Allahabad High Court
Ritesh Kumar Srivastava vs State Of U.P Thru. Prin. Secy. ... on 21 July, 2023
Bench: Devendra Kumar Upadhyaya, Om Prakash Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:48069-DB
Court No. - 1
Case :- SPECIAL APPEAL No. - 366 of 2023
Appellant :- Ritesh Kumar Srivastava
Respondent :- State Of U.P Thru. Prin. Secy. Deptt. Of Appointment Personnel Lko. And 2 Others
Counsel for Appellant :- Vijay Pratap Singh
Counsel for Respondent :- C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya)
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Om Prakash Shukla,J.
(1) Heard Sri Vijay Pratap Singh, learned Counsel representing the appellant, learned State Counsel representing the State-authorities and Sri R. K. Upadhyaya, learned Counsel representing the U.P. State Public Service Commission.
(2) This intra-Court appeal has been filed against an interlocutory order dated 13.07.2023 passed in Writ-A No. 4834 of 2023 whereby the prayer for interim relief has been rejected.
(3) Ordinarily against such an order, an intra-Court appeal under Chapter VIII Rule 5 of the Rules of the Court will not be maintainable, however, in view of the judgment of Hon'ble Supreme Court in the case of Devraj v. State of Maharashtra [2004 (4) SCC 697], if refusal to grant of interim relief tantamounts to dismissal of the petition itself, in such an eventuality the intra-Court appeal would be maintainable.
(4) Here the case of the appellant-petitioner put-forth before the learned Single Judge was that if age of the appellant-petitioner has to be reckoned on 01.07.2023, he will be 40 years of age, as such he shall be eligible to apply for recruitment, for the post of Dental Surgeon, which is being held by the Public Service Commission. It is not in dispute that the date, as per the advertisement, on which the age of 40 years is to be reckoned is 01.07.2023 and the date of birth of the appellant-petitioner is 01.07.1983. Thus if his age is reckoned on 01.07.2023 he shall be 40 years and one day old.
(5) The appellant-petitioner while instituting the writ petition had made a prayer for grant of interim relief to the effect that he may be permitted to participate in the selection provisionally. Once such a prayer is refused nothing remains to be adjudicated in the writ petition itself and hence having regard to the peculiar facts and circumstances of this case, we entertain this Special Appeal.
(6) The State of Uttar Pradesh has framed Rules under Article 309 of the Constitution of India, known as The Uttar Pradesh Public Services (Relaxation of the age-limits for recruitment) Rules, 1992 according to which the State Government is empowered to provide relaxation in the maximum age limit to a candidate or a class of candidates. Rule 3 of the said Rules is extracted here-in-below:-
"3. Notwithstanding anything to the contrary in any rule-regulating the maximum age of recruitment to a service or post in connection with the affairs of the state, relaxation in the maximum age-limit may be granted by the Governor in favour of a candidate or a class of candidates.
Provided that in the case in which recruitment is made through the Commission, that body shall be consulted before the relaxation is granted."
(7) Having regard to the fact that the appellant-petitioner is being over-age by a day and further that for past many years recruitment to the post of Dental Surgeon has not been held it may be a case where the appellant-petitioner may seek relaxation of one day in the maximum age limit.
(8) Thus, in view of the facts as aforesaid and considering the peculiarity of the situation, we dispose of this Special Appeal with liberty to the appellant-petitioner to make an appropriate application to the State Government in the concerned department within three days from today praying for relaxation in maximum age in terms of the provisions contained in Rule 3 of the Rules, 1992. In case any such application is made the same shall be considered and decided positively within two weeks from the date such an application is received by the State Government. In case the appellant-petitioner is granted age relaxation he shall be permitted to participate in the selection for the post in question which is being conducted by the U.P. Public Service Commission provided the appellant-petitioner otherwise fulfills other requisite norms.
(9) Learned counsel representing the U.P. Public Service Commission Sri R. K. Upadhyaya, on the basis of instructions, received has stated that in case the age relaxation is granted to the appellant-petitioner by the State Government, the Commission shall make sure that he is able to submit his application for recruitment to the post in question by all possible means.
(10) Having regard to the terms in which this Special Appeal is being disposed of, we hereby dispose of Writ-A No. 4834 of 2023 as well.
(11) Office to keep a copy of this order on paper book of Writ-A No. 4834 of 2023.
(12) Office is also directed to provide a certified copy of this order to the learned counsel for the parties on payment of usual charges within 24 hours.
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Order Date :- 21.7.2023
akhilesh/
