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Rajasthan High Court · body

2010 DIGILAW 1012 (RAJ)

Deep Singh v. R. S. R. T. C.

2010-05-11

VINEET KOTHARI

body2010
JUDGMENT Hon'ble KOTHARI, J.-By these petitions, the petitioners, who applied for the post of Conductor against 472 vacancies notified by the respondent Rajasthan State Road Transport Corporation (for short RSRTC) have approached this Court mainly raising the following two grievances with regard to conditions contained in the advertisement for the aforesaid vacancies; (i) that the maximum age prescribed in clause (6) of the said advertisement No. 219/10 by which the applications were sought to be filed on or before 20.4.2010, as per cut off date 1.1.20 10 should be 33 years with a relaxation of 5 years in the cases of SC/ST, Ex.-Military Servicemen and two years for other backward classes should be further relaxed for the petitioners as no such selection was made for last 6 years & vacancies were not determined. The minimum age was also prescribed to be 18 years for the post of conductors and Artisan Gr. II and Gr. III. However, there is no dispute about the minimum age in these writ petition; (ii) the petitioners have contended that the condition No. 2(iii) relating to eligibility criteria for the post of conductors & requiring them to necessarily have and possess the driving license to drive heavy motor vehicles is illegal. 2. The petitioners have, therefore, prayed that the respondent Corporation be directed to consider the candidature of the petitioners for appointment on the post of conductors after giving them age relaxation and they may be treated within age limit and the respondents be further directed to consider the candidature of petitioners for appointment on the post of conductors after relaxing the condition of having driving license for heavy motor vehicles. 3. By ex-parte interim relief granted in these matters the coordinate bench of this Court directed the respondents to accept the forms of petitioners provisionally for the purpose of process of selection for the post of conductors. The respondent Corporation has accordingly provisionally accepted the application forms of petitioners, however, selection process is yet to commence and finalised. 4. The learned counsel for the petitioners drew the attention of the Court towards the Rajasthan State Road Transport Corporation Employees Service regulations, 1965 (for short' the Regulations'), particularly Regulations 9, 108 and 110. which are reproduced hereunder for ready reference- "9(a) - A person whose age exceeds 33 years may not ordinarily be admitted into permanent service of the Corporation. The learned counsel for the petitioners drew the attention of the Court towards the Rajasthan State Road Transport Corporation Employees Service regulations, 1965 (for short' the Regulations'), particularly Regulations 9, 108 and 110. which are reproduced hereunder for ready reference- "9(a) - A person whose age exceeds 33 years may not ordinarily be admitted into permanent service of the Corporation. Competent Authority may, however, relax the age of entry in individual cases or in the case of specified posts by special or general orders. (b) No person who is below 18 years shall be appointed to any post in the Corporation." 108. Appointing authorities shall determine from time to time the number of vacancies in each class of superior service enumerated in Schedule I, anticipated during a particular period or recruitment and the number of person likely to be recruited by each method. 110. A candidate for direct recruitment to any cadre must have attained the age prescribed in Regulation 9 on the first day of January of the year in which appointment is made; Provided: (i) that the maximum age limit may be relaxed by the competent authority in special cases. (ii) that if a candidate is already serving in connection with affairs of the Corporation, the upper age limit be relaxed to 40 years." 5. Learned counsel for the petitioners on the strength of these Regulations and certain case laws which are enlisted below contended that in the absence of respondent Corporation having determined vacancies in the cadre of conductor year wise or even within a reasonable time gap, some of the petitioners have become overage and, therefore, the age relaxation should be granted to them and Regulation 9 permits such age relaxation in individual case or in the case of specified posts by special or general orders. Prakash Chand etc. vs. State of Raj. & Am. 1990. (2)RLR 1 = RLW 1990(2) Raj. 582 & Madan Mohan Sharma & Am. vs. State of Rajasthan & Ors. - AIR 2008 SC 1657 = 2008(4) RLW 3525 (SC). 6. On the other hand, Mr. P.K. Lohra, learned counsel appearing for the respondent Corporation urged that these conditions stipulated in the advertisement have since been given ex post facto approval of the Board of Directors of respondent Corporation vide Resolution No. 15/2010 dt. 18.2.2010, which was approved by the State Govt. 6. On the other hand, Mr. P.K. Lohra, learned counsel appearing for the respondent Corporation urged that these conditions stipulated in the advertisement have since been given ex post facto approval of the Board of Directors of respondent Corporation vide Resolution No. 15/2010 dt. 18.2.2010, which was approved by the State Govt. on 22.4.2010 and accordingly the office order was issued on 23.4.2010, a copy of which is placed on record. He also drew the attention of the Court towards the amendment effected in these Regulations vide office order dated 24.6.97 by which the upper age limit was increased to 33 years for the post of conductors also. In that amendment of 1997, for the post of conductors, besides raising the educational qualification from 8th Pass to Secondary pass, a candidate is also required to hold licence and badge for the said post of conductor. He submitted that the additional condition of having a driving licence to drive heavy vehicle cannot be said to be arbitrary because of the requirement of the job as there may be certain contingency and emergency in which conductors accompanying the driver of the bus plied and operated by the respondent Corporation, the duties may become interchangeable and, therefore, such requirement cannot be said be unthoughtful much less arbitrary as to be hit by Article 14 of the Constitution of India as contended by learned counsel for the petitioners. 