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2015 DIGILAW 923 (RAJ)

Gynesh Shringi v. State of Rajasthan

2015-04-24

SUNIL AMBWANI, VEERENDR SINGH SIRADHANA

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JUDGMENT 1. We have heard learned counsel appearing for the appellant. 2. This Special Appeal arises out of the judgment of learned Single Judge dated 29.05.2014, by which he has dismissed the writ petition seeking relaxation in age for recruitment on the post of Junior Engineer in the Public Health & Engineering Department in the State of Rajasthan, vide advertisement dated 17.05.2008, issued by the Rajasthan Public Service Commission. 3. The petitioner was overage by 2 years & 16 days as on 01.01.2009, which was the last date given in the advertisement for making applications. He had exceeded the age of 37 years, whereas the age prescribed for eligibility was minimum 18 years and maximum 37 years as on 01.01.2009. 4. A notification dated 23.09.2008 was issued by the State Government notifying the Rajasthan Various Service (Fifth Amendment) Rules, 2008, by which the amendments were made in both the Service Rules namely, Rajasthan State & Subordinate Services (Direct Recruitment by Combined Competitive Examination) Rules, 1999 (in proviso (8) to Rule 13) and the Rajasthan State Engineering Services (Direct Recruitment by Combined Competitive Examination) Rules, 1991 (proviso (7) to Rule 12) as mentioned in the column No.2 of the Schedule, which provided as follows: “2. Amendment:- (i) The existing proviso to rule as mentioned in Column No.3 against each of the Service Rules as mentioned in Column No.2 of the Schedule appended herewith, shall be substituted by the following, namely:-“If a candidate would have been entitled in respect of his/her age for direct recruitment in any year in which no such recruitment was held he/she shall be deemed to be eligbile in the next following recruitment, if he/she is not overage by more than 3 years.” (ii) The existing rule as mentioned in Column No.4 against each of the Service Rules as mentioned in Column No.2 of Schedule appended herewith shall be substituted by the following, namely:-“Frequency of Examination.- The competitive examination for recruitment to the posts specified in the Schedule shall be held at least once a year unless the Government decides that a competitive examination for any of the these posts shall not be held in any particular year.” 5. Learned Single Judge held that since the Rules were amended vide notification dated 23.09.2008, it had effect of giving the age relaxation of a maximum period of 3 years. Learned Single Judge held that since the Rules were amended vide notification dated 23.09.2008, it had effect of giving the age relaxation of a maximum period of 3 years. No recruitment was held in the past continuously for more than 3 years, and that such relaxation was to be applied with effect from the date of the notification dated 23.09.2008. He found that in the present case, the last date for receipt of the application form in pursuance to the advertisement, was 30.06.2008, therefore, the aforesaid amendment could not be applied retrospectively to give age relaxation to the petitioner. 6. Learned Single Judge relied on the judgment of the Supreme Court in State of Orissa & Ors. vs. Prasana Kumar Sahoo [ (2007) 15 SCC 129 ], in which it was held that any relaxation, in respect of age, must receive strict compliance of other conditions specified in the Rules. 7. It is submitted by learned counsel appearing for the appellant that the entire object of giving age relaxation was defeated by applying the Rule retrospectively, as in the present case, the recruitment of Junior Engineer was not made by the department for last several years, and that the advertisement was issued after a period of time, in which the appellant has become overage. He was overage by 2 years & 16 days as on 01.01.2009, and thus even if the amendment notification came into effect on 23.09.2008 and it had no retrospective operation, the object of the amendment was to give benefit, which was applicable to those who had not become overage by 3 years, and no such recruitment was held continuously for more than 3 years. 8. Learned counsel appearing for the appellant further submits that the judgment of the Division Bench of this Court in Sheikh Mohd. Afzal & Anr. vs. the State of Rajasthan & Anr. [2008(1) WLC (Raj.) 186], had no application to the facts and the legal question raised in the present case. 9. We do not find any error of law in the opinion expressed by learned Single Judge that any relaxation, in respect of age, has to be construed strictly and subject to other conditions specified in the Rules. [2008(1) WLC (Raj.) 186], had no application to the facts and the legal question raised in the present case. 9. We do not find any error of law in the opinion expressed by learned Single Judge that any relaxation, in respect of age, has to be construed strictly and subject to other conditions specified in the Rules. There was no provision in the Rules to hold the recruitment every year, and thus, no relaxation could be given, even if the recruitment was not held at any time prior to the date when the appellant has become overage. The Rule for frequency of examination, as well as providing for relaxation in age, deeming the person to be eligible in the recruitment was promulgated after the appellant was overage by 2 years & 16 days as on 01.01.2009. The Rajasthan Various Service (Amendment) Rules, 2008 came into effect from 23.09.2008. The amended Rule, unless it had a retrospective intendment, was not apply to the persons, who had become overage prior to the date of issuance of advertisement, even if the maximum age had to be calculated with effect from the date, which falls beyond the date of amendment of the Rules. 10. In the present case, the appellant was overage on the date the application by 2 years & 16 days. The relaxation in age for 3 years, could be given only to those candidates, who were to apply for relaxation in age, for which the advertisement was issued after 23.09.2008, provided he fulfills every condition. 11. We do not find any such specific provision or necessary intendment, either in the Service Rules, or in the Rajasthan Various Service (Fifth Amendment) Rules, 2008, providing for age relaxation to even those candidates, who had become overage prior to the issuance of the advertisement issued, before 23.09.2008. 12. Learned Single Judge has rightly relied on the judgment in State of Orissa & Ors. vs. Prasana Kumar Sahoo (supra), in which it was held that the relaxation in respect of age, must receive strict construction of the conditions specified in the Rules. 13. The Special Appeal is dismissed.