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1997 DIGILAW 1395 (RAJ)

Hardayal Singh Chahar v. State of Rajasthan

1997-11-24

D.C.DALELA

body1997
JUDGMENT 1. :- Petitioner came to be appointed as Sr. Teacher (Lecturer) on temporary basis vide order dated 16.8.1972. Since 1972 he has been continuously in service, and, thus, at the time of filing the writ petition, he had 17 years service to his credit. His services were extended and continued from time to time by way of various orders. According to the petitioners, for all the practical purposes, he is the permanent employee of the Government in the Education Department. In response to the advertisement No. 1/88-89 advertised by the Rajasthan Public Service Commission (respondent No.2), the petitioner applied for the direct recruitment on the post of Head Master. According to the advertisement dated 1.7.1988, the candidates should have attained the age of 24 years and should have been below the age of 31 years. However, the relaxation in age for the period of 15 years, was made available to a member of the Rajasthan Educational Subordinate Service. The petitioner underwent for the selection test conducted by the Rajasthan Public Service Commission (R.P.S.C.), and, came to be selected for the same post on provisional basis. Under communication dated 9.5.1989, the petitioner was, however, called upon to submit the proof that he was a member of the Rajasthan Educational Subordinate Service in the substantive capacity. On 9.5.1989, the Director of the Primary & Secondary Education, Rajasthan, (respondent No. 3), issued a certificate to the petitioner to the effect that his appointment to the service, was liable to be regularised in the near future. The petitioner apprised the R.P.S.C. of the entire situation, and, submitted the certificate issued by the Director. The petitioner claimed the relaxation in age for a period of 15 years which was made admissible for the purpose of Educational Subordinate Service. The R.P.S.C. under communication dated 14.6.1989, did not make available to the petitioner the age relaxation, and, the selection of the petitioner was cancelled on the ground that he was over-age. Feeling aggrieved thereby, the petitioner has preferred this writ petition praying that the order dated 14.6.1989 passed by the respondent No. 3, be quashed, and, the respondents No. 1 to 3 may be directed to treat the petitioner on the post of Head Master on regular basis on which he was duly selected. Feeling aggrieved thereby, the petitioner has preferred this writ petition praying that the order dated 14.6.1989 passed by the respondent No. 3, be quashed, and, the respondents No. 1 to 3 may be directed to treat the petitioner on the post of Head Master on regular basis on which he was duly selected. The petitioner in his petition, has stated at the end of the grounds that the other grounds will be urged at the time of hearing. The respondent No. 2 and the respondents Nos. 1 and 3, have filed separate reply. The respondent No.2 in its reply, has contended that it is true that the petitioner has been working as temporary Sr. Teacher (Lecturer) for the last more than 15 years, but, not in the substantive capacity. It has, further, been admitted that the petitioner was included in the provisional list, and, was recommended for the appointment to the post of Head Master. But, it has been contended that since the petitioner did not produce any material to the effect that he was substantive, and, was a member of the Rajasthan Educational Subordinate Service, his provisional selection was recalled and, his candidature was rejected being over-age, and not entitled to any age relaxation. The respondents Nos. 1 and 3, in their reply, have contended that the petitioner was working as Sr. Teacher on the temporary basis, and, was never appointed in a substantive capacity. Therefore, he was not a member of the Rajasthan Educational Subordinate Service, and, as such, he is not entitled to any age relaxation. According to the respondents No. 1 and 3, the relaxation in age for a period of 15 years, was made admissible only to those employees, who are either permanent or any one who has been appointed on a substantive capacity under the Rajasthan Educational Subordinate Service Rules. The respondents No. 1 and 3 have quoted the column No. 8 of the advertisement No. 1/88-89 which relates to the age and the relaxation therein, it reads as under: HINDI MATTER 361086 A 2. On 22.9.1997 while advancing the arguments, the learned counsel for the petitioner has submitted that the petitioner was entitled to the age relaxation under condition No. 6 of the column No. 8 of the advertisement in question, which has been quoted by the respondents Nos. 1 and 3 in their reply, and, has been quoted above. On 22.9.1997 while advancing the arguments, the learned counsel for the petitioner has submitted that the petitioner was entitled to the age relaxation under condition No. 6 of the column No. 8 of the advertisement in question, which has been quoted by the respondents Nos. 1 and 3 in their reply, and, has been quoted above. According to the learned counsel for the petitioner, the condition No. 6 is in pursuance of proviso (v) to R.10 of the Rajasthan Educational Subordinate Service Rules, 1971, (hereinafter referred to as 'the Rules of 1971'). The learned counsel for the petitioner, further, submitted that even if it is taken that as the age relaxation in pursuance of conditions No. 2 and 7, was not available to the petitioner, he is certainly entitled to have the benefit under condition No. 6, and, as such, he is entitled to the relief prayed for in the writ petition. 3. Since this ground/line of arguments, was not mentioned in the writ petition, and, this has been taken under para No. 12(h) which says that other grounds will be urged at the time of hearing, time was granted to the respondents' side to prepare the arguments/submissions in the light of the submissions made by the learned counsel for the petitioner on 22.9.1997. Ultimately, the final arguments of both the sides in the matter, were heard on 21.10.1997 after giving the respondents' side sufficient opportunity and time to meet/rebut the arguments/submissions made by the learned counsel for the petitioner on 22.9.1997. 4. Rule 10 and proviso (v) thereto of the Rules, of 1971, reads as under.