benefit of the age relaxation to the petitioner as permanent employee of the state. 4. learned counsel for the petitioner further submits that amendment in service rules 1971 in regard to relaxation of age was necessitated on account of the fact that no direct recruitment for the posts covered under the aforesaid service rules 1971 was made for last more than 4 years and in the meanwhile a large number of candidates like the petitioner become overage so fixing a cut of date as in the amendment on 25.1.1990 is not only discriminatory, arbitrary but illegal and other similarly situated persons and the petitioner may be held within the age limit for the purposes of the appointment on the post of senior teacher (hindi) by extending the benefit of age relaxation beyond the period of 25.1.1990. 5. in support of the argument learned counsel for the petitioner placed reliance on the judgment in the case of union public service commission v. dr. jai dev wig and ors. (1), and much emphasis has been given by the learned counsel for the petitioner on para 3, 4 and 5. in para 4 of the judgment the division bench of the punjab and haryana high court has held that the post- graduate institute of medical education and research is fully funded by the government of india. it follows the government rules. the union minister of health and family welfare is the president of the institute. officers of the union ministries of health, finance and education are on the governing body of the institute. the action of the commission in 'not allowing age relaxation to the faculty working in the post- graduate institute of medical education and research, chandigarh, will not only be discriminatory but will also deny the chance to get the best possible talent selected for top positions in a new medical institution. 'it was further pointed out that the respondent had requested the commission to call dr. wig' for interview for the post of professor (general surgery) after giving him age relaxation.' on these premises, it was placed that the claim made by dr. wig should be accepted. 6. he further placed reliance on the judgment of the full bench in the case of dr. bajrang lal sharma v. state of raj. and anr. (2), wherein the full bench of this court has held whether a private educational institution, run by a society registered under societies registration act, which receives grant-in-aid from the govt. and which is governed by provisions of grant-in-aid rules can be considered as an agency or instrumentality of the state and, therefore, amenable to writ jurisdiction. in para 13 of this judgment the full bench has held that the society, which is a private educational institution, is thus not only an aided institution being controlled by the state government but is also performing the public duty of imparting education and, as such, is an instrumentality and agency of the state and is amenable to writ jurisdiction. 7. in reply to the argument advanced by the learned counsel for the petitioner mr. s.n. kumawat appearing on behalf of the rpsc submits that in the advertisement issued by the rpsc it was clearly mentioned that a candidate has to be within the age limit of 18-31 years as on 1.1.1990. the various age relaxation were also mentioned in the suchna patrika. since the advertisement was issued on 23.8.1989 and the last date of receipt of application was 20.10.1989 for 334 posts of senior teacher in hindi out of which 284 for male candidate and 50 for female candidates. the petitioner was allowed to appear in the screening test and it is also undisputed that her name find place in select list. after screening of the application form of the petitioner it was found that the petitioner's date of birth being 18.11.1952 she was 37 years 1 month and 14 days on 1.1.1990 under the rules as they existed at the time the petitioner could have been given age relaxation of 5 years as being female candidate. the petitioner has crossed the age of 36 years as on 1.1.1990. the only relaxation which remains as being a government servant the petitioner could have been given age relaxation up to the 40years. the petitioner vide letter dated 20.3.1991 was asked for furnishing certificate being a government servant but she was unable to furnish such certificate and only submits a certificate issued by the kala mandir, bharatpur. since the petitioner did not submit any certificate to show that she is being a permanent government employee is entitled for the further age relaxation the commission vide letter dated 7.5.1991 informed the petitioner that she may not be given age relaxation as provided for the government employees. 8. learned counsel for the rpsc mr. s.n. kumawat further denied that the kala mandir, bharatpur is an instrumentality and controlled by the government and the employee of the kala mandir, bharatpur is termed as a government employee and the provisional selection was absolutely provisional subject to permanent government employee to get the age relaxation for appellant. and the petitioner has got no legal right to ask for appointment even though she is unable to furnish the requisite certificate for getting relaxation certificate as provided under the law. 9. in support of the argument mr. s.n. kumawat submits that the same controversy has been decided in the case of shiv lal v. state of raj. and anr. (3), wherein this high court has held that the age relaxation has been given to the employees working in the panchayat samiti/zila parrishad and the same benefit is not extended to the persons like the petitioner who are working in the government-aided schools, therefore, the same is in violation of articles 14 and 16 of the constitution. learned counsel for the petitioner was unable to point out that how this differentiation is arbitrary. if there is a reasonable differentiation then certainly this court would not interfere in its powers under article 226 of the constitution. 