7. On the issue of age relaxation, learned counsel for the respondent Corporation relied upon the following judgments in support of his contention:- (i) 1997 SCC (L & S) 1576- Dr. Ami Lal Bhat vs. State of Rajasthan & Ors. (ij) 1994 SCC (L & S) 723 - J & K Public Service Commission & Ors. vs. Dr. Narinder Mohan & Ors. (iii) 1991 (1) RLR 727 = RLW 1991(1) Raj. 410 - Raj. Council of Diploma Engineers vs. State of Raj. & Am. (iv) 1983 RLR 473 = 1983 RLW 138 - RPSC & Ors. vs. Dr. (Miss) Damyanti Dadhich & Ors. 8. I have heard learned counsels at length and perused the Regulations, 10 judgments cited at the bar and the advertisement in question. 9. 410 - Raj. Council of Diploma Engineers vs. State of Raj. & Am. (iv) 1983 RLR 473 = 1983 RLW 138 - RPSC & Ors. vs. Dr. (Miss) Damyanti Dadhich & Ors. 8. I have heard learned counsels at length and perused the Regulations, 10 judgments cited at the bar and the advertisement in question. 9. As far as condition No. (iii) of the Eligibility for the post of Conductor namely requirement to having driving licence to drive heavy motor vehicle is concerned, this Court does not find any force in the submissions of learned counsel for the petitioners. While disposing of similar writ petition namely; SHCWP No. 4167/10 (Sohan Lal vs. RSRTC & Ors.) on 28.4.2010, this Court held that, It is the contingency of the job which may require such a licence even from the conductor, like the driver getting injured while driving and second man viz. the conductor may be required to drive the vehicle in such an emergency and, therefore, the stipulation to that effect in the advertisement itself cannot be said to be illegal There may be more contingencies than this as stated in the aforesaid order and if in the best wisdom of the respondent Corporation, who can envisage the requirements of job being the employer, in a more comprehensive manner, this Court does not find itself in agreement with the contention of learned counsel for the petitioners that such a condition is per se arbitrary or illegal, therefore, as far as this contention is concerned, the same deserves to fail and is hereby rejected. 10. As far as second question of age relaxation is concerned, learned counsel for the petitioners drew the attention of the Court towards Regulation 110 sub clause (ii) of Proviso to said Regulation 110, which stipulates that if a candidate is already serving in connection with affairs of the Corporation, the upper age limit be relaxed to 40 years. Some of the petitioners before this Court in this batch of writ petitions are these types of candidates who are serving the respondent Corporation in different capacities, either as Artisan Gr. II or Gr.1II or even in other capacity like mechanic etc. The advertisement in question does not specify anything about this relaxation up to the age of 40 years for such in-house or in-service candidates. II or Gr.1II or even in other capacity like mechanic etc. The advertisement in question does not specify anything about this relaxation up to the age of 40 years for such in-house or in-service candidates. Relaxation for SC/ST and OBC has been given invoking the powers under Regulation 9, which empowers the authority concerned to relax the age limit of 33 years for such other cases. However, since the said clause (ii) of the Proviso to Regulation 110 specifically says that the upper age limit in the cases of in-service or in-house candidates shall be relaxed up to 40 years, apparently, there is no reason to skip this part of the Regulations in the advertisement in question before this Court. In the opinion of this Court, such a relaxation, which is prescribed in the Regulations itself, ipso facto should be read in the advertisement and it is not in dispute from the side of respondents that these Regulations would govern the process of present selection also. Therefore, the petitioners, who fail within the ambit and scope & four corners of clause (ii) of proviso to Regulation 110, in their cases the age relaxation upto 40 years as on the cut off date 1.1.2010 should be deemed to have been granted by the respondent Corporation itself. However, learned counsel for the petitioner Mr. Rakash Arora also contended that in writ petition No. 4044/10 the petitioner even if he over 40 years of age but since he falls in the reserve category SC/ST, the additional relaxation over 40 years should be granted because he is in-house candidate, who belong to a particular reserved class of persons. In the opinion of this Court, this contention cannot be sustained. The age limit of 40 years as envisaged in Clause (ii) of the proviso of Regulation 110 is the maximum age. relaxation which the respondent Corporation has given in the Regulations and the power to relax age under Regulation 9 in other cases by the respondent Corporation for SC/ST and ABC from 33 by 5 years and 2 years respectively, further cannot be added over and above the age relaxation granted upto 15 years. Therefore, this contention of learned counsel for the petitioner that maximum age limit of 40 years under clause (ii) of the proviso to the Regulation 110 should further be increased is hereby rejected. . 11. Therefore, this contention of learned counsel for the petitioner that maximum age limit of 40 years under clause (ii) of the proviso to the Regulation 110 should further be increased is hereby rejected. . 11. As far as the further age relaxation sought by the petitioners on the ground that such selection for the post of Conductor was not held by the respondent Corporation for last 5-6 years and, therefore? in the process of these since the vacancies were not determined on year to year basis or within reasonable period, which could be 2-3 years as per the learned counsel for the petitioners and, therefore, such relaxation should be granted, this contention of learned counsel for the petitioners also cannot prevail. 