Raju Dhondiram Akrupe vs State Of Maha. Thr. Prin. ...
2023 Latest Caselaw 4862 Bom

2023:BHC-AS:14471-DB


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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                          CIVIL APPELLATE JURISDICTION

                                         WRIT PETITION NO.6371 OF 2023

                 RAJU DHONDIRAM AKRUPE                                )...PETITIONER

                          V/s.

                 THE STATE OF MAHARASHTRA & ORS.                      )...RESPONDENTS

                 Mr.Vijay Nagrani, Advocate for the Petitioner.
                 Mr.P.G.Sawant, AGP for the Respondent - State.

                                           CORAM    :    ABHAY AHUJA AND
                                                         M.M.SATHAYE, JJ.

                                           DATE     :    26 MAY 2023
                                                         (VACATION COURT)

                 JUDGMENT : (PER ABHAY AHUJA, J.)

1. Rule. Rule made returnable forthwith. Heard finally by

consent of Counsel for the parties.

2. By this Petition, Petitioner is seeking to quash and set aside

interim order dated 10th May 2023 passed by the Maharashtra

Administrative Tribunal (MAT) in Original Application No.345 of

2023 rejecting Petitioner's interim application in the said Original

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Application for age relaxation to participate in the selection

process by nomination to a higher post by appearing in the

examination which is going to be held on 4th June 2023.

3. Petitioner is working as a Food Safety Officer and his age

today, statedly, is 39 years and in order to appear for the

Combined Civil Services Preliminary Examination 2023

conducted by Respondent no.4 - Maharashtra Public Service

Commission (MPSC) to be held on 4 th June 2023, he is seeking

age relaxation on the basis of Bombay Civil Services, Classification

and Recruitment Rules, 1939 (the "1939 Rules"). Petitioner has

also placed reliance on the Government Circular dated 1st

November 2003 and the decision of this Court in the case of Anil

Motilal Nimbhure vs. State of Maharashtra and Others 1 to submit

that the said 1939 Rules though framed prior to independence

and before framing of the Constitution of India and despite the

provision of Article 395 of the Constitution, are holding the field.

 1    Writ Petition No.6179 of 2007, decided on 7th January 2008

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4. It is Mr.Nagrani's case that, Petitioner being a government

servant, is entitled to upper age relaxation pursuant to the 1939

Rules, and therefore, even though he has crossed the age limit for

general category of 38 years, being 39 years of age, in view of the

fact that the said Rules are still holding the field, he is entitled to

appear for the examination, which is going to be held on 4 th June

2023. Mr.Nagrani has relied upon Rule 7 of the 1939 Rules with

respect to qualification in respect of age and education of the

candidates for appointment in the Government Service and would

submit that Note 3B thereunder carves out an exception in the

case of a Government servant, to mean that there shall not be an

upper age limit for the Government servant. The said Rule 7 and

Note 3B are usefully quoted as under :

"7. Government shall prescribe the qualifications in respect of age and education which shall be required to be possessed by candidate for admission to the Provincial and Subordinate service. The qualifications so far prescribed are stated in Appendices C and D.

Note 3B. The concession granted under these rules to Government Servants that the age limit prescribed therein shall not be applicable to them shall be available only to the following classes of Government servants, namely :-

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                  (1)      Permanent Government servants

(2) Temporary Government servants whether officiating in (I) substantive, (ii) deputation or (iii) leave vacancies, if they are in continuous service for not less than six months on the date of their applications.

(Government Notification, Political and Services Department, No.1586/34, dated the 1 st December 1943)."

5. Learned Counsel would submit that based on these 1939

Rules, the State Government had issued a Circular dated 1 st

November 2003 by which it was decided not to grant complete

age relaxation to the government servant for selection on the basis

of nomination and took decision to grant age relaxation to the

extent of upper age limit including the number of years of

experience or relaxation up to the age of 45/50 years on the basis

of requirement and specialization of posts. He would submit that

the said Circular is in breach of the said 1939 Rules as the said

Rules of 1939 contemplate complete age relaxation in favour of

the government servant, the said 1939 Rules having statutory

force.

