P. B. MAJMUDAR, J. ( 1 ) THESE matters were admitted in May, 2000. Subsequently, notice was issued to the State Government, making it returnable on 28th July, 2003. Till today, the State has not cared to enter appearance. It is presumed that the State is not interested in the present proceedings. The matters are proceeded with after hearing Dr. Sinha for the petitioners and Mr. Shah, who is appearing for Mr. D. N. Patel, learned Advocate for the GPSC. With the consent of the parties, the matter is taken up for final hearing today. ( 2 ) THE petitioners, who are possessing the qualification of B. E. (Civil) are in the service of the respondent-State as Assistant Engineers. The petitioners have approached this Court by filing the present petitions for the issuance of a writ of mandamus for quashing and setting aside the impugned communication of the GPSC dated 15. 12. 1999 and further, for directing the GPSC to consider the candidature of the petitioners for recruitment to the post of Deputy Executive Engineer and Executive Engineer, respectively. ( 3 ) THE respondent issued advertisement dated 15. 6. 1996, inviting applications for appointment to the post of Deputy Executive Engineer and Executive Engineer. Pursuant to the aforesaid advertisement, the petitioners applied. However, vide communication dated 15. 12. 1999, at Annexure a to the petitions, the respondent rejected the candidature of the petitioners for recruitment to the post of Deputy Executive Engineer / Executive Engineer on the ground that age relaxation as per Rule 8 (5) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 is not available to the petitioners as they are over aged. Since the petitioners were not allowed to sit in the examination and the written examination was scheduled on 13th May, 2000, they have approached this court by way of these petitions for quashing and setting aside the order dated 15. 12. 1999 at Annexure a to the petitions and to direct the respondent to consider the candidature of the petitioners for recruitment to the aforesaid posts. ( 4 ) IT is argued by Mr. 12. 1999 at Annexure a to the petitions and to direct the respondent to consider the candidature of the petitioners for recruitment to the aforesaid posts. ( 4 ) IT is argued by Mr. Sinha that since it is not in dispute that all these petitioners are already in service and are serving as Assistant Engineers, having a Degree of B. E. , they are eligible to be appointed as Executive Engineer and Deputy Executive Engineer, Class I and Class II Posts, respectively. He submitted that since these petitioners are in the service of the State, they are entitled to relaxation of age as per Rule 8 (5 ). AT this stage, it is relevant to refer to Rule 8 of the Rules, which reads as under :- 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 ") (2) where the prescribed qualification include a qualification as to age limit the appointing authority may relax the age limit in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class to the following extent, that is to say :- (a) in the case of a service or post in a subordinate service or of a State Service in respect of which the prescribed age limit does not exceed forty years, the age limit may be relaxed to the extent of five years. (b) in the case of service or post in the State Service in respect of which the prescribed age limit exceeds 40 years but does not exceed 42 years, the age limit may be relaxed to 45 years. (c) in the case of service or post in the State Service in respect of which the prescribed age limit exceeds 42 years, the age limit may be relaxed to the extent of three years. (c) in the case of service or post in the State Service in respect of which the prescribed age limit exceeds 42 years, the age limit may be relaxed to the extent of three years. (3) if in any case it is considered essential by the appointing authority to appoint to any post a candidate who has crossed the age limit prescribed for the service or post or in the case of any post a candidate possessing the prescribed qualifications be not available and it is considered by the appointing authority that it is necessary to appoint to such post a candidate who does not possess the prescribed qualifications, the appointing authority shall not appoint such candidate to any such post except with the previous approval of the State Government, where such approval is sought, the appointing authority shall state fully the reasons for making the appointment. (4) if for the purposes of recruitment to any post, applications for appointment to such post are invited by means of a notification or advertisement published in a news paper or in any other manner than save as otherwise provided in such notification or advertisement, the question whether a candidate applying for such post has crossed the age limit prescribed for such post shall be determined with reference to the first day of the month immediately following the month in which a period of ninety days from the date of the first publication of the notification or as the case may be advertisement expires and accordingly a candidate shall be deemed to have crossed the age limit if he has attained that age limit before the aforesaid first day of the month. (5) Notwithstanding anything to the contrary, contained in any rules for the time being in force relating to the recruitments to any service or post the upper age limit for the purposes of recruitment prescribed in such rules shall not apply to a candidate who is already in Gujarat Government Service either as a permanent Government Servant or as a temporary Government Servant officiating continuously for six months in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servants and was within the age limit prescribed for the post at the time of his first appointment in Government Service. Provided that such upper age limit shall apply to such candidate in a case where recruitments to a post or service is done through competitive examination or by direct