IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3480 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE K.M.THAKER =================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law
4 as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================= UPADHYAY HEMAKSHI DHARAMPRASAD & 3 - Petitioner(s) Versus REGISTRAR SHRI (RECRUITMENT AND FINANCE) & 1 - Respondent(s) ================================================= Appearance :
MR GAURAV CHUDASAMA for Petitioner(s) : 1 - 4. MR GM JOSHI for Respondent(s) : 1, None for Respondent(s) : 2, ================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 13/04/2012 CAV JUDGMENT The petitioners have taken out present petition seeking below mentioned reliefs/directions:-
“10 B) That the Hon'ble Court may be pleased to allow this Special Civil Application by issuing appropriate writ or order direction to the respondents that forms of petitioners on-line be accepted after following all procedures prescribed in advertisement by the petitioners in the interest of justice.
C) Pending admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to issue necessary direction to respondent to kindly make suitable arrangement for accepting form of the present petitioners for the post of Asst. (Jr. Clerk) Class-III pursuant to the advertisement No.RC/1434/2011 in the interest of justice.”
2. So as to consider the reliefs prayed for by the petitioners, it is necessary to take into account the relevant facts involved in present petition.
2.1 The petitioners have in present petition claimed that at present, all the petitioners are working on the establishment of Civil Court, Porbandar on ad-hoc and temporary basis and on fixed remuneration basis as Assistant (Junior Clerk). It is claimed that all the petitioners have been so appointed under order dated 28.11.2006. The copies of the orders issued in favour of the petitioners are placed on record at Annexure – D (page-27 to 30).
2.2 It is also claimed by the petitioners that recently an advertisement has been issued by respondent No.1 inviting applications for recruitment on different posts viz. (i) English Stenographer Grade-I (Class-II), (ii) English Stenographer Grade-II (Class-III), (iii) Gujarati Stenographer Grade-I (Class-II), (iv) Gujarati Stenographer Grade-II (Class-III) and (v) Assistant (Junior Clerk) (Class-III). It is also claimed that the applications are invited on-line and the date and time for commencement of submitting on- line applications was 21.2.2012 at. 12.00 hours and last date and closing time for submitting on-line applications was 20.3.2012 at 23.59 hrs.
2.3 The petitioners have claimed that they are interested in applying for the recruitment on the posts of Assistant (Junior Clerk). The petitioners have also claimed that they are duly qualified as per the qualification criterion mentioned in the advertisement inasmuch as they hold Degree of Bachelor in Commerce and Arts Stream and they have been working on the establishment of the Civil Court, Porbandar since 2006. It is also urged that the petitioners tried to apply, pursuant to the advertisement, for the post of Assistant (Junior Clerk). However, when the petitioners tried to submit their on-line applications, they were required to insert their birth-date in the relevant column. They have also claimed that when they filled up the detailed, their applications were not accepted. In this background, the petitioners have claimed that their applications have not been accepted on the ground that they are not within the age limit prescribed in the advertisement (inclusive of the relaxation). Aggrieved by said non- acceptance of their applications, the petitioners have preferred present petition.
3. Mr. Chudasama, learned advocate has appeared for the petitioners, and Mr. Joshi, learned advocate has appeared for the respondent No.1.
4. Mr. Chudasama, learned advocate for the petitioners, has submitted that according to the advertisement, particularly Clause 3(A) and 3(B), the provisions regarding upper age limit and relaxation have been provided. He submitted that according to Clause 3(A) of the advertisement, the upper age limit for the post of Assistant (Junior Clerk) (Class-III) is 25 years and the additional relaxation of 5 year has been given by respondent No.1 in respect of all posts and all candidates of all categories, i.e. General category and SC/ST/S&EBC category and category of Disabled person as well as category of Ex-serviceman. Mr. Chudasama submitted that the petitioners have been given to understand that it is in view of the said provisions of Clause 3(A) related to upper age limit in the advertisement that the petitioners' applications could not be accepted because the petitioners do not come within the purview of the requirement prescribed for upper age limit. So as to support his said submission, Mr. Chudasama relied on the details mentioned at para-5 and 6 of the petition.
