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2018 DIGILAW 346 (GUJ)

DIVYRAJSINH JATUBHA JADEDA v. STATE OF GUJARAT

2018-02-01

N.V.ANJARIA

body2018
JUDGMENT : 1. Heard learned advocate Mr.Jinesh Kapadia with learned advocate Mr.Savan Pandya for the petitioners and learned Government Pleader Ms.Manisha Lavkumar assisted by learned Assistant Government Pleader Mr.Rasesh Rindani on behalf of respondent No.1 – State, as well as learned advocate Mr.Premal Joshi for respondent No.2 – Gujarat Public Service Commission. 2. Both the petitioners pray by filing this petition under Article 226 of the Constitution, is to allow them the relaxation in the age limit in the recruitment to the post of Police Inspector (Unarmed). The advertisement for the same was issued on 17th July, 2017 by Gujarat Public Service Commission. The petitioners pray to set aside Clause 3(4) of the advertisement. 3. Petitioner No.1 as well as petitioner No.2, both came to be appointed for Police Sub Inspector (Armed) on 04th December, 2010. Presently they are posted at Jamnagar and Gandhinagar respectively. Both the petitioners aspired to be appointed on the post of Police Inspector (Unarmed) for which they participated in the process pursuant to the aforementioned advertisement bearing No.38/17-18 dated 17th July, 2017. The claim of the petitioners is that in their capacity as government servant, they are entitled to be accorded the age relaxation. 3.1 According to the petitioners, the advertisement offers the relaxation in the age limit to certain categories including Ex-Army officers, however, no such relaxation has been allowed for the government servants. The petitioners pressed into service sub-rule (5-A) of Rule 8 of Gujarat Civil Service Classification and Recruitment (General) Rules, 1967. It is their submission that they are eligible and entitled for relaxation in the age criteria in the same way as is given to the persons belonging to other categories. 4. Respondent – Gujarat Public Service Commission contended by filing affidavit-in-reply, pointing out inter alia that the State Government has framed Rules in exercise of powers conferred under Section 5 of the Gujarat Police Act, 1951 providing to regulate the recruitment to the post of Police Inspector (Unarmed), Class II in the Gujarat State police service. These Rules are called Police Inspector (Unarmed) Class II Recruitment Rules, 2017 wherein the upper age limit is prescribed, submitted respondent No.2. 4.1 It was further submitted that when there is a conflict between the Rules made in the Proviso to Article 309 of the Constitution and the Rules made by the legislature concerned, the prescription laid down by the appropriate legislature would prevail. 4.1 It was further submitted that when there is a conflict between the Rules made in the Proviso to Article 309 of the Constitution and the Rules made by the legislature concerned, the prescription laid down by the appropriate legislature would prevail. After referring to Article 309 in the affidavit-in-reply, it is further stated that aforementioned Rules of 2017 framed by the State Government would regulate the recruitment to the post in question in the Gujarat State police service. It was highlighted that a specific provision is enacted in the said Rules that a candidate should not be more than 35 years of age. 5. Having taken into account the facts, the controversy and having further considered the submissions, it is evident that the Rules called Police Inspector (Unarmed) Class II Recruitment Rules, 2017 has been framed by the State legislature in exercise of powers conferred by Section 5 of the Gujarat Police Act, 1951. Rule 4 thereof fixes the age criteria and prescribes outer age limit. It provides that to be eligible for appointment by direct selection on the basis of the result of the competitive examination to the post mentioned in Rule 2, candidate shall inter alia not be more than 35 years of age. Under Rule 10 of these Rules, it is provided that where in respect of any matter regarding service conditions to the post of Police Inspector (Unarmed) Class II, for which a specific provision is not made in the Act or in the Rules, certain Rules mentioned there below would apply mutatis mutandis. Different Rules which are made applicable in such a situation where specific provision is not enacted, include the Gujarat Civil Service Classification and Recruitment (General) Rules, 1967. 5.1 There is no gainsaying that the Police Inspector (Unarmed) Class II Recruitment Rules, 2017 are in the nature of specially enacted Rules under the Gujarat Police Act by the State legislature. They specifically deal with the recruitment, qualification and the eligibility conditions to the post in question. They inter alia lay down the maximum age of 35 years to be the outer age limit for the candidate to be eligible to the post. Once there is a specific provision, what is stated under Rule 10 of the Rules is not come into play and resultantly, Gujarat Civil Service Classification and Recruitment (General) Rules, 1967 cannot be made applicable. Once there is a specific provision, what is stated under Rule 10 of the Rules is not come into play and resultantly, Gujarat Civil Service Classification and Recruitment (General) Rules, 1967 cannot be made applicable. The age limit or age relaxation which may have been mentioned in the general Rules of 1967 have to pave way for the specific provisions made in the 2017 special Rules in respect of the age limit criteria. When special Rules dealing with the recruitment to the post in question are enacted and hold the field, the general classification rules could not override and would not be applied. Nor it could be claimed that provision in general rule be applied in disregard to the special rule. 5.2 Even if the case of the petitioners is examined in light of the Gujarat Civil Service Classification and Recruitment (General) Rules, 1967, there would be no headway for the petitioners. Rule 8 of the said Rules of 1967 deals with the condition as to the prescribed qualification. Rule 8(2) says that where there is a provision about qualification as to the age limit, the appointing authority may relax the age limit in favour of the reserved category candidates only to the extent indicated. 5.3 Sub-rule (5-A) and Rule 8 which were emphasised by the petitioners, provides in its clause 91), the category based on the experience criteria for which the age would be relaxable for a maximum period of five years or to the number of years which the candidate had put in service in government, whichever is less. Sub-clause (2) says that age relaxation shall be admissible to such government servants who are working in the post which are in the similar line etc. The Proviso says that the post in the similar lines means such next lower post from which an employee can be promoted to the post so advertised. 5.4 The above said relaxation, it is provided that, is in addition to the age relaxation given to the reserved category. It is well settled that the relaxation in the eligibility criteria cannot be asked for by way of mandate. It is more in the nature of privilege than a right enforceable. 6. 5.4 The above said relaxation, it is provided that, is in addition to the age relaxation given to the reserved category. It is well settled that the relaxation in the eligibility criteria cannot be asked for by way of mandate. It is more in the nature of privilege than a right enforceable. 6. Lastly, in any view, even if the Gujarat Civil Services Classification and Recruitment (General) Rules, 2017 are held to be applicable for the sake of argument, even in such eventuality, petitioners would not be entitled to for the age relaxation for the reason that the Proviso to Rule 8(5-A) refers to the post in the same line. It says to make it clear that the post in same line means such next lower post from which an employee can be promoted to the post advertised. In the present case, the petitioners are working as Police Sub Inspector (Armed), whereas advertisement is issued for the post of Police Inspector (Unarmed). Therefore, applicability of Rule 8(5-A) is completely ruled out in case of the petitioners. 7. From no standpoint the petitioners' case holds good on merit. The prayers cannot be granted. The petition is liable to be dismissed and stands hereby dismissed. Notice is discharged. Interim orders stand vacated.