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Rajasthan High Court · body

2005 DIGILAW 1874 (RAJ)

Satyaveer v. State of Rajasthan

2005-07-22

AJAY RASTOGI

body2005
Judgment Ajay Rastogi, J.-By this writ petition, petitioner has assailed upper age 40 years as on 01.01.1997, as referred to in Advertisement dated 011.1996 (Annexure-2) issued by respondent No. 2 for recruitment and appointment to the post of Sub-Inspector (AP) & Platoon Commander reserved for ex-servicemen under Rajasthan Police Subordinate Service Rules, 1989 (“Rules, 1989”) read with Rajasthan Civil Services (Absorption of Ex-Servicemen) Rules, 1988 (“Rules, 1988”). 2. Petitioner being an Ex-Servicemen as per Discharge certificate (Annexure-1), applied for consideration of his candidature for appointment to the post of Sub-Inspector of Police pursuant to an advertisement dated 011.1996 (Annexure-2), but the same was denied on the ground that he has crossed upper age of 40 years as on 01.01.1997 in terms of advertisement (Annexure-2). 3. Shri R. Kajla, Counsel for petitioner urged that upper age of 40 years mentioned in advertisement (Annexure-2) is contrary to the Rules, 1988, and as per Rule 6 of Rules, 1988, upper age is 50 years as on first day of January next following the last date fixed for receipt of applications and denial from consideration of his candidature for the post of Sub-Inspector of Police on the pretext that he has crossed 40 years of his age was in violation of Rule 6 of Rules, 1988. 4. Reply to the writ petition has been filed but the only fact stated therein that there was no clubbing of vacancies of previous year and after due determination of vacancy of current year, the same has been advertised and as per Rule 2 (1) (a) of 1988 rules, 121/2 % of posts are reserved for Ex-servicemen in ministerial and subordinate services and the post of Sub-Inspector of Police is in subordinate service included in the Schedule appended to Rules, 1989, the vacancy reserved for ex-servicemen has to be filled as per the scheme of Rules of 1989 as such upper age of 40 years as referred to in the advertisement (Annexure-2) is as per Rule 11(6) of Rules, 1989. 5. I have considered rival contentions of the parties. Firstly I may have resume of relevant Rules. Rule 11 of Rules, 1989 prescribes the age for direct recruitment to subordinate police service. But so far as ex-defence personnel are concerned, Rules, 1988 have been framed for regulating recruitment of ex-servicemen by the Government in exercise of powers conferred by proviso to Article 309 of the Constitution of India. Firstly I may have resume of relevant Rules. Rule 11 of Rules, 1989 prescribes the age for direct recruitment to subordinate police service. But so far as ex-defence personnel are concerned, Rules, 1988 have been framed for regulating recruitment of ex-servicemen by the Government in exercise of powers conferred by proviso to Article 309 of the Constitution of India. R.2 of Rules, 1988 deals with Scope, and 121/2 % of posts as per Rule 2 (1) (a) are reserved for ministerial & subordinate service, and Rule 2 commences with non-obstante clause. Rule 2 reads as under:- “2. Scope: -Notwithstanding the provisions contained in any existing rules regulating the recruitment and promotion of persons in various services of the State or in the rules that may be framed hereinafter, the ex-servicemen shall be eligible for recruitment and appointment to the posts in all the departments of the State Government as specified in Schedule I: Provided that: - .(1) Such appointment shall not exceed - .(a) 121/2 % of the posts in Ministerial and Subordinate Services; and .(b) 15% of the posts in Class IV services to be filled in a year by direct recruitment.” 6. Thus, Rule 2 of Rules, 1988 having non-obstante clause, prevails upon all other Service Rules so far as recruitment and appointment are made in the departments of State Government as specified in Schedule I. Post of Sub-Inspector of Police Department is included at S.No. 1 in Schedule I of Rules, 1988. Being special rules made for ex-servicemen, in my opinion, Scheme of Rules, 1988 would prevail upon general rules of 1989 in present case, while making recruitment in respect of ex-servicemen to the posts as are included in Schedule I appended to Rules, 1988. 7. Under Rule 6 of Rules, 1988, 50 years is the upper age for ex-servicemen for their recruitment in respect of the posts included in Schedule I appended to Rules, 1988. Rule 6 of Rules, 1988 provides - “6. Age.-A candidate must not have attained the age of 50 years on the first day of January next following the last date fixed for receipt of applications; Provided that in the case of holders of Military Cross/Vir Chakra or any other higher distinction, the upper age limited shall be relaxable by two years.” 8. Age.-A candidate must not have attained the age of 50 years on the first day of January next following the last date fixed for receipt of applications; Provided that in the case of holders of Military Cross/Vir Chakra or any other higher distinction, the upper age limited shall be relaxable by two years.” 8. Condition of eligibility incorporated in advertisement have to be in consonance with the scheme of rules in the absence of which the rules will prevail and not the conditions of advertisement, and accordingly condition of eligibility with regard to the age as incorporated in the advertisement is not as per requirement of Rule 6 of the Rules. In my opinion, prescribing 40 years as upper age while issuing advertisement dated 011.1996 (Annexure-2) was in clear violation of Rule 6 of 1988 Rules, and denial of candidature of petitioner from participation in process of selection & recruitment pursuant to advertisement was arbitrary exercise of powers and violative of Articles 14 and 16 of Constitution of India. 9. I have been informed that after issuance of advertisement (Annexure-2), no fresh advertisement has been issued for making appointment to the post of Sub-Inspector of Police under Rules, 1988; inasmuch as selection process pursuant to impugned advertisement has been over long back and persons have been selected & appointed pursuant thereto, those selection cannot now be questioned & examined by this Court as they are not parties to this petition, so petitioner cannot now be permitted to participate in pursuance of advertisement (Annexure-2) for the post of Sub-Inspector of Police. 10. However, I consider it proper in the circumstances of the case of direct the respondents to treat the petitioner to be eligible for the post of Sub-Inspector of Police against ex-servicemen quota, which if advertised in future, and his age shall not come as an impediment while examining his eligibility under the Rules of 1988. 11. With the above observations, the writ petition is disposed of . No order as to costs.