4.1 Mr. Chudasama, learned advocate for the petitioners, heavily relied on the provisions contained under Rule 8 (5) and the proviso thereof of the Gujarat Civil Services Classification & Recruitment (General) Rules, 1967 [hereinafter referred to as “Rules of 1967” for short] and submitted that according to the said Rule 8(5), particularly the proviso thereof, the condition related to age limit would not be applicable to the candidates, who are already in service. He submitted that since all the four petitioners are already in service on Court's establishment, in view of the provisions contained under Rule 8(5) read with the proviso thereto, the condition regarding age limit should not be applied in their case and the decision of not accepting the petitioners' application deserves to be set aside.
4.2 Mr. Chudasama, learned advocate for the petitioners, has, in support of his submissions, also relied on the decision in case of J.C. Parmar v. Gujarat Public Service Commission [2004(3) GLH 630] and the decision in case of Ajit K. Shahani & Anr. v. Gujarat Public Service Commission & Anr. [1986 (1) GLR 347].
5. Per contra, Mr. Joshi, learned advocate for the respondent No.1, submitted that although the said Rules of 1967 are not applicable in present case, relaxation in upper age limit is already granted and the details of the relaxation are clearly mentioned in the advertisement. He submitted that in view of the conditions mentioned in the advertisement and other applicable criteria, the provisions on which the petitioners have placed reliance are not applicable and the same will not help the petitioners, more particularly when the respondent No.1 has already made provision for relaxation in upper age limit. He also submitted that there is no error in non-acceptance of the on-line applications of the petitioners since the petitioners do not fulfill the parameters related to the prescribed upper age limit (including relaxation) and that therefore, the relief prayed for by the petitioners does not deserve to be granted.
6. In the reply affidavit filed by the Dy. Director, High Court of Gujarat dated 26.3.2012 for respondent No.1 it is, inter alia, stated that:-
“5. I further state that, pursuant to the decision taken at the Chamber Meeting held on 20/10/2011, the High Court of Gujarat has decided that since the recruitment process has not been taken place for a long time the age bar be raised by five years, and accordingly, vide instruction Nos.3-A and 3-B of the detailed advertisement dated 15/02/2012 a stipulation of 25 years has been prescribed as the Maximum Age Limit for the post of Assistant (Jr. Clerk) at Sr.No.5, and an additional age relaxation of 5 years has been extended to the General Candidates by the High Court, over and above the age limit of 25 years. Similarly, the reserved categories have been extended a total of 10 years age relaxation over and above the age limit of 25 years and for the Disabled Persons, a total of 15 years age relaxation over and above the age limit of 25 years has been provided. Therefore, in order to be eligible for the post of Assistant (Jr. Clerk) a General Category Candidate should not be above the age of 30 years and should not have been born prior to 20/03/1982, Reserved Categories of SC/ST/SEBC, a Candidate, should not be above the age of 35 years and should not have been born prior to 20/03/1977, and a Candidate belonging to the Category of Disabled Persons should not be above the age of 40 years and should not have been born prior to 20/03/19723. Moreover, it has also been stipulated that, the Upper Age limit for any of the categories, shall not exceed 45 years, while availing the above mentioned age relaxations, in any case, as on the last date fixed for submitting on-line application.
6. I further state that as per criteria prescribed in the on-line application, on the portal, necessary arrangement had been incorporated when the 'Date of Birth' details in the Online Application Form is filled up, so as to give a message to the Candidate, showing “Date of Birth Invalid” in case of those who are 'Under-Age' or 'Over-Age'. Since, none of the Candidates are born between 20/03/1982 and 20/03/1994, as per the criteria prescribed for General Category Candidates, the system would have automatically flashed such message, thus, indicating refusal to register their candidature, on account of their being 'Over-Age'. Furthermore, it may be submitted that no separate age-relaxation has been provided for Temporary employees or for those who are working on ad-hoc basis.
