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2012 DIGILAW 1541 (RAJ)

Girdhari Lal Bugaliya v. State of Rajasthan

2012-07-11

GOVIND MATHUR

body2012
Hon'ble MATHUR, J.—By advertisement dated 2.3.2009 the Rajasthan Service Commission, Ajmer invited implications invited applications from eligible candidates to be considered for appointments against 21 posts of Sub-Inspector (Armed Police) and 12 posts of Platoon Commander from among the Ex-service personnel. The recruitment was to be made as per the provisions of the Rajasthan Civil Services (Absorption of Ex-servicemen) Rules, 1988 (hereinafter referred to as "the Rules of 1988"). The petitioner submitted an application in pursuant to the advertisement referred above. As per the scheme of the selection process the petitioner appeared in written test and was declared qualified. He then was called to face physical efficiency test under a communication dated 14.2.2011. The physical test was conducted, however, the petitioner failed to stand in merit pertaining to the physical test. 2. The grievance of the petitioner in this petition for writ is that the process of selection was required to be made by the respondents as per the Rules of 1988 wherein the physical fitness is required to be examined as per Rule 8 and not by any other mode. Rule 8 of the Rules of 1988 provides that a candidate for direct recruitment to the service, must be in a good mental and bodily health and free from any mental and physical defect likely to interfere with the efficient performance of his duties as member of the service and if settled must produce a certificate to that effect from a Medical Authority notified by the Government for the purpose. The petitioner, as per learned counsel, possess requisite physical fitness as per Rule 8 of the Rules of 1988. 3. Reply to the writ petition has been filed by the Rajasthan Public Service Commission as well as by the State of Rajasthan. According to the averments contained in reply to the writ petition preferred by the State of Rajasthan, recruitment to the post of Sub Inspector/Platoon Commander are governed by the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as "the Rules of 1989") and the procedure prescribed therein was adhered while making selections under advertisement dated 2.3.2009. According to the averments contained in reply to the writ petition preferred by the State of Rajasthan, recruitment to the post of Sub Inspector/Platoon Commander are governed by the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as "the Rules of 1989") and the procedure prescribed therein was adhered while making selections under advertisement dated 2.3.2009. The stand of the Rajasthan Public Service Commission is that though under the advertisement dated 2.3.2009 process of selection was initiated as per Rules of 1988, however, the State of Rajasthan vide communication dated 29.1.2010 (Annex.R/2/2) clarified that the procedure prescribed under the Rules of 1989 was to be adhered while considering candidature of the aspirants for recruitment. 4. A rejoinder has been filed on behalf of the petitioner mainly reiterating whatever already urged in petition for writ. 5. Suffice to notice here that this Court while issuing notices to the respondents on 18.3.2011, as an interim measure kept the entire process of selection subject to final decision of this petition for writ. It is also informed to the Court during the course of argument that though the process of selection was conducted for 33 vacancies but due to non-availability of adequate number of candidates several vacancies are yet lying vacant. 6. Heard counsel for the parties. 7. Precisely, the question available for adjudication in this petition for writ is that whether the physical fitness of the Ex-servicemen while facing process of selection initiated under the Rules of 1988 is required to be examined as per Rule 8 of the Rules of 1988 or by the criteria prescribed under other set of Rules i.e. the Rajasthan Police Subordinate Service Rules, 1989, which otherwise regulate recruitment and other service conditions in Rajasthan Police Subordinate Services. 8. The Governor of Rajasthan while exercising powers conferred by proviso to Article 309 of the Constitution of India framed the Rules of 1988. 9. Rule (2) of the Rules of 1988 provides the scope and according to that notwithstanding the provisions contained in any existing rules regulation he 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. 10. Rule 5 of the rules of 1988 provides that the Administrative Departments or the Head of Departments, as the case may be, shall, in respect of the posts specified in Schedule-I determine every year as far as possible in the month of April, the number of vacancies anticipated during the year according to the quota prescribed in Rule 2 and communicate the same to the Secretary, Rajya Sainik Board alongwith the qualifications for direct recruitment of the concerned posts. 11. The maximum age prescribed for recruitment under the Rules of 1988 as per Rule 6 is 50 years on the first day of January next following the last date fixed for receipt of applications. 12. The post of Sub-Inspector and Platoon Commander are the posts enumerated in Schedule-I, thus, recruitment to this post is available under the Rules of 1988. Rule 8 of these Rules, as already mentioned above, prescribes that a candidate for direct recruitment to the service, must be in a good mental and bodily health and free from any mental and physical defect likely to interfere with the efficient performance of his duties as member of the service and if selected must produce a certificate to that effect from a Medical Authority notified by the Government for the purpose. 