- "10. Age.-A candidate for direct recruitment to a post enumerated in the Schedule must have attained the age of 18 years on the first day of January following the last date fixed for the receipt of application and must not have attained the age of 33 years (in the relevant year for the expression "18 years" and "33 years" were "24 years" and "31 years", respectively.)" Provided ............... ............... ............... (v) that the person appointed temporarily to a post in the service shall be deemed to be within the age limit had they been within the age limit when they were initially appointed even though they may have crossed the age limit when they appear finally before the Commission and shall be allowed not more than two consecutive chances had they been eligible as such at the time of their initial appointment;--" 5. The condition No. 6 of the column No. 8 (which is relating to the age) of the relevant advertisement No. 1/88-89, reads as under:- HINDI MATTER B 6. Evidently, the condition No. 6 and proviso (v) to Rule 10 of the Rules of 1971, are quite similar. It has been admitted before me at Bar that the petitioner would be eligible and would be entitled to the age benefit under condition No. 6 of the advertisement and proviso (v) of Rule 10 of the Rules of 1971, if the expression "a post in the service" is taken to be any post in service, the only difference between the petitioner's side and the respondents' side, is that the expression "a post in the service" means any post in the service, according to the learned counsel for the petitioner, and it means - the post for which applied for according to the respondents. According to the learned counsel for the respondents, the petitioner applied for the post of Head Master, and, therefore, he is entitled to the age benefit under condition No. 6 of the column No. 8 of the advertisement and proviso (v) to Rule 10 of the Rules of 1971, only if he was holding the post of Head Master in temporary capacity, and, since the petitioner was not holding the post of Head Master on the temporary basis, and was rather holding the post of Sr. Teacher on the temporary basis, therefore, he is not entitled to the benefit under the provision while his candidature for the post of Head Master was being considered. 7. The learned counsel for the petitioner has, however, contended that the petitioner is entitled to have the benefit under the aforesaid provisions even when he was holding a post of Sr. Teacher in the Rajasthan Educational Subordinate Service for the consideration of his candidature for the post of Head Master. 8. 7. The learned counsel for the petitioner has, however, contended that the petitioner is entitled to have the benefit under the aforesaid provisions even when he was holding a post of Sr. Teacher in the Rajasthan Educational Subordinate Service for the consideration of his candidature for the post of Head Master. 8. Upon considering the oral submissions made by both the sides, I am of the opinion that the expression "a post in the service" as occurring in the proviso (v) to Rule 10 of the Rules of 1971, would mean any post in the service because in condition No. 6 in the advertisement the expression has been used as " HINDI MATTER " the english-rendering of the Hindi word being " HINDI MATTER ". The combined effect of reading of proviso (v) to Rule 10 and condition No. 6 of column No. 8 of the advertisement, is that persons appointed temporarily on any post in the service, shall be deemed to be within the age limit had they been within the age limit when they were initially appointed even though they may have crossed the age limit when they appear finally before the Commission, and shall be allowed not more than two consecutive chances had they been eligible as such at the time of their initial appointment. The petitioner is, therefore, entitled to have the benefit of these provisions with regard to the age. A candidate who is eligible to have the benefit of age in any of the nine conditions mentioned in column No, 8 relating to the age of the advertisement would be entitled to have the benefit of age even though he may not be eligible under the condition claimed by him. Even if the petitioner has-claimed the benefit of age under condition No. 2 or condition No. 7 of the column No. 8 of the advertisement, he is entitled to have the benefit of condition No. 6 even though he might not have claimed the benefit thereunder. Therefore, under condition No. 6 of the column No. 8 of the advertisement and under proviso (v) of Rule 10 of the Rules of 1971, since the petitioner was appointed temporarily to the post of Sr. Therefore, under condition No. 6 of the column No. 8 of the advertisement and under proviso (v) of Rule 10 of the Rules of 1971, since the petitioner was appointed temporarily to the post of Sr. Teacher in the Rajasthan Educational Subordinate Serve, he shall be deemed to be within the age limit had he been within the age limit when he was initially appointed even though he may have crossed the age limit when he appeared finally before the Rajasthan Public Service Commission, and, he shall be entitled to only two chances if he had been eligible as such at the time of his initial appointment. The petitioner is, therefore, entitled to the benefit under the above provisions if he is, otherwise, qualified and eligible. 9. The order dated July 29th, 1997, passed by this Court in S.B. Civil Writ Petition No. 5446/89 Kanhiya Lal v/s The State of Rajasthan & another , is not applicable to this present case in hand because in that decision, the proviso (v) to Rule 10 of the Rules of 1971, and condition No. 6 of the column No. 8 of the advertisement, was not considered. 10. In the result, this writ petition is allowed. The order/letter dated 14.6.89 of the Rajasthan Public Service Commission, whereby, the selection of the petitioner to the post of Head Master was cancelled on the ground that the petitioner was over-age, is quashed. The respondents are directed to consider the case of the petitioner under proviso (v) to Rule 10 of the Rules of 1971, and, condition No. 6 of the column No. 8 of the advertisement No. 1/88-89, and, issue the necessary orders in accordance with law and rules within the period of three months from today.Petition Allowed. *******