7. I state that with regard to para 6 of the petition, it is stated that it is a misconception on the part of the petitioner to have counted 35 years as the upper age limit for the posts of Assistant (Jr. Clerk), as the High Court has granted additional age relaxation of only 5 years to the Upper Age Limit of 25 years, for the post of Assistant (Jr. Clerk). Thus, no candidates above the age limit of 30 years, in General Category, have been allowed to register their candidates automatically, by the computer system. I further state that it has been stated in the petition that one of them belongs to the 'Reserved Category', hence is eligible for applying for the impugned post, after availing relaxation for reserved category and additional relaxation given by the High Court. However, on the basis of the certificates produced, it is found that, two candidates, Ms. Upadhyay Hemakshi Dharmaprasad and Ms. Rajyaguru Yagneshakumari Gopal belongs to the 'Brahmin Caste' and two candidates, viz. Ms. Vithalani Vibha Jethalal and Ms. Raja Kalpana Pravinchandra belongs to 'Lohana Caste'. Hence, it appears that all of them fall under the 'General Category' and appear to have become 'Over-aged”. The petitioners have not made it clear, as to whom amongst them, belong to the 'Reserved Category' and have also not produced any Caste Certificate in support of the claim.”
7. The advertisement No. RC/1434/2011 has been issued inviting on-line applications from interested and eligible candidates for filling up vacancies in five different posts i.e. (i) English Stenographer Grade-I (Class-II), (ii) English Stenographer Grade-II (Class-III), (iii) Gujarati Stenographer Grade-I (Class-II), (iv) Gujarati Stenographer Grade-II (Class-III) and (v) Assistant (Junior Clerk) (Class-III). The vacancies mentioned in the advertisement are existing vacancies as well as projected/future vacancies.
7.1 The recruitment is to be effected and vacancies are to be filled up by way of competitive examination.
7.2 So far as the essential qualifications for the post in question i.e. Assistant (Junior Clerk) (Class-III) are concerned, it is specified in the advertisement that for the said post, the qualifications would be as under:-
7.3 The provision under Clause 3(A) relates to the condition regarding age limit for the post of Assistant (Junior Clerk). The provision under said Clause 3(A) reads thus:-
7.4 On perusal of the advertisement, it appears that “additional age relaxation of 5 (Five) years in the upper age limit” for all candidates “over and above the prescribed age” is granted. The relevant provisions and conditions related to the age relaxation are mentioned in Clause 3(B), which read thus:-
“(B) Age Relaxation :
The High Court of Gujarat has decided to grant Additional Age Relaxation of 5 (Five) years in the upper age limit for all the candidates over and above age relaxation prescribed. The upper age limit will be relaxed as under:
Note :- The Upper Age limit for any of the categories, shall not exceed 45 years, while availing the above mentioned age relaxations, in any case, as on the last date fixed for submitting 'On-line Application'.”
7.5 Thus, on conjoint reading of the provisions under Clause 3(A) and 3(B), it emerges that while the upper age limit for the post of Assistant (Junior Clerk) (Class-III) is provided at 25 years, further relaxation for 5 years has been already provided. The said provisions are to be read with the note appended to Clause 3(A) and 3(B), which prescribes that the upper age limit for any category shall not exceed 45 years.
7.6 In present case, it is not in dispute that so far as petitioners are concerned, they are in the range of 32 years to 35 years. Learned counsel for the petitioners submitted that the birth date of the petitioner No.1 is 27.11.1980 and the birth date of petitioner No.2 is 15.6.1980 while the birth date of petitioner No.3 is 14.11.1981 and the birth date of petitioner No.4 is 31.5.1977.
7.7 Thus, in view of the said provisions under Clause 3(A) read with Clause 3(B) and in view of the birth-date of each of the petitioners, the applications, sought to be filed on-line by the petitioners, have not been accepted.
