Whether Reporters of Local Papers may be allowed to see the judgment ?
NO 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO 5 Whether it is to be circulated to the civil judge?
NO ========================================================= HITEN MAHENDRABHAI PATEL & 29 - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance :
MR KB PUJARA for Petitioner(s) : 1 - 30.
MS MEGHA CHITALIYA, AGP for Respondent(s) : 1, None for Respondent(s) : 2 -
3. ========================================================= CORAM :
HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 26/4/2012 CAV JUDGMENT (1) By way of the present petition under Article 226 of the Constitution of India, the petitioners have inter-alia prayed for the following reliefs:-
"(a) to direct the respondents to grant general relaxation of atleast Five years in the upper-age limit in the recruitment of Assistant Inspectors of Motor Vehicles (Class-III) for which procedure is going on as stated in Annexure-B, C and D and E hereto, as the recruitment for the said post has not been undertaken since the year 1994;
(b) to direct the respondents to release the advertisement for recruitment to the post of Assistant Inspectors of Motor Vehicles (Class-III) only after providing for general relaxation of atleast Five years in the upper-age limit for the candidates of all categories in such recruitment;
(c) the respondents be restrained from issuing any advertisement for recruitment to the post of Assistant Inspector Motor Vehicles (Class-III) without providing for general relaxation of atleast Five years in the upper-age limit for candidates of all the categories;
(d) to direct the respondents to take decision on the representations made by the petitioners and others for granting general relaxation in the upper-age limit in the recruitment for the post of Assistant Inspect of Motor Vehicles (Class-III), and to communicate such decision to the petitioners, before issuing any advertisement for recruitment to the said posts;
(e) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to grant general relaxation of atleast Five years in the upper-age limit in the recruitment of Assistant Inspectors of Motor Vehicles (Class-III) for which procedure is going on as stated in Annexure-B, C, D and E hereto, as the recruitment in the said post has not been undertaken since the year 1994;
(f) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to release the advertisement for recruitment to the post of Assistant Inspectors of Motor Vehicles (Class-III) only after providing for general relaxation of atleast Five years in the upper-age limit for candidates of all categories in such recruitment;
(g) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to restrain the respondents from issuing any advertisement for recruitment to the post of Assistant Inspector Motor Vehicles (Class-III) without providing for general relaxation of atleast Five years in the upper-age limit for candidates of all the categories;
(h) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to direct the respondents to take re-consider the impugned decision dtd. 12.10.2011 on the representations made by the petitioners and others for granting general relaxation in the upper-age limit in the recruitment for the post of Assistant Inspect of Motor Vehicles (Class-III), and to communicate such decision to the petitioners, before issuing any advertisement for recruitment to the said posts;
(i) to grant any other appropriate and just relief/s;"
(2) Petitioner Nos.3, 18 and 19 are Bachelor of Engineering in Mechanical and rest of the petitioners are Diploma in Mechanical Engineering. It is the case of the petitioners that though the petitioners possess requisite educational qualifications for the posts of Assistant Inspector of Motor Vehicles (Class III), the recruitment of which is governed by "Assistant Inspector of Motor Vehicles (Class III) Recruitment Rules, 2002". As the respondents have not undertaken the process of recruitment to the said posts since more than 16 years, the petitioners have not got any opportunity to apply for the said posts. It is the case of the petitioners that as the petitioners have now crossed the prescribed age bar (28 years), the petitioners shall not get an opportunity for being recruited to the said posts.