10. he further placed reliance on an unreported decision of this court in the case of madan lal v. rajasthan public service commission and anr. (4), wherein this court has also examined rule 10 and after examining rule 10 and other provisions this court has opined that none of the above clauses apply in case of the petitioner and he cannot get age relaxation. admittedly, petitioner is not holding the post in the service. the expression 'service' has been defined in rule-2(h) of the, rules, which says 'service1 means the rajasthan educational subordinate service. hence, the petitioner cannot be said that he was holding post in service to get the benefit of clause (v). clause (vi) has also no application as the petitioner is not serving in connection with the affairs of the state. the petitioner is a teacher in a private school, though the school is said to be recognised and aided one, but by this very fact, he does not become an employee of the state government to get benefit of the rule. 11. heard learned counsel for the parties, perused the writ petition as well as reply and perused the judgment cited before me and also perused the provision of the rajasthan educational subordinate service rules, 1971. to resolve the controversy it is necessary to examine definition of rule 2(h) which speaks as under: 'service' means the rajasthan educational subordinate service; and (i) 'substantive appointment' means an appointment made under the provisions of these rules to a substantive vacancy after the selection by any of the methods of recruitment prescribed under these rules and includes an appointment on probation or as a probationer followed by confirmation on the completion of the probationary period; 12. rule 10 of the rajasthan educational subordinate service rules, 1971 deals with age. rule 10(ii) is for the upper age limit mentioned above shall be relaxable by 5 years in the case of women candidates and candidates belonging to the scheduled castes or the scheduled tribes; 13. there is no such provision to give the relaxation as being a government servant in the rules of 1971. rajasthan educational service rules 1970 sub-rule 6 hasgiven relaxation to the government employee. notwithstanding anything contained contrary in these rules in the case of persons serving in connection with the affairs of the state in substantive capacity, the upper age limit shall be 40 years for direct recruitment to posts filled in by competitive examinations or in case of posts filled in through the commission. this relaxation shall not apply to urged temporary appointment; 14. the present petitioner was given relaxation in age of 5 years being a women candidate and even if five years relaxation is given being a women candidate she crossed the age limit as she should not be more than 36 years of age but she was found 37 years 1 month 14 days and on the further relaxation which is asked by the petitioner remains as being a employee of the state government employee in substantive capacity. for that purpose the petitioner furnished the certificate of kala mandir, bharatpur. 15. in view of definition 2(h) of rules 1971 'service' means the rajasthan educational subordinate service and according to definition 2(i) 'substantive appointment' means an appointment made under the provisions of these rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these rules/and includes an appointment or probation or as a probationer followed by confirmation on the completion of the probationary period. the petitioner wants to take advantage on the ground that since the kala mandir, bharatpur is recognised one and aided by the state government and the appointments which are made by the management of kala mandir is ultimately approved by the officer of educational department, therefore, the kala mandir is fully governed and controlled by the state government and is instrumentality of the state. the provision of rule 10(vi) of rule 1970 are fully applicable to the instant case whereas the petitioner failed to prove as to how she being a member of the service in view of the provision of definition 2 (h) and also fail to submit that she has been given appointment in a substantive capacity. the judgment of punjab and haryana high court was relied by the petitioner in the case of union public service commission v. dr. jai dev wig and ors. (supra), is not applicable to the facts and circumstances of this case as division bench of punjab and haryana high court has arrived at the conclusion since the post graduate institute of medical education and research is not only aided but fully funded by the government of india and governed by the government rules and the government officials are on the governing body of the institute and union minister of health and family welfare is the president of institute and the union minister of health, finance and education are on the governing body. 16. therefore, in the facts and circumstances, the division bench of punjab and haryana high court rightly arrived at the conclusion that being a government instrumentalities the relaxation is not to have been given to the respondents. where in the instant case neither the institute of kala mandir is fully funded by the state government nor managed by the state government. it is only recognised by the state government and to the extent to provide did to all private institutions does not mean that such institutions is fully controlled and managed and is instrumentality of the government and employees of such private institutions are member of the service as defined under rule 2(h) and (i). the petitioner's appointment neither a term as a service under the service rules, 1971 nor a substantive appointment made under these rules against the substantive vacancies after due selection. in the judgment referred by the learned counsel for the respondent rpsc wherein the ratio decided by the high court in the case of shiv lal v. state of raj. and anr. (supra), is applicable to the instant case. 17. during the course of arguments it is given out by ms. sumilra goyal, government advocate that all the appointments have been made and petitioner is still continuing in navodaya vidyalaya sangathan. 18. i find no force in the writ petition and the same is hereby dismissed with no order as to costs.
Judgment:

Rathore, J.

1. The petitioner by way of this writ petition challenged the order dated 7.5.1991 and the amendment in Rule 10 of the Rajasthan Educational Subordinate Service Rule 1971 (hereinafter to be referred as the Service Rules 1971).

2. The petitioner initially joined the Kala Mandir, Girls Middle School, Bharatpur on 1.7.1983 on the post of Teacher. At the relevant time the school was recognized and aided by the Government of Rajasthan. The petitioner's appointment was also apprised by Senior Dy. Education Officer (Girls) Bharatpur vide his order dated 27.10.1983. The petitioner continued to work in the Kala Mandir, Bharatpur unto 19.12.1987. In response to the advertisement issued by the Navodaya Vidyalaya Samiti, New Delhi for appointment on the post of Teacher Grade 111 petitioner also applied for Teacher Grade III (Hindi). The petitioner was selected through proper channel and since the line of the petitioner on the post of teacher remained with the Kala Mandir, Bharatpur and after selection on the post of Teacher Grade 111 petitioner was permitted to proceed on deputation by the management of Kala Mandir, Bharatpur with the approval of the Inspector of Girls Schools, Bharatpur and petitioner joined his service on 22.12.1987 at Jawahar Navodaya Vidyalaya Patan, District Sikar on the post of Teacher Grade III (Hindi). Initially the period of deputation was fixed for 2 years and thereafter, period of deputation was extended by another year. The petitioner has been absorbed on the post of Teacher Grade HI (Hindi) under Navodaya Vidyalaya Samiti, District Sikar with the approval of Dy. Director, Navodaya Vidyalaya Samiti (Regional Office) Jaipur.

