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2011 DIGILAW 201 (RAJ)

Prashand Sharma v. R. R. V. P. N. Ltd.

2011-01-27

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—The short controversy raised in the present writ petition pertains to appointment on the post of Personnel Officer/Assistant Personnel Officer. Therein, petitioners are treated overage. 2. It is stated that since no recruitment on the aforesaid posts has taken place in previous years, petitioners crossed the age limit. In view of the aforesaid and taking note of the Rule 9 requiring year-wise determination of the vacancies, petitioners are entitled for relaxation of age or to be treated within age limit. 3. To support the arguments, reliance has been placed on the judgment of this Court in the case of Dr. Bansilal Jakhar vs. State of Rajasthan and Another reported in 2006(5) WLC (Raj.) 625. It is stated that aforesaid judgment is based on the judgment of the Division Bench of this Court in the case of Prakash Chand and Others vs. State of Rajasthan and Others reported in 1990(2) RLR 1. The judgment of the Hon'ble Supreme Court in the case of Secretary, A.P. Public Service Commission vs. B. Swapna and Others reported in (2005) 4 SCC 154 has also been referred. In the aforesaid cass, similar controversy was decided favourable to the candidates. 4. I have considered submissions of learned counsel and perused the record carefully. 5. As per the advertisement at Annexure-3, the candidate is required to be within the age limit of 21 to 35 years as on 21.12.2010 for the post of Personnel Officer and for the post of Assistant Personnel Officer, 18 to 35 years as on 21.12.2010. Admittedly, petitioners have crossed the age so provided therein. The question now comes that if no recruitment has been taken place in the previous years after determination of year-wise vacancies as per Rule 9, whether petitioners can be considered within the age limit considering inaction of the respondents in making recruitment in the previous years. It is no doubt that controversy aforesaid was taken up and decided by the Division Bench of this Court in the case of Prakash Chand and Others vs. State of Rajasthan and Another (supra). Based on the aforesaid judgment, various other judgments were given subsequently by this Court. The judgment of this Court in the case of Anand Kanwar and Others vs. R.P.S.C. was challenged before the Hon'ble Supreme Court. The Hon'ble Apex Court settled the controversy therein. Based on the aforesaid judgment, various other judgments were given subsequently by this Court. The judgment of this Court in the case of Anand Kanwar and Others vs. R.P.S.C. was challenged before the Hon'ble Supreme Court. The Hon'ble Apex Court settled the controversy therein. The facts of this case are similar to that of Anand Kumar's case (supra). 6. It is no doubt that the Coordinate Bench relied upon the judgment in the case of Prakash Chand while deciding thee case of Dr. Bansilal Jakhar (supra), but therein judgment of the Hon'ble Apex Court in the case of Anand Kanwar (supra) was not brought in the notice of the Court. The relevant paras of Anand Kumar's judgment are quoted thus:- "Anand Kanwar, respondent in the appeal herein, applied for the post of Senior Teacher in response to an advertisement by the Rajasthan Government in the year 1989. She was over-age having crossed the age of 40. She appeared in the preliminary examination conducted by the Rajasthan Public Service Commission (the Commission), but at the time of viva voce test, she was told that being over-aged, she was not eligible to be considered for the post. Her candidature was, thus, cancelled. She challenged the same by way of a writ petition before the Rajasthan High Court. A Division Bench of the High Court allowed the writ petition and directed the Commission to permit her to compete in the selection. It is not disputed that she has been selected in the process and has also been given appointment under the directions of the High Court. This Court while issuing notice in the special leave petition, permitted the respondent to continue subject to the final decision by this Court. It was not disputed before the High Court that prior to 1988, recruitment to the cadre of Assistant Teachers was made only in the year 1983. Recruitment to the said cadre is by way of direct recruitment and also by promotion. During the period 1983-89 promotions were being made to the cadre, but no direct recruitment was made. The only contention raised by the respondent before the High Court was that it was mandatory for the Rajasthan Government to have filled the quota of direct recruits during all those years. During the period 1983-89 promotions were being made to the cadre, but no direct recruitment was made. The only contention raised by the respondent before the High Court was that it was mandatory for