(3) It further transpires from the record of the petition that by a communication dated 18.9.2009, the Deputy Commissioner of Transport, State of Gujarat has sent a requisition for recruitment of 83 posts of Assistant Inspector of Motor Vehicles (Class III). It further appears from the record of the petition that one of the petitioners i.e. petitioner No.1 herein filed an application for getting information from the Gujarat Public Service Commission on two points. Firstly whether the Commission has received any requisition for recruitment of Inspector of Motor Vehicles (Class II) and Assistant Inspector of Motor Vehicles (Class III). Secondly whether any relaxation in age is provided for. Pursuant to the said application filed by petitioner No.1 dated 28.7.2011, by communication dated 6.8.2011, the Gujarat Public Service Commission has informed petitioner No.1 that such a requisition is received by the Commission and has further informed petitioner No.1 that for the said recruitment, age relaxation is provided for the reserved category candidates as per the Rules. It further appears that similarly by an application dated 27.7.2011 filed under the provisions of RTI Act, petitioner No.1 asked for certain information as enumerated in the said application (Page 48 of the paper book), whereby the following information was sought for :-
(i) At present how many posts of Inspector of Motor Vehicles (Class II) and Assistant Inspector of Motor Vehicles (Class III) are vacant?
(ii) When was the last recruitment undertaken for the posts of Inspector of Motor Vehicles and Assistant Inspector of Motor Vehicles?
(iii) Why steps were not taken by the Department to fill in the vacant posts of Inspector of Motor Vehicles and Assistant Inspector of Motor Vehicles for such a long time?
(iv) If recruitment for the posts of Inspector of Motor Vehicles and Assistant Inspector of Motor Vehicles was undertaken, whether any age relaxation was provided for or not?
(v) To give information as to whether any steps are taken against the responsible officer who has delayed the recruitment of Inspector of Motor Vehicles and Assistant Inspector of Motor Vehicles?
(vi) If the recruitment to the post of I.M.V. and A.I.M.V. is not undertaken, whether any alternative arrangement or provision is there for those candidates who have crossed the age limit during the said period?
Pursuant to such application filed by petitioner No.1, respondent No.2 has replied that there are 76 vacant posts of Inspector of Motor Vehicles (Class II) and 140 vacant posts of the Assistant Inspector of Motor Vehicles (Class III). It is also further stated under the old Motor Vehicle Inspector Recruitment Rules, the posts of Inspector of Motor Vehicles were to be filled in by promotion and hence, no direct recruitment is undertaken. As candidates were not available in the feeder cadre, the Recruitment Rules were amended by a notification dated 27.1.2011 and the procedure for direct recruitment was undertaken. It is also further stated that the last recruitment to the posts of Assistant Inspector of Motor Vehicles (Class III) was undertaken in the year 1994.
(4) It also further transpires that the Gujarat Motor Vehicles Department Technical Officer's Association addressed a letter to the Principal Secretary of General Administration Department of the State of Gujarat as well as the Commissioner of Transport, whereby a request has been made by the said association and has recommended that, in case where the candidates otherwise are eligible for the posts of Assistant Inspector of Motor Vehicles (Class III) but have crossed the age bar of 28 years, age relaxation may be granted.
(5) It appears from the record that thereafter, the petitioners preferred a writ petition before this Court being Special Civil Application No.12636 of 2011 which came to be disposed of by this Court (Coram: H.K.Rathod, J. as he then was) by order dated 29.8.2011. By the said order dated 29.8.2011, this Court was pleased to direct the respondents to decide the pending representations. It is necessary to quote the following paragraphs:-
"4. In present petition, according to petitioners, they are possessing qualification of Diploma in Automobile Engineering or Diploma in Mechanical Engineering or Degree in Mechanical Engineering. Means they are qualified for post of Assistant Inspector of Motor Vehicles (Class III). However, as per Recruitment Rules upper age limit is fixed as 28 years old but grievance of present petitioners are that more than sixteen years have passed, last recruitment was made in the year 1994. Therefore, petitioners are having no opportunity to apply for said posts though they are qualified for same since many years. The apprehension made by petitioners is that advertisement is likely to issue very shortly and for that representation is already made by petitioners to respondent to grant relaxation of at least five years in upper age limit for all categories in said recruitment. Therefore, present petitions are preferred by petitioners.
5. The representation made by petitioners to Secretory, Ports and Transport Department page 92 dated 18/8/2011, Commissioner of Transport page 93 dated 18/8/2011 and G.A.D., State of Gujarat page 94 dated 18/8/2011.