selection for which experience has not been prescribed as one of the qualifications for such post. Provided further that where a post requiring a medical, engineering for veterinary or agricultural degree or diploma as a qualification is to be filled by direct selection through the Public Service Commission a Government Servant who was within the age limit when appointed to such post shall, if he subsequently applies for any such post be entitled to relaxation from the application of the upper age limit prescribed as aforesaid, 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 post 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 thepost (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. (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. (7) in the case of a service or post, if under the regulations made under the proviso to clause (3) of the Article 320 of the Constitution of India it is not necessary to consult the Commission and no special academic qualification relating to age have been prescribed, it shall be in the discretion of the Head of the Department to recruit to such service or post such person as may appear to him to be suitable for the duties attached to such service or post for a period of six months or till the recruitment rules for the post or service are framed, whichever is earlier. (8) where the qualifications prescribed for any service or post include a qualification as to practical experience for a given period and applications are invited for such service or post the period of practical experience shall be computed - (a) Unless otherwise provided in recruitment rule from the date on which requisite qualifications are obtained. (b) With reference to the last date fixed for receipt of such application. (9) notwithstanding anything contained in any rules for the time being in force relating to recruitment to any service or post requiring a Bachelors degree of a recognized University or an equivalent qualification recognized by the Government as an essential qualification, the upper age limit for the purpose of recruitment such service or post all be 28 years, except where the upper age limit prescribed in such rule is more than 28 years. " ( 5 ) DURING the pendency of these petitions, the petitioners were permitted to appear in the examination by the interim order of this Court. Ultimately, they appeared and the result was also placed before this Court. On behalf of the GPSC, it is stated that six candidates have been declared unsuccessful, whose names are given in the affidavit-in-reply filed by the GPSC (at page 28 of the compilation), and that seven have passed the competitive test, out of which five are on select list and two are kept in the waiting list. On behalf of the GPSC, it is stated that six candidates have been declared unsuccessful, whose names are given in the affidavit-in-reply filed by the GPSC (at page 28 of the compilation), and that seven have passed the competitive test, out of which five are on select list and two are kept in the waiting list. That part is reflected in pages 28 and 29 of the affidavit filed on behalf of the GPSC, which is starting from page 24. It is submitted by Mr. Sinha that at least those candidates who have passed are entitled to be appointed to the posts in question. ( 6 ) MR. SHAH, who is appearing for the GPSC, submitted that the GPSC, in principle, is agreeable with the said proposition canvassed by the petitioners. However, according to Mr. Shah, the State Government is of the opinion that since competitive examination is also required to be taken for the post in question, which are to be filled in by direct selection, this relaxation part may not be applicable, for which he has relied upon the letter dated 5. 10. 1999, written by one Mr. B. K. Parmar, Additional Secretary. The said letter, as such, on the face of it, is absolutely wrong and the State has not even cared to defend these matters. It is not possible to know as to on what basis the said B. K. Parmar has addressed the letter to the GPSC. It seems that even the judgment rendered by the High Court in Special Civil Application No. 3780 of 1983 (Coram : A. N. Divecha, J.) has not been taken into consideration. ( 7 ) SO far as the reading of the rule is concerned, no such qualification is attached in the said rule, by which if a person is to go through the competitive examination, he cannot get the benefit of age relaxation for getting appointment as direct selectee. Mr. Sinha has also relied upon the judgment dated 6. 4. 1992, passed in Spl. C. A. No. 3780 of 1983, by this Court (Coram : A. N. Divecha, J. ). In the said decision, this Court (Coram : A. N. Divecha, J.), following an earlier judgment rendered by another learned single Judge (Coram : R. C. Mankad, J.) in Ajit K. Shahani and another v. Gujarat Public Service Commission and anr. C. A. No. 3780 of 1983, by this Court (Coram : A. N. Divecha, J. ). In the said decision, this Court (Coram : A. N. Divecha, J.), following an earlier judgment rendered by another learned single Judge (Coram : R. C. Mankad, J.) in Ajit K. Shahani and another v. Gujarat Public Service Commission and anr. , 1986 GLH 352 , wherein the question of relaxation of the upper age limit in the light of Rule 8 (5) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967, came up for consideration, held as under :-"he applied for the post of Class-I/class-II some time in December, 1981. It is not in dispute that he cleared the competitive examination held by the Commission some time in February 1982. It is also not in dispute that he appeared at the viva voce and the personality test on 25th February, 1983. It transpires from the record of this case that he was successful in his viva voce and personality test. He was denied a Class-II post only on the ground that he had crossed the upper age limit prescribed for the said post. In view of the interpretation placed on Rule 8 (5) of the General Recruitment Rules in the light of Rule 6 (1) of the Deputy