8. So as to overcome the said obstacle, the petitioners have relied on the provision contained under Rule 8(5) and Rule 8(5A) of Rules of 1967 and claimed that in their case, the provision related to upper age limit will not be applicable.
9. In this background, it is relevant to take into account the provisions on which learned advocate for the petitioners has heavily relied, i.e. Rule 8(1), Rule 8(5) and Rule 8(5-A). The said provisions read thus:-
“8. Condition as to Prescribed qualifications:-
(1) Subject to the provisions of these rules, no person shall be appointed to any service or post, unless he possesses the qualification, if any, prescribed in the rules relating to the recruitment to such service or post (hereinafter referred to as “the prescribed qualifications”).
(5) “Notwithstanding any thing to the contrary contained in any rules for the time being in force relating to recruitment to any service or post a candidate who is already in Gujarat Government Service, either as a permanent or a temporary servant officiating continuously for six months or more in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servant applied thereafter, for the post under advertisement (hereinafter referred to as “the concerned post”) the upper age limit prescribed for the purpose of recruitment in such rules, shall not apply to him provided he had not crossed the age limit prescribed for the concerned post at the time of his previous appointments;
Provided that the upper age limit shall apply to a candidate whose recruitment to a post or service is made through competitive examination or by direct selection for which experience has not been prescribed as one of the qualification for concerned post;
Provided also that where a Government Servant appointed to a post requiring a Medical, Engineering, Veternary or Agriculture degree or diploma as one of the qualifications, he shall be entitled to relaxation of the upper age limit prescribed for the concerned post provided he had not crossed the age limit prescribed for the concerned post at the time of his previous appointment even if experience has not been prescribed as one of the qualifications for such post.
(5-A) (1) Government servants may be allowed on a uniform basis, relaxation of a maximum period of 5 years or to the extent of equal number of Years for which service has been put in by him, whichever is less, in the upper age limit for recruitment to Class – I or Class – II posts or service, which is to be filled in by direct selection through the Commission for which experience has not been prescribed as one of the qualifications for such post.
(2) The age relaxation shall be admissible to such Government servants who are working in posts which are in the same line and where a relationship could be established that the service already rendered in a particular post shall be useful for the efficient discharge of the duties of the post(s) recruitment to which has been advertised. The decision of the Commission in this regard shall be final.
Provided that a post in the same line means such next lower post from which an employee can be promoted to the post so advertised.
(3) The relaxation admissible in upper age limit under sub-rule (1) above, shall be in addition to the relaxation in upper age limit admissible to the candidates belonging to Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes.”
9.1 In this context, it is appropriate to mention that while relying on the first part of said Rule 8(5) the petitioners have, however, conveniently overlooked and ignored that the later part of the said provision i.e. Rule 8(5) imposes a qualification condition viz. at the time of “previous entry” the person – candidate should not have crossed the age limit prescribed for the post concerned.
9.2 Thus, so as to attract the said provision and so as to take benefit of the provision viz. the upper age limit will not apply in case of candidates who are “in service”, it is necessary for the candidate to establish and to fulfill the condition that he (the candidate) was within age limit and had not crossed the age limit at the time of entry in service i.e. when he was appointed on the said post.
9.3 In present case, the date of previous entry/appointment (i.e. on the post of Clerk on ad-hoc/temporary and fixed salary basis), on the basis of which the petitioners claim that they are “in service”, is 28.11.2006.
9.4 Thus, the petitioners, in present case, do not fulfill and comply said condition. This is evident from the facts that:-
(a) the prescribed age limit for the post is 25 years.
(b) the date of petitioners' previous appointment is 28.11.2006.
(c) the date of birth of petitioners are :-
(d) the petitioners completed/crossed the prescribed age limit of 25 years (for the concerned) post on :-
(e) whereas all four petitioners were appointed on 28.11.2006 i.e. the date of their “previous entry/appointment”
is 28.11.2006.