6. Learned advocate Mr. Pujara submitted that till date no response or reply given by respondents. Considering it, it is directed to respondents i.e. Secretory Ports and Transport Department, Commissioner of Transport Gujarat State and Gujarat Public Service Commission to consider representation made by petitioners and also examine grievance of present petitioners and pass appropriate reasoned order in accordance with law within a period of ten days from date of receiving copy of present order and communicate decision to petitioners immediately.
7. It is further directed to respondent to consider case in light of other recruitments wherein upper age limit relaxation has been granted by State Government. Let that may be also considered by respondent while considering representation made by petitioners.
8. In view of above observation and direction, present petitions are disposed of by this Court without expressing any opinion on merits. Direct service today is permitted.
9. However, in case if ultimate decision is adverse to petitioners, then it is open for petitioners to challenge same before appropriate forum in accordance with law."
(6) It also appears that as the time limit to decide as per the directions, as aforesaid, could not be met with by the respondents, the respondents herein filed an application for extension of time of four weeks being Misc. Civil Application No.2412 of 2011 which came to be granted by order dated 15.9.2011 by this Court (Coram: Anant S. Dave, J.). It further transpires that by a letter dated 16.9.2011, the Gujarat Public Service Commission informed petitioner No.1 that the matter pertaining to grant of age relaxation falls within the jurisdiction of the State Government. It further transpires that by a communication dated 12.10.2011, the State Government decided the representation of the petitioners and has come to the conclusion that no age relaxation can be granted to the petitioners for the posts of Assistant Inspector of Motor Vehicles (Class III). Being aggrieved by the said decision, the present petition is filed.
(7) Mr.
K.B. Pujara, learned advocate for the petitioners has taken this Court through the averments made in the petition and more particularly, has vehemently submitted that the communication dated 12.10.2011 is without any application of mind. It is submitted that the representation has been rejected on irrelevant grounds and the respondent authority while considering the representation has wrongly rejected the same on spacious ground that on 8.2.2010, only few vacancies were available. It is therefore submitted that thus, the petitioners have suffered injustice on account of the inaction on the part of the respondents in not undertaking the recruitment process for the posts in question.
(8) Mr.
Pujara submitted that the respondent authorities have just rejected the representation of the petitioners on the ground that the power to relax any of the provision of the Rules is discretionary power of the State Government for which the State Government cannot be compelled. It is submitted that in fact the representation was made only in order to see that such discretionary power is exercised in judicious and just manner by the respondent authorities. Mr. Pujara further relying upon such decision taken by the State Government in relation to the recruitment of SRP Lokrakshaks, Sahayak Karkun (Class III), Vidhya Sahayaks pointed out that in those cases, the Government has exercised discretionary power which ought to have been exercised in the present case also. Mr. Pujara further submitted that the State Government while rejecting the representation filed by the petitioners has lost sight of the important fact that since 1994, there is no recruitment undertaken by the Government for the posts in question and therefore, the discretion ought to have been exercised by the respondents in judicious manner and the stand taken by the State Government that there are sufficient number of candidates available for the posts in question is irrelevant consideration and the same is patently arbitrary and bad in law.
(9) Mr.