3. In the mean time the Rajasthan Public Service Commission issued an advertisement dated 23.8.1989 inviting the application for appointment on the post of Senior Teacher (Hindi). On 20.5.1990 a written/screening test was held by the RPSC and vide letter dated 27.12.1990 the petitioner asked to appear for interview on 19.1.1991. At the time of interview the RPSC asked the petitioner to furnish the certificate for the proof of her work as permanent Rajasthan Government employee within the period of 15 days. Pursuant to that the petitioner submitted a certificate issued by the Kala Mandir, Bharatpur on 24.1.1991. By letter dated 8.3.1991 the petitioner was informed by the Rajasthan Public Service Commission that he has been selected for appointment on the post of Senior Teacher (Hindi) on provisional basis and her name find place at serial No. 44 in the select list. The petitioner was again asked to furnish the certificate having worked as a permanent Rajasthan State Government employee vide letter dated 20.3.1991. The petitioner again submitted a certificate issued by the Kala Mandir, Bharatpur as earlier submitted at the time of provisional appointment on 24.1.1991. After examining and scrutining the certificate/document submitted by the petitioner, the RPSC informed that since the petitioner failed to submit the requisite certificate to show that she is permanent employee of the Rajasthan Government and her candidature on account of being over-age is rejected and her case was not found fit for relaxation as is given in case of the Government employee. The petitioner submitted his representation against the rejection on 1.7.1991; Learned counsel for the petitioner submits that since the petitioner is working in the Kala Mandir, Bharatpur which is duly recognised by the State Government and fully controlled and managed by the nominees of the State Government. It has also been submitted that the Navodaya Vidyalaya Samiti has also been constituted by the Ministry of Human Resource Development on the pattern of Kendriya Vidyalaya and also fully controlled and managed by the nominees of the Central Government and thus as agency of the Central Government. Therefore, the petitioner rightly claimed the benefit of age relaxation as a permanent employee of the State of Rajasthan in her application as the petitioner has been regularly appointed in Kala Mandir after due selection by the selection committee and approved by Senior Deputy Education Officer (Girls) Bharatpur. Thus both institutions Kala Mandir, Bharatpur and Navodaya Vidyalaya Samiti are the agencies and instrumentalities of the State. It is further submitted that Navodaya Vidyalaya Samiti has been constituted by the Ministry of Human Resource Development on the pattern of Ken- driya Vidyalaya bangthan which is fully controlled and managed by the nominee of the Government. Since the petitioner was appointed for discharging public duty or imparting knowledge by working in the agency of the Government, the RPSC acted illegaly in denying the benefit of the age relaxation to the petitioner as permanent employee of the State.

4. Learned counsel for the petitioner further submits that amendment in service rules 1971 in regard to relaxation of age was necessitated on account of the fact that no direct recruitment for the posts covered under the aforesaid Service Rules 1971 was made for last more than 4 years and in the meanwhile a large number of candidates like the petitioner become overage so fixing a cut of date as in the amendment on 25.1.1990 is not only discriminatory, arbitrary but illegal and other similarly situated persons and the petitioner may be held within the age limit for the purposes of the appointment on the post of Senior Teacher (Hindi) by extending the benefit of age relaxation beyond the period of 25.1.1990.

5. In support of the argument learned counsel for the petitioner placed reliance on the judgment in the case of Union Public Service Commission v. Dr. Jai Dev Wig and Ors. (1), and much emphasis has been given by the learned counsel for the petitioner on para 3, 4 and 5. In para 4 of the Judgment the Division Bench of the Punjab and Haryana High Court has held that the Post- Graduate Institute of medical Education and Research is fully funded by the Government of India. It follows the government rules. The Union Minister of Health and Family Welfare is the President of the Institute. Officers of the Union Ministries of Health, Finance and Education are on the governing body of the Institute. The action of the Commission in 'not allowing age relaxation to the Faculty working in the Post- Graduate Institute of Medical Education and Research, Chandigarh, will not only be discriminatory but will also deny the chance to get the best possible talent selected for top positions in a new Medical Institution. 'It was further pointed out that the respondent had requested the Commission to call Dr. Wig' for interview for the post of Professor (General Surgery) after giving him age relaxation.' On these premises, it was placed that the claim made by Dr. Wig should be accepted.

6. He further placed reliance on the judgment of the Full Bench in the case of Dr. Bajrang Lal Sharma v. State of Raj. and Anr. (2), wherein the full Bench of this Court has held whether a private educational institution, run by a Society registered under Societies Registration Act, which receives grant-in-aid from the Govt. and which is governed by provisions of Grant-in-Aid Rules can be considered as an agency or instrumentality of the State and, therefore, amenable to writ jurisdiction. In para 13 of this judgment the full Bench has held that the society, which is a private educational institution, is thus not only an aided institution being controlled by the State Government but is also performing the public duty of imparting education and, as such, is an instrumentality and agency of the State and is amenable to writ jurisdiction.