Engineers Recruitment Rules and Rule 5 (a) of the Executive Engineers Recruitment Rules, I am of the opinion that he is eligible for either post and he is entitled to relaxation of the upper age limit. "it is required to be noted that the petitioners applied for the posts in question while in Government service, and, as pointed out by Mr. Sinha, when even NOC was also given by the concerned Department, no exception can be made out in the matter of giving them relaxation, simply because in their case, competitive examination element is involved. It is not possible to uphold the contention which is raised by the State Government, through its Executive Engineer, by way of a letter written to the GPSC. ( 8 ) EVEN Mr. Shah, on the basis of his instructions and on the basis of Rules, supports the case of the petitioners so far as relaxation part is concerned. It is not possible to uphold the contention which is raised by the State Government, through its Executive Engineer, by way of a letter written to the GPSC. ( 8 ) EVEN Mr. Shah, on the basis of his instructions and on the basis of Rules, supports the case of the petitioners so far as relaxation part is concerned. ( 9 ) IT is also required to be noted that under the circumstances, at least those petitioners, who have passed the examination, and who are in the select list, are entitled to be appointed on the respective posts, for which they are selected. However, so far as those who are on the waiting list are concerned, till they get the chance for appointment within the relaxed age limit, only upto that period, they will be entitled to be eligible for such appointment. It is also required to be noted that only those candidates who have passed the examination are eligible for getting appointment and those who have failed, naturally, cannot get the benefit of the present judgment. 4th August, 2003 ( 10 ) SO far as the candidates in the waiting list are concerned, their cases are required to be examined after the selected candidates are appointed and if there is any vacancy, naturally, at this stage, cases of the employees on waiting list are required to be considered as per the Rules and Regulations. However, the wait listed candidates can get their chances for getting appointment provided the select list is in existence and not otherwise. It is clarified that this Court has considered the question of age relaxation as per the provisions under the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 and as per the said Rules, if the petitioners are entitled to relaxation, they should not be denied such benefit, simply because they have been appointed as direct recruit on the basis of competitive examination and that is the main issue which has been decided by this Court in these petitions. As stated earlier, in my view, there cannot be any discrimination in relaxation part simply because for a given post, competitive examination is held, and, uniform treatment should be given to these petitioners irrespective of whether they have come through competitive examination or otherwise. ( 11 ) AT this stage, it is required to refer to the affidavit-in-reply filed by the GPSC. ( 11 ) AT this stage, it is required to refer to the affidavit-in-reply filed by the GPSC. In paragraph 11 of the said affidavit filed by one Pranlal Kantesaria, Deputy Secretary, it is stated as under :-". . . . . . . . . 11. I say that rule 4 of recruitment rules for the post of Executive Engineer (Civil), Class-I and Deputy Executive Engineer (Civil) Class-II, is reproduced as under for ready reference, on basis of which the recruitment to the post in question is to be considered through competitive examination. "4. For appointment by direct selection, a competitive examination shall be held by the Gujarat Public Service Commission in accordance with the rules mentioned in Annexure - I appended hereto. The examination shall be common for both the services, viz. , G. S. E. Class I and G. S. E. Class II, the result thereof shall be arranged in order of merit of the candidates and the appointments to the G. S. E. Class-I or Class-II shall be made seriatim from the list of result prepared for the two cadres by the Gujarat Public Service Commission subject to the fulfilment of requirements of physical fitness and other provisions of these rules. The qualified candidates securing the highest places in order of merit, shall be offered appointments in the G. S. E. Class-I according to the number of vacancies declared for such recruitment to that cadre. The candidates securing the next higher places, in order of merit in the list shall be offered appointments to the G. S. E. Class-II, provided they have indicated their willingness to be so appointed in their application to the Commission for admission to the examination". . . . . . . . . . . "in the facts and circumstances of the case, I am of the view that simply because the petitioners have undergone competitive examination is no ground for denying them the benefit of age relaxation as provided under Rule 8 (5) and such other Rules. ( 12 ) ACCORDINGLY, in view of this judgment and taking into consideration the judgment of this Court (Coram : A. N. Divecha, J.) in Special Civil Applicaiton No. 3780 of 1983, the State is directed to give appointment orders to the selected candidates. The impugned communication of the GPSC dated 15. 12. 1999 is quashed and set aside. ( 12 ) ACCORDINGLY, in view of this judgment and taking into consideration the judgment of this Court (Coram : A. N. Divecha, J.) in Special Civil Applicaiton No. 3780 of 1983, the State is directed to give appointment orders to the selected candidates. The impugned communication of the GPSC dated 15. 12. 1999 is quashed and set aside. ( 13 ) THE petitions are accordingly allowed to the extent indicated above. Rule is made absolute. No costs. In view of the disposal of the main Special Civil Applications, Civil Applications 2926, 2928 and 2929 of 2003 are also disposed of. Rule is discharged. No costs. .