12. It is appropriate here to remind oneself of the ratio of decision of Apex Court in the case of Dr. Ami Lal Bhat's (supra) and to quote from para No.5 and 6 of the said judgment. "Fixing of a cut-off date for determining the maximum of minimum age prescribed for a post is in the discretion of the rule making authority or the employer. One must accept that such a cut-off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some on the wrong side. That cannot make the cut-off date per se arbitrary unless the cut-off date is so wide off the mark as to make it wholly unreasonable. Fixing an independent cutoff date, far from being arbitrary, makes for certainty in determining the maximum age. Unless the date is grossly unreasonable, the court would be reluctant to strike down such a cut-off date." 13. Similarly, the Apex Court in the case of J & K Public Service Commission's case (supra) has observed in para No. 12 that it is difficult to accept the contention of petitioners to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates found eligible for the respective years and it would be fraught with grave consequences. To dilate further, para 12 is reproduced hereunder: "It is difficult to accept the contention of Shri Rao to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates found eligible for respective years. It would be fraught with grave consequences. It is settled law that the Government need not immediately notify vacancies as soon as they arose. It is open, as early as possible, to inform the vacancies existing or anticipated to the PSC for recruitment and that every eligible person is entitled to apply for and to be considered of his claim for recruitment provided he satisfies the prescribed requisite qualifications. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for recruitment offending Articles 14 and 16." 14. As far as comparison of Regulation 9 of other State Subordinate Services with Regulation 108 of the Regulations applicable in the present case is concerned, it further waters down the contention of learned counsel for the petitioners. Regulation 108 does not even specify the time period as to when the respondent Corporation is supposed to determine the vacancies. The words used in Regulation 108 are that 'the competent authority shall determine from time to time the number of vacancies in each class of superior service enumerated in Schedule I, anticipated during a particular period or recruitment and the number of person likely to be recruited by each method.' The words 'from time to time' is incapable of definition in precise mathematical terms nor it has been so defined and, therefore naturally, for interpretation of these kind of words the reasonable period is to be comprehended in the context of these words. 15. The judgment of Division Bench relied upon by the learned counsel in the case of Prakash Chand's case (supra) to the effect that if the vacancies for direct recruitment are not filed in for a particular year the candidates who are within the age limit with reference to the vacancies of that particular year must be treated as eligible even if selection is held subsequently, with great respects, cannot hold the field in the light of subsequent pronouncements of the Apex Court and even the Division Bench of this Court relied upon by the learned counsel for the respondent. Moreover, Regulation 9 dealt with by Division Bench in Prakash Chand's case requiring year wise determination of vacancies is differently worded than Regulation 108 in present Regulations of 1965. Therefore, said Division Bench decision is of no avail to the petitioners. 16. In view of the flexibility of time period contained in the Regulation 108, it is not possible to hold that the issue of age relaxation should also go with the issue of determination of vacancies. The two cannot be tied down inextricably. Even if the vacancies of Conductors in the present case are sought to be filled up after a gap of 5-6 years, in the opinion of this Court, the same cannot be said to be per se unreasonable. It is for the respondent Corporation only to determine the vacancies looking to their own requirements and the Regulation 108 permits them to determine the same from time to time. The cut-off date is prescribed in the advertisement & as observed by the Apex Court, some people are bound to fall on the right side of the cut-off date and some on the wrong side and they cannot claim, in the opinion of this Court, any further age relaxation as a matter of right on this count. The age relaxation in accordance with Regulations 1965 has already been prescribed by the respondent Corporation in the advertisement & as far as clause (ii) of the proviso to Regulation 110 is concerned, as stated above. which prescribes relaxation in age upto 40 years for in-house candidates will be read into this advertisement also. 17. As far as decision of Hon'ble Apex Court in the case of Madan Mohan Sharma's case (supra) is concerned, the said judgment is of no avail to the petitioners. It was held in para 4 of the said judgment that once the advertisement for appointment is issued based on Govt. circular, change in eligibility criteria during selection process is not permissible and the selection process should continue as per the advertisement. Going strictly by the ratio of the said judgment, even the relaxation upto 40 years for in-house candidates cannot be read into the advertisement and the selection process should go by the conditions as stipulated in the advertisement. circular, change in eligibility criteria during selection process is not permissible and the selection process should continue as per the advertisement. Going strictly by the ratio of the said judgment, even the relaxation upto 40 years for in-house candidates cannot be read into the advertisement and the selection process should go by the conditions as stipulated in the advertisement. However, since it was fairly not disputed by the respondent that the relaxation in age given in Regulation 110 upto 40 years for in-house candidates can be applied to the present selection process also, that position is not disturbed. 18. Consequently, these writ petitions are disposed of with 'the observations made above. No order as to costs.