the Rajasthan Government to have filled the quota of direct recruits during all those years. It was further contended that had the posts meant for direct recruitment been advertised during the year 1983-89, the respondent could have applied and may have been selected. She contended that at that point of time, she could not be rejected on the ground of over-age. The High Court, accepted the contentions on the following reasoning:- "...The last advertisement was issued in the year 1983 and this advertisement has been issued in the year 1989 that is after a lapse of about six years and the petitioner has completed her age of 40 years in the year 1986. It has been held in this authority that if year-wise vacancies are not determined and if the advertisement are issued to fill up the vacancies of six years by the one advertisement, then the person's candidature cannot be rejected on that account.... The competent authority cannot avoid this responsibility by sheet inaction or omission and failure on the part of the competent authority cannot be used as a basis for denying eligibility to those who are eligible in a particular year but become ineligible on account of absence of determination of the vacancies.... She could have been denied right of a consideration only if there existed no vacancies till the time she has attained the age of 40 years. If vacancies were existing, she had a right of consideration and consequently the petitioner who has been allowed to appear in the interview under the orders of the Court, her result of the interview be declared and if she is found suitable for appointment on the basis of the merit that has been assigned to her by the Public Service Commission, she be afforded appointment as a Senior Teacher, which has now been designated as Lecturer in Secondary/Senior Secondary Section). The result be declared within a period of three weeks from today and if she is entitled to be appointed then appointment be accorded to her within 3 months from today." We are of the view that the High Court fell into patent error bordering on perversity in issuing the mandamus on the reasoning quoted above. It is settled proposition of law that the eligibility of a candidate has to be determined on the basis of the terms and conditions of the advertisement in response to which the candidate applies. There is nothing on the record to show that the State Government was in any manner negligent or at fault in not making the direct recruitment during the period 1983-89. Be that as it may, the High Court was not justified in taking the clock back to the period when unfilled vacancies were existing and holding that since the respondent was eligible on the date when vacancies fell vacant, she continues to be so till the time the vacancies are filled. Due to inaction on the part of the State Government in not filling the posts year-wise, the respondent cannot get a right to participate in the selection despite being over-aged." 7. In the case of Smt. Shashi Kala Dadhich vs. R.P.S.C. and Another - D.B. Civil Special Appeal (Writ) No. 923/2006 decided on 24.1.2008, the Division Bench of this Court considered the judgment in the case of Prakash Chand (supra) and also of Dr. Banshi Lal Jakhar (supra). Para 5 of the said judgment is quoted for ready reference:- "5. The direct recruitment to the posts of Lecturer in Hindi, admittedly, is being made under Rajasthan Educational Service Rules, 1970 (for short, `Rules of 1970'). The counsel for the appellant did not dispute that the Rules of 1970 do not have a provision that the candidates who were eligible in a particular year but were rendered in-eligible in the subsequent years, they were to be treated as eligible to appear in the examination irrespective of age requirement in case no examination was held in the particular year in which they were eligible. We are afraid, for want of any provision in the Rules of 1970, the decision of the Division Bench in the case of Prakash Chand cannot be applied to the present fact situation." 8. We are afraid, for want of any provision in the Rules of 1970, the decision of the Division Bench in the case of Prakash Chand cannot be applied to the present fact situation." 8. In view of aforesaid, the controversy having been settled by the Hon'ble Apex Court, I cannot take a different view than taken by the Hon'ble Apex Court. So far as the judgment in the case of Secretary, A.P. Public Service Commission (supra) is concerned, it is not on the issue of overage for appearance in the selection. Even if, no selection was held in previous years, petitioners cannot be treated within age limit for selection. This is for want of such rule. Considering the issue from all aspects, no case is made out calling for my interference. The writ petition is accordingly dismissed. 9. In view of dismissal of writ petition, stay petition also stands dismissed.