9.5 Thus, on the date of “previous entry/appointment” on the concerned post all four petitioners had crossed the prescribed age limit (i.e. 25 years) for the said post.
9.6 Hence, in view of the above mentioned facts, the benefit flowing from sub-rule (5) of Rule 8 are not available to the petitioners.
10. Furthermore, on perusal of sub-rule (1) of Rule 8, it also becomes clear that the said provision mandates that “any person who does not possess the qualification, if any, prescribed in the rules relating to the recruitment to such service or post, shall not be appointed to any service or post.”
10.1 Thus, in light of Rule 8(1) a person not possessing prescribed qualification can not be appointed.
In view of the provision under Rule 8(2) age limit may be included in “prescribed qualification”.
In present case, if the advertisement is taken into account it can be seen that age limit is prescribed as one of the qualifications. According to the advertisement in question (whereby the application have been invited), minimum and upper age limit are prescribed and according to the prescribed age limit (mentioned in the advertisement), the petitioners are not within the prescribed age limit and hence, they do not fulfill the qualification as regards upper age limit.
10.2 Therefore, the petitioners are not in position to take shelter under said provision and the relief as prayed for cannot be granted.
11. Before proceeding further, it is also relevant to mention that the petitioners have been engaged on purely ad-hoc and temporary basis and on fixed salary basis. Besides this, their recruitment was not effected after following the procedure prescribed under the applicable Rules. Differently put, the appointment of the petitioners is irregular.
11.1 Now, so far as the said Rules of 1967 on which the petitioners have placed reliance are concerned, it is relevant to note that sub- rule (5) of Rule-8 provides, inter alia, that “a candidate who is already in Gujarat Government Service as a permanent or temporary servant officiating continuously for 6 months or more in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servant ”.
11.2 The expression “already in Gujarat Government Service” employed in the said provision postulates and means a person who is in service after being selected and recruited in accordance with the applicable Rules and after following the procedure prescribed under applicable Rules.
11.3 The said requirement is implicit and inherent in the said provision i.e. Rule 8(5). Besides this, in view of the provision under the Rules 5, 6, 7, 8(1), 9(2), 10 and 16A, it becomes clear that the said requirement has to be read into said Rule 8(1).
11.4 The said expression does not take in its fold the persons who are engaged irregularly and/or without following prescribed procedure and/or by way of back door entry and purely on ad-hoc basis.
11.5 Thus, when the case of the candidate who claims to be “in service” is to be considered, then, as a necessary implication and corollary, it would be obligatory for the candidate to demonstrate and establish that his recruitment and appointment i.e. his entry in service was effected in accordance with, and after following the procedure prescribed under, relevant and applicable rules.
11.6 In this context, it would be relevant to refer to the observations by the Apex Court in Union Public Service Commission v. Girish Jayanti Lal Vaghela [2006(2) SCC 482]. The Apex Court has, in the said decision, observed that:-
“20. For the reasons discussed above, we are clearly of the opinion that respondent No. 1 cannot be said to be a Government servant as he was working on contract basis and, therefore, he was not eligible for any relaxation in upper age limit. The view taken by the High Court is clearly erroneous in law and is liable to be set aside.”
11.7 In present case, even if it is assumed, so as to consider and test the petitioners' claim, that the said Rules of 1967 are, as claimed by the petitioners, applicable to this recruitment process (i.e. recruitment on post in Class III in subordinate court) then also, the petitioners are not entitled to claim and get, and are not eligible for, the benefit from Rule 8(5) as they are not regularly selected and appointed employees “in service” i.e. their appointment is not made in accordance with and after following the prescribed procedure under, said Rules of 1967 and they are engaged purely on ad-hoc/temporary and fixed salary basis.
11.8 Thus, while considering the contention raised by the petitioners on the basis of sub-rule (5) of Rule 8, the fact that the petitioners have not demonstrated and established that they have been selected and recruited after following the prescribed procedure under relevant and applicable Rules, cannot be ignored and overlooked and has to be kept in focus.