7. In reply to the argument advanced by the learned counsel for the petitioner Mr. S.N. Kumawat appearing on behalf of the RPSC submits that in the advertisement issued by the RPSC it was clearly mentioned that a candidate has to be within the age limit of 18-31 years as on 1.1.1990. The various age relaxation were also mentioned in the Suchna Patrika. Since the advertisement was issued on 23.8.1989 and the last date of receipt of application was 20.10.1989 for 334 posts of Senior Teacher in Hindi out of which 284 for male candidate and 50 for female candidates. The petitioner was allowed to appear in the screening test and it is also undisputed that her name find place in select list. After screening of the application form of the petitioner it was found that the petitioner's date of birth being 18.11.1952 she was 37 years 1 month and 14 days on 1.1.1990 under the rules as they existed at the time the petitioner could have been given age relaxation of 5 years as being female candidate. The petitioner has crossed the age of 36 years as on 1.1.1990. The only relaxation which remains as being a government servant the petitioner could have been given age relaxation up to the 40years. The petitioner vide letter dated 20.3.1991 was asked for furnishing certificate being a government servant but she was unable to furnish such certificate and only submits a certificate issued by the Kala Mandir, Bharatpur. Since the petitioner did not submit any certificate to show that she is being a permanent government employee is entitled for the further age relaxation the commission vide letter dated 7.5.1991 informed the petitioner that she may not be given age relaxation as provided for the government employees.

8. Learned counsel for the RPSC Mr. S.N. Kumawat further denied that the Kala Mandir, Bharatpur is an instrumentality and controlled by the Government and the employee of the Kala Mandir, Bharatpur is termed as a government employee and the provisional selection was absolutely provisional subject to permanent government employee to get the age relaxation for appellant. And the petitioner has got no legal right to ask for appointment even though she is unable to furnish the requisite certificate for getting relaxation certificate as provided under the law.

9. In support of the argument Mr. S.N. Kumawat submits that the same controversy has been decided in the case of Shiv Lal v. State of Raj. and Anr. (3), wherein this High Court has held that the age relaxation has been given to the employees working in the Panchayat Samiti/Zila Parrishad and the same benefit is not extended to the persons like the petitioner who are working in the government-aided schools, therefore, the same is in violation of Articles 14 and 16 of the Constitution. Learned counsel for the petitioner was unable to point out that how this differentiation is arbitrary. If there is a reasonable differentiation then certainly this court would not interfere in its powers under Article 226 of the Constitution.

10. He further placed reliance on an unreported decision of this Court in the case of Madan Lal v. Rajasthan Public Service Commission and Anr. (4), wherein this Court has also examined Rule 10 and after examining Rule 10 and other provisions this Court has opined that none of the above clauses apply in case of the petitioner and he cannot get age relaxation. Admittedly, petitioner is not holding the post in the service. The expression 'service' has been defined in Rule-2(h) of the, rules, which says 'service1 means the Rajasthan Educational Subordinate Service. Hence, the petitioner cannot be said that he was holding post in service to get the benefit of Clause (v). Clause (vi) has also no application as the petitioner is not serving in connection with the affairs of the State. The petitioner is a teacher in a private school, though the school is said to be recognised and aided one, but by this very fact, he does not become an employee of the State Government to get benefit of the rule.

