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Rajasthan High Court · body

2002 DIGILAW 357 (RAJ)

Major Singh v. The Chief Executive Officer

2002-02-12

RAJESH BALIA

body2002
JUDGMENT 1. - Heard learned counsel for the parties. 2. The facts of the case which reveal the case of the petitioner shows that the Advertisement No. 1/91 was issued on 1.6.1991 to fulfil the post of IIIrd grade teachers by the respondents. Minimum age limits for the applicant prescribed was to be 18 yrs. of age and maximum age was not exceeding 33 yrs. The advertisement as was initially published, showed that the relevant date for completing the minimum age was as on 1.1.1991, whereas the maximum age for the same purpose was not to be attained upto 1.1.1992 in the advertisement notice Annexure-P7. It was corrected by corrigendum Annexure-P2 from 1.1.1992 to 1.1.1991. There is no doubt and dispute that on 1.5.1991 the petitioner had not completed 33 years of age and he was eligible to make the application for consideration his appointment on the post. 3. In fact, out of the same selection, three candidates whose date of births fall on 7.7.1958, 1.7.1958 and 6.7.1958 respectively of Banshidhar, Jagpal Singh and Gulab Singh, were selected and found in order of merit at No. 33, 60, 146 of the main list and were given appointments. However, subsequent thereto further appointments were given in the same select list in November, 1992 by preparing a final merit list in which the petitioner's name did not find place and his name was excluded from the merit list altogether. 4. On enquiry, it was revealed that petitioner's name did not find place in the final merit list only because as on the date the final merit list was prepared he has completed 33 years of age, though he has not completed 33 yrs. of age on the relevant date mentioned in the advertisement that is to say 1.1.1991. These facts have not been denied. 5. In that circumstances, this petition was filed pointing out that the relevant date for considering the eligibility of any candidate can only be either the date mentioned in the advertisement or in the absence of any such specific date in advertisement the date on which application could be filed. In the present case the advertisement has clearly mentioned the date on which the criterion of age is to be looked into. 6. In the present case the advertisement has clearly mentioned the date on which the criterion of age is to be looked into. 6. The petitioner filed this writ petition seeking a mandamus that the respondents may be directed to consider his case for giving appointment as Teacher, if he finds place in order of merit amongst candidates from same selection process he may be given appointment. The petitioner holds academic qualifications of M.A. with M.Ed. qualified that is to say he is otherwise duly qualified to hold the post. 7. The Court while admitting the petition on 7.1.1993 made interim order that the petitioner's case be considered provisionally for the post of Teacher Gr.III which order was later on affirmed on 12th January, 1998 in the presence of both the parties. 8. It is informed by the learned counsel for the petitioner and not denied by the learned counsel for the respondents that in pursuance of the interim order, the petitioner's case has been considered by the respondents and he has been given appointment provisionally and he is continuing in the service since then. 9. As noticed by me above, the only reason for not considering the petitioner for appointment disclosed in the return is that the petitioner was within the age limit when he submitted his application form, but at the time of preparing the final list he has completed the maximum age limit of 33 yrs. so he was not called for interview. In para 15 it was further reiterated that the petitioner has completed 33 yrs. of age at the time of preparation of provisional list, therefore he has not been given appointment. 10. The principle is well settled that the age at the time of consideration of preparation of merit list of taking of examination is not relevant for determining whether a candidate fulfils the eligibility on the count of age prescribed for recruitment to the post. The relevant date is date for submitting application or any other date which may be specified in that regard, as in the present case it has been specified in the Advertisement. The relevant date is date for submitting application or any other date which may be specified in that regard, as in the present case it has been specified in the Advertisement. There is no doubt either that as on the date stated in the advertisement the petitioner was within the eligibility age criterion on the relevant date 1.1.1991 and therefore, he could not have been excluded from consideration for appointment to the post in order of merit which he might have secured. Merely because the date on which provisional list was made he has crossed 33 yrs. The petition is likely to succeed on that ground alone. 11. Moreover, it Is apparent that but, for the obvious mistakes committed by the respondents he has otherwise been found eligible and found to be in order of merit where he could be given appointment as disclosed while giving effect to interim order and given appointment. Therefore, there is no necessary to disturb that appointment which has been duly offered to the petitioner under regular selection for the post which was in the first instance, denied on erroneous assumption. 12. The petition, accordingly succeeds. Rule is made absolute and the provisional appointment offered to the petitioner on consideration of the petitioner's case under the orders of the court must now be held to be regular employment. The consequential benefits of being appointed on regular selection shall flow and released to the petitioner, if the same had not already been released to the petitioner. It is clarified that though the petitioner shall be deemed to be regularly appointed with effect from the date any person lower in merit than him was appointed as a result of the selection process in question and will be assigned inter-se seniority accordingly. However, he shall not be entitled to any arrears of remuneration prior to date of actual appointment which was given to him during the pendency of this writ petition. 13. There shall be no order as to costs.Writ Petition allowed - Interim order made absolute. *******