11.9 Consequently, the petitioners are not justified in claiming (for the purpose of sub-rule (5) of Rule 8), that they are “in Gujarat Government Service” and that therefore also, the petitioners are not in position to draw any relief or benefit from the said provision, and the relief prayed for by them cannot be granted.
12. Now, the petitioners have by ignoring, and without taking into account, that they are not selected and recruited in accordance with and after following prescribed procedure and that they are engaged on purely temporary/ad-hoc and fixed salary basis, claimed, in light of the provision under Rule 8(5), that the condition regarding upper age limit shall not apply in their case as they are already working on the establishment of Civil Court, Porbandar and therefore they are in Government service since more than 6 months and they have been working as such continuously since 2006 and that therefore, they are to be treated and considered “in service of State Government”, consequently, the upper age limit will not apply in their case.
12.1 Relying on the appointment order dated 28.11.2006, learned advocate for the petitioners, submitted that the petitioner have been working on temporary basis on vacant post and accordingly, they fulfill the requirements mentioned in the first part of sub-rule (5) of Rule 8, i.e. the candidate must be in service either as permanent or temporary servant officiating continuously for six months or more in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servant and that therefore, the condition regarding upper age limit should not be applied in their case.
12.2 On this count, it is relevant that, as mentioned earlier, those who claim to be “in service” and on that basis claim the benefit under sub-rule (5) of Rule 8 of the said Rule of 1967, should, in first place, demonstrate and establish that they have entered the “service” and have been appointed in accordance with and after following the procedure prescribed by applicable Rule for Selection and Recruitment.
12.3 In present case, undisputedly, the petitioners have not been recruited and appointed after following prescribed procedure.
12.4 Thus, their entry “in service” is not in accordance with the applicable rules.
12.5 Hence, otherwise also, the benefit of said provision is not available to the petitioners.
12.6 In this context, it is necessary to note at this stage that, the learned counsel for the respondent No.1 referred to and relied on “Recruitment Rules for Recruitment to Class-III and Class-IV Services in the Subordinate Judicial Services” [hereinafter referred to as “Rules of 1957”] and he submitted that so far as the recruitment on posts in Class-III and Class-IV in subordinate courts is concerned, the provisions and procedure prescribed under the said Rules of 1957 are applicable and are being followed for the process of selection and recruitment on posts in Class III and Class IV in subordinate courts.
12.7 Thus, in view of the submission by learned advocate for the respondent No.1 that the Rules of 1957 are applicable in case of recruitment on the posts in Class III and Class IV in subordinate Courts, the reliance placed on the said Rules of 1967 is misconceived and misplaced and the Rules of 1967 do not aid the case of the petitioners.
13. However, instead of restricting consideration of the case only in light of said submission and disposing the petition on said singular submission, the Court has examined the entire case from all perspectives and all grounds and submissions by the petitioners have been examined on merits.
14. Learned advocate for the petitioners has also relied on the provision contained under Clause (1) of sub-rule (5-A) of Rule 8, which provides that “Government servants shall be allowed on uniform basis relaxation of a maximum period of 5 years or to the extent of equal number of Years for which service has been put in by him, whichever is less, in the upper age limit for recruitment to Class – I or Class – II posts or service. ”
14.1 Relying on the said provision under sub-clause (1) of Rule (5- A), learned advocate for the petitioners also submitted that besides the provision contained under sub-rule (5), it is, otherwise also, necessary to provide relaxation in upper age limit in view of the provisions under clause (1) of sub-rule (5-A) and that in view of the said provisions under sub-rule (1) and clause (1) of sub-rule (5-A) of Rule 8, the petitioners case should not have been rejected and their applications should have been accepted and considered.