Pujara relying upon the Apex Court judgment in the case of Pradip Gogoi Vs. State of Assam, reported in (1998) 8 SCC 726, submitted that the delay in initiation of recruitment process is violative of Article 16(1) of the Constitution of India because the eligible candidates like the petitioners are denied the right to be considered for the purpose of recruitment. It is, therefore, submitted that the petition deserves to be allowed and the State Government be directed by this Court to provide for age relaxation of 5 years in the upper age limit for the posts in question. Mr. Pujara further relying upon the provisions of the Recruitment Rules, 2002 submitted that the said Rules provide for relaxation of upper age limit in favour of the candidates who possess exceptionally good qualification and/or experience or both. It is further submitted that taking into consideration the fact that the Government has not initiated any recruitment process since 1994 for the posts in question, as provided under Rule 16 of the Gujarat Civil Services (Classification and Recruitment (General)) Rules, 1967, age relaxation for a period of at least 5 years should be provided in public interest. It is further submitted that in fact by making the provision for relaxation in the upper age limit as provided for by the petitioners, the petitioners and other similarly situated candidates would get an opportunity of employment in public service and the respondents will have a wider choice to select the candidates with better merits and long experience. It is further submitted that even as per the provisions of Section 213 of the Motor Vehicles Act, 1988, the State Government has power to establish a Motor Vehicles Department and to appoint officers as it thinks fit. It is submitted that in fact the Motor Vehicles Department is suffering from huge shortage of the officers as more than 60% of the posts are lying vacant since many years. It is, therefore, submitted that wholly experienced and meritorious candidates are required to be recruited and by relaxation in upper age limit as prayed for in the present petition, the said object would be achieved. It is, therefore, submitted that the present petition deserves to be allowed.
(10) Considering the above submissions made by the learned advocate for the petitioners, it is worthwhile to note that the petitioners claim to be eligible candidates on the basis of the qualifications for being recruited to the posts of Assistant Inspector of Motor Vehicles (Class III). It transpires from the record and more particularly the order impugned in the present petition that the State Government has already initiated the procedure for recruitment to the posts in question. As directed by this Court (Coram: H.K. Rathod, J. as he then was) vide order dated 29.8.2011 passed in Special Civil Application No.12636 of 2011, the State Government has considered the representation filed by the petitioners vide communication dated 12.10.2011. It appears from the record that the Gujarat Public Service Commission has stated in reply to the application filed by petitioner No.1 under the provisions of RTI Act that the State Government has already made requisition for recruitment to the posts of Inspector of Motor Vehicles (Class II) and Assistant Inspector of Motor Vehicles (Class III). It also transpires that the age relaxation is already provided as per the Rules for reserved category. Similarly, on perusing the reply given to the application filed by petitioner No.1 before the State Government in Ports and Transport Department, it transpires that as on 12.8.2011, 76 posts of Inspector of Motor Vehicles (Class II) and 140 posts of Assistant Inspector of Motor Vehicles (Class III) are vacant. It is pertinent to note that in the said reply dated 12.8.2011, it is mentioned that as per the old Recruitment Rules for the posts of Inspector of Motor Vehicles, the mode of recruitment to the posts of Inspector of Motor Vehicles was by promotion and therefore, no direct recruitment process has been undertaken. It is also submitted that as sufficient number of candidates were not available in the feeder cadre, the Recruitment Rules have been amended by a notification dated 27.1.2011, whereby the mode of direct recruitment is provided in the so amended Rules. It is further stated that on the basis of the same, the recruitment process is initiated. It is also further stated that since 1994, no recruitment for the posts of Assistant Inspector of Motor Vehicles (Class III) was made.
(11) According to the petitioners, they are qualified persons to be considered for the posts in question. However, when to make recruitment is the prerogative of the respondents. In the instant case, the petitioners as qualified persons do not have any inherent right for the same. The reliance placed for by the petitioners by citing examples of use of discretionary power by the State Government in cases of recruitment of SRP Lokrakshaks, Sahayak Karkun (Class III) and Vidhya Sahayaks fall within the realm of policy of the State Government and the petitioners as eligible persons cannot insist that in their case also, such a discretion has to be exercised by the State Government and as aforesaid, when no right is created in favour of the petitioners, the respondents cannot be directed by this Court in its jurisdiction under Article 226 to relax the upper age limit for the present petitioners.
(12) It would be appropriate to quote Rule 16 of the Gujarat Civil Services (Classification and Recruitment (General)) Rules, 1967.
"16. Appointment by relaxation of rules:-
Notwithstanding anything contained in these rules, the State Government may, in the interest of public service:-
(i) fill up a post by appointment of an officer of Defence Service or All India Service,
(ii) make appointment to any service or post by a method other than that prescribed under these rules, or
(iii) relax any of the provisions of these rules:
Provided that where the appointment to any service or post is to be made in consultation with the Commission, no such appointment or relaxation under clause (ii) or (iii) above shall be made except in consultation with the Commission.