11. Heard learned counsel for the parties, perused the writ petition as well as reply and perused the judgment cited before me and also perused the provision of the Rajasthan Educational Subordinate Service Rules, 1971. To resolve the controversy it is necessary to examine definition of Rule 2(h) which speaks as under:

'Service' means the Rajasthan Educational Subordinate Service; and

(i) 'Substantive Appointment' means an appointment made under the provisions of these rules to a substantive vacancy after the selection by any of the methods of recruitment prescribed under these rules and includes an appointment on probation or as a probationer followed by confirmation on the completion of the probationary period;

12. Rule 10 of the Rajasthan Educational Subordinate Service Rules, 1971 deals with age. Rule 10(ii) is for the upper age limit mentioned above shall be relaxable by 5 years in the case of women candidates and candidates belonging to the Scheduled Castes or the Scheduled Tribes;

13. There is no such provision to give the relaxation as being a government servant in the Rules of 1971. Rajasthan Educational Service Rules 1970 Sub-rule 6 hasgiven relaxation to the government employee. Notwithstanding anything contained contrary in these rules in the case of persons serving in connection with the affairs of the State in substantive capacity, the upper age limit shall be 40 years for direct recruitment to posts filled in by competitive examinations or in case of posts filled in through the Commission. This relaxation shall not apply to urged temporary appointment;

14. The present petitioner was given relaxation in age of 5 years being a women candidate and even if five years relaxation is given being a women candidate she crossed the age limit as she should not be more than 36 years of age but she was found 37 years 1 month 14 days and on the further relaxation which is asked by the petitioner remains as being a employee of the State Government employee in substantive capacity. For that purpose the petitioner furnished the certificate of Kala Mandir, Bharatpur.

15. In view of definition 2(h) of Rules 1971 'Service' means the Rajasthan Educational Subordinate Service and according to definition 2(i) 'Substantive Appointment' means an appointment made under the provisions of these rules to a substantive vacancy after due selection by any of the methods of recruitment prescribed under these rules/and includes an appointment or probation or as a probationer followed by confirmation on the completion of the probationary period. The petitioner wants to take advantage on the ground that since the Kala Mandir, Bharatpur is recognised one and aided by the State Government and the appointments which are made by the Management of Kala Mandir is ultimately approved by the Officer of Educational Department, therefore, the Kala Mandir is fully governed and controlled by the State Government and is instrumentality of the State. The provision of Rule 10(vi) of Rule 1970 are fully applicable to the instant case whereas the petitioner failed to prove as to how she being a member of the service in view of the provision of definition 2 (h) and also fail to submit that she has been given appointment in a substantive capacity. The judgment of Punjab and Haryana High Court was relied by the petitioner in the case of Union Public Service Commission v. Dr. Jai Dev Wig and Ors. (supra), is not applicable to the facts and circumstances of this case as Division Bench of Punjab and Haryana High Court has arrived at the conclusion since the Post graduate Institute of Medical Education and research is not only aided but fully funded by the Government of India and governed by the government rules and the government officials are on the governing body of the institute and Union Minister of Health and Family Welfare is the President of Institute and the Union Minister of Health, Finance and Education are on the governing body.

16. Therefore, in the facts and circumstances, the division Bench of Punjab and Haryana High Court rightly arrived at the conclusion that being a government instrumentalities the relaxation is not to have been given to the respondents. Where in the instant case neither the institute of Kala Mandir is fully funded by the State Government nor managed by the State Government. It is only recognised by the State Government and to the extent to provide did to all private institutions does not mean that such institutions is fully controlled and managed and is instrumentality of the Government and employees of such private institutions are member of the service as defined under Rule 2(h) and (i). The petitioner's appointment neither a term as a service under the Service Rules, 1971 nor a substantive appointment made under these rules against the substantive vacancies after due selection. In the judgment referred by the learned counsel for the respondent RPSC wherein the ratio decided by the High Court in the case of Shiv Lal v. State of Raj. and Anr. (supra), is applicable to the instant case.

17. During the course of arguments it is given out by Ms. Sumilra Goyal, Government Advocate that all the appointments have been made and petitioner is still continuing in Navodaya Vidyalaya Sangathan.

18. I find no force in the writ petition and the same is hereby dismissed with no order as to costs.