14.2 The reliance on the said provision is misconceived and misplaced for more than one reason.
14.3 So as to attract the applicability of said provision, below mentioned conditions must be established:-
(a) recruitment must be to Class-I or Class-II posts or service;
(b) the post (which is to be filled-up) has to be filled-up by direct selection (through Commission);
(c) experience must not have been prescribed as one of the qualifications for the post which is to be filled-up.
14.4 At the outset, it is relevant to recall the submission by respondent No.1 that the Rule of 1967 are not applicable to the process of recruitment on post in Class III and Class IV in subordinate courts.
14.5 Beside this, it is relevant to take note of the fact that it is not in dispute that in present case, special relaxation in upper age limit upto the extent of 5 years is already provided for.
14.6 Thus, even if the provisions contained under sub-rule (5A) read with rule 5 of the said Rules of 1967 were to be taken into account, the relaxation in upper age limit is already provided for, however, unfortunately, the petitioners in present case, do not fall within the age limit applicable even after the relaxation provided for inasmuch as the age limit after special relaxation of 5 years would be 30 years (25 years + 5 years), however, the age of all four petitioners is above the said upper age limit of 30 years.
14.7 Further, the submissions based on the provision contained under clause (1) of sub-rule (5-A) of Rule 8, would not help the petitioners for other two reasons viz. (a) that the said provision would be applicable so far as the recruitment to the post or service in Class I or Class II is concerned, whereas, admittedly the post in question is of Class III; and (b) even otherwise, as per the provisions contained in the advertisement, it emerges that relaxation across the board (i.e. for all candidate of all categories and for all posts) for 5 years has been provided, which is apparent and clear from the advertisement.
14.8 Now, so far as the submissions by learned advocate for the petitioners in light of sub-rule (5) of Rule 8 is concerned, it is necessary to take into account first proviso of sub-rule (5) of Rule 8 which provides that “Provided that the upper age limit shall apply to a candidate whose recruitment to a post or service is made through competitive examination or by direct selection for which experience has not been prescribed as one of the qualification for concerned post;”
14.9 The sub-rule (5) of Rule 8 provides that the criterion of upper age limit would not be applicable to the candidates who are in service. However, according to the said proviso, an exception is carved out from the provisions. The said proviso prescribes that the candidates whose recruitment to the post or service is made where experience has not been prescribed as one of the qualification for the concerned post then, the provisions regarding upper age limit shall apply to such candidates.
14.10 In this context, if the advertisement is examined, then it emerges, as recorded hereinabove, that any experience is not prescribed for the post in question. Under the circumstances, it is difficult to accept the petitioners contention that since they are in service though on purely ad-hoc basis and on consolidated salary basis and although their appointments are made irregularly, their case should be treated as covered under sub-rule (5) of Rule 8 and the provision regarding upper age limit should not be made applicable in their case.
The proviso to the said sub-rule (5) does not help the case of the petitioners.
15. Furthermore, the petitioners' claim and contentions are not required to be considered also in view of the fact that the petitioners have approached this Court at very belated stage, inasmuch as, the advertisement was published on 15/16.2.2012 and the submission of on-line application commenced from 21.2.2012 whereas present petition was circulated for admission hearing on 19.3.2012, after having been filed on or around 16.3.2012.
16. Learned advocate for the petitioners, in support of his submissions, relied on the decision in case of J.C.Parmar (supra), however, in the facts and circumstances of present case, which are materially different from the facts of the cited case, the said decision would not help the petitioners. The decision in the case of Ajit K. Shahani (supra) is also in different set of facts. The foregoing discussion and the narration of facts of present case demonstrate as that the facts of present case are substantially and materially different from the fact in the cited two cases. Thus, the said decision does not carry the petitioners' case any further.
17. For the foregoing discussion and reasons and on overall consideration of all facts and entire material on record, it emerges that the petitioners have failed to make out any case in their favour. The petition does not deserve to be entertained. The petition is, therefore, not accepted. Accordingly, the petition stands disposed off.
(K.M.Thaker, J.) kdc