16A. Where a Government Servant temporarily appointed to a post is selected by the Commission for appointment to that post, the Commission may, notwithstanding anything contained in the recruitment rules relating to that post in respect of period of probation, while recommending appointment of such Government servant to that post also recommend reduction in the period of probation in respect of such Government servant by such period which does not exceed the period for which such Government servant has rendered service in that post prior to his selection by the Commission.
16B. Savings:-
Nothing in these rules or any rules or orders relating to recruitment in or promotion to any service or posts included in the State Services or subordinate services shall affect any orders made by the State Government relating to-
(a) reservations to be made in that service or in relation to those posts in pursuance of clause (4) of article 16 of the Constitution,
(b) relaxation of age limit, and
(c) other concessions.
In respect of persons belonging to the Scheduled Castes, Scheduled Tribes and other backward classes in the State.
16C. Notwithstanding anything contained in these rules or in any rules or orders relating to recruitment to any service or post included in the State, subordinate or inferior services under the State, the Upper age limit prescribed for appointment by direct selection to such service or post shall be relaxed for FIVE years as far as it relates to the advertisements given by the GPSC and all other Recruiting Authorities/Agencies during the year, 1992 for recruitment in the said year. This relaxation in the upper age limit shall also be applicable to all the recruitment done through the Employment Exchange etc., in the year, 1992."
(13) No doubt, Rule 16 empowers the State Government to provide for relaxation of Rules and the upper age limit. However, only because the petitioners become ineligible because of age bar, it cannot be urged that in the interest of public, in the instant case also, the State Government should be directed to relax the upper age limit. It appears from the order impugned in the present petition that as per the directions issued by this Court, as aforesaid, the State Government after examining the representation filed by the petitioners has thought it fit not to exercise discretion by relaxing upper age limit for the recruitment of the posts in question. On considering the record of the petition as stated above, it transpires that the State Government has already undertaken the process of recruitment for the posts in question. The State Government has also sent its requisition to the Gujarat Public Service Commission and has also notified the vacancies for the posts in question and therefore, it cannot be said that there is any violation of Article 16 of the Constitution of India. The Apex Court in the case of Pradip Gogoi (supra) has observed in Para 2 as under:-
"2. Though Mr. Goswamy, learned counsel appearing for the petitioners, is right in contending that opportunity should be given to such people and the petitioners too would have had also applied for appointment having considered their cases awaiting for such an appointment since their cases were tested by the Public Service Commission and kept in the waiting list, omission to appoint them affects their rights seriously under Article 16(1) of the Constitution. We cannot give a direction to consider their cases for appointment from the wait list. The sympathetic vibrations are also responsible for this sagging problem and moral degeneration. Under these circumstances, we are constrained not to accede to the persuasive request made by Mr. Goswamy. However, the authorities are directed to notify forthwith vacancies to the Public Service Commission and the Public Service Commission would take necessary expeditious action for recruitment and recommend the names to the authorities expeditiously, so that the existing vacancies would be filled up and the petitioners and all eligible candidates would also be eligible to apply."
(14) However, in the instant case, the State Government could not undertake the process for recruitment of the posts in question because the old Motor Vehicle Inspector Recruitment Rules provided that the recruitment of the posts of Inspector of Motor Vehicles are to be made by promotion which have been amended by a notification dated 27.1.2011. Secondly, in the case before the Hon'ble Apex Court, the petitioners were part of the waiting list, whereas in the instant case, the petitioners are only eligible persons. As stated above, the State Government has already made requisition to the Gujarat Public Service Commission and the recruitment process is already initiated and therefore, the ratio laid down by the Apex Court in the case of Pradip Gogoi (supra) would not take the case of the petitioners any further.
(15) In view of the above, the petition is meritless and the same is rejected in limine.
[R.M.CHHAYA, J.] mrpandya Top