13. The Rules of 1988 provides several conditions including the physical fitness required, but nowhere mentions qualificational eligibility for the posts enumerated in Schedule-I and rightly so as the every post is required to have a different educational qualification as per nature of the job. 14. The Rules of 1989 too are framed by the Governor of Rajasthan exercising powers under proviso to Article 309 of the Constitution of India to regulate recruitment and other service conditions of Rajasthan Police Subordinate Services. Under the Rules of 1989 the maximum age limit for appointment to the post of Sub-Inspector/Platoon Commander is 23 years on 1st January next following the last day fixed for receipt of the applications. As per sub-rule (2) of Rule 11 of the Rules of 1989 the upper age limit in age of ex-service personnel and reservist shall be 40 years. A conflict, therefore, exists even in the maximum age limit. However, looking to the non-obstante clause available under the Rules of 1988 i.e. Rule 2, the respondents permitted the petitioner, who is of 44 years, to face the process of selection. A conflict, therefore, exists even in the maximum age limit. However, looking to the non-obstante clause available under the Rules of 1988 i.e. Rule 2, the respondents permitted the petitioner, who is of 44 years, to face the process of selection. The process of selection is prescribed under Rule 21 of the Rules of 1989 that includes written test as well as physical efficiency test. As per the Rules of 1989 the physical efficiency test would be vigorous as laid down by the Director General of Police to adjudge suitability of the candidate. It is pertinent to note here that under Rule 8 of the Rules of 1988 a definite criteria is prescribed to ascertain physical fitness, however, as per Rules of 1989 it shall be vigorous as prescribed by the Director General time to time. 15. It is not in dispute that the entire process of selection was pertaining to the ex-service personnel only and that was initiated as per Rules of 1988. The object of the Rules of 1988 is to provide suitable employment to the ex-service personnel as they usually retire from service in early age and even get discharged for several reasons in young or middle age. Looking to the need of their rehabilitation the Governor framed the Rules of 1988. As already stated the maximum age limit under the Rules of 1988 for consideration for appointment is 50 years. The law framing authority considered it appropriate to mention scope of the rules of 1988 by giving prevalence to them vis-à-vis the conditions prescribed under the other service rules. The law framing authority under the Rules of 1988 intentionally made provisions for maximum age limit and for physical fitness, but not for educational qualifications and the experience required, as the every service require independent expertise and skill. The educational qualification thus is to be taken from the other relevant Rules, However, this legal position clearly indicates that the age and physical fitness while making appointments of Ex-servicemen under the Rules of 1988 shall be governed by these rules only and not by any other service rules, but the educational qualification and experience to meet the nature of job shall be settled as per the provisions made in the specific service rules. 16. 16. In the instant case too the respondents while making appointments to the post of Platoon Commander/Sub Inspector (Armed Police), while adopting the educational qualification from the Rules of 1989, should have examined physical fitness of the aspirants as per Rule 8 of the Rules of 1988. 17. The another aspect of the matter is that under the Rules of 1989 recruitment to the post of Sub Inspector/Platoon Commander is essentially from the young boys upto the age of 23 years or in certain cases with relaxation in maximum age limit. The physical fitness of young boys is required to be examined from a different scale than the scale required to be adopted for middle aged persons. Under the Rules of 1988 the maximum age limit given is 50 years and the recruitment is confined to Ex-service personnel. These Ex-service personnel were subjected to vigorous physical fitness while their recruitment and enrollment in defence service. For this reason too moderate physical fitness is prescribed under Rule 8 of the Rules of 1988. If the stand taken by the respondents be accepted then that will be contrary to the object, purpose and thrust of the Rules of 1988 and that shall frustrate the very purpose of enacting special provisions for rehabilitation of the Ex-service personnel. 18. For the reasons given above this petition for writ deserves acceptance. Accordingly, the same is allowed. The respondents are directed to examine physical fitness of the petitioner as per Rule 8 of the Rules of 1988 and even on fulfilling the eligibility otherwise appointment be accorded to him on the post of Sub-Inspector (Armed Police)/Platoon Commander. It is made clear that the directions given above shall be confined to the petitioner only and this will not effect the selections already made. However, seniority of the petitioner from among the selected incumbents, if selected, shall be maintained as per his placement in merit list and he shall also be entitled for notional fixation of pay in the relevant pay scale. No order to costs.