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6. The Petitioner had therefore filed an Original Application

before the MAT seeking complete age relaxation for selection on

the basis of nomination for in-service candidates based on the

Rules of 1939 read with Government Circular dated 1 st November

2003 and the decision of this Court in the case of Anil Motilal

Nimbhure vs. State of Maharashtra and Others (supra) and also

for a declaration that not incorporating the upper age limit in the

advertisement to in-service candidates is illegal and

unconstitutional and also for a further direction to Respondent

no.1 - State to adopt and amend the Recruitment Rules dated 8 th

June 2022 on the basis of Notification dated 16 th January 2003

and a direction to the Respondent no.3-MPSC to incorporate the

amendment as a qualification under Clause (3) of the

Corrigendum Advertisement dated 17th March 2023; and on this

basis Petitioner should not be held disqualified on the ground of

age bar and he be allowed to participate in the selection process

for the post of State Services, Group-A and B pursuant to the

advertisement dated 24th February 2023. The applicant also made

an application for interim relief to be allowed to appear for the

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examination to be conducted on 4th June 2023 which was heard

on 10th May 2023 and came to be rejected by the order impugned

in the Petition. The relevant paragraphs 5 to 8 of the said interim

decision are usefully quoted as under :

"5. Considered the submissions of both the learned Counsel and the learned C.P.O. Age relaxation is to be given in the Rules. The Government can take a policy decision to grant age relaxation to the persons in Government service or not to provide the same. The Rules of 1939 does not say anything about selection by nomination because at the relevant time the mode of selection by nomination was not introduced. The avenue of appointment by nomination was made available in Government service Post Independence. Thus, it is necessary to consider what is the policy adopted by the State Government, as on today through its legislation of the Recruitment Rules. It is not necessary to look into the Circular dated 1.11.2003. By the Rules of 1986 the State of Maharashtra with a view to regulate upper age limit for recruitment by nomination in Class-I, Class-II, Class-III and Class-IV posts in Maharashtra Civil Services framed the rules. In the said Rules, there is no mention of providing age relaxation to the Government servants. Moreover, the Rules of 1939, even after considering Rule 7, clearly states that no relaxation is to be given in age and relaxation of age is an exceptional case for which reasons in each case are to be separately recorded.

Thus, the submissions of the learned C.P.O. that the Government has provided age relaxation to the persons in Government service for some post in some cadre, but such provisions is made in the Recruitment Rules of those respective cadres are correct and accepted. The Recruitment Rules dated 13.9.2013 and the Recruitment Rules dated 8.6.2022, which are framed by the State of

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Maharashtra for the recruitment to the post of Assistant Commissioner, (Food)-cum-Designated Officer, (Group A) are very clear. It is rightly pointed out by the learned C.P.O. that Rule 4 in both the Rules state about the appointment to the post of Assistant Commissioner, (Food)-cum-Designated Officer, (Group A) by nomination. In the earlier Recruitment Rules dated 13.9.2013, the age relaxation up to 50 years were provided in the case of the candidates already in Government service and in the later Recruitment Rules of 8.6.2022, in Rule 4, in case of appointment by nomination to the same post, age limit provided is 38 years in case of general candidates and 43 years in case of persons belonging to reserved category. The provision which was made earlier of age relaxation up to age of 50 years to Government servants is absent in the Recruitment Rules dated 8.6.2022. The Recruitment Rules dated 8.6.2022 is framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India and in supersession of all the existing rules, orders or instructions issued earlier. Thus, there is no doubt that for the purpose of recruitment to the post of Assistant Commissioner, (Food)-cum-Designated Officer, (Group A), as on today only the Rules of 2022 are to be looked into. When no age relaxation is provided to the candidates in service which was provided earlier, it is undoubtedly a conscious legislation which is to be adopted.

6. Thus, prima facie, no case is made out by the applicant to grant permission to appear for the examination which is going to be held on 4.6.2023.

7. In view of the above, the prayer of the applicant for grant of interim relief is rejected.

8. S.O. to 14.6.2023."

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7. Mr.Sawant, learned AGP relied upon the order of the MAT

and opposed the Petition. He would submit that the 1939 Rules

do not apply to the case of the Petitioner, and therefore, Petition

ought to be dismissed.

8. We have heard Mr.Vijay Nagrani, learned Counsel for the

Petitioner and Mr. P.G.Sawant, learned AGP for the Respondent-

State and with their able assistance we have perused the papers

and proceedings and considered the rival contentions.

9. As can be seen, the MAT has rejected the interim application

observing that the 1939 Rules do not say anything about selection

by nomination because at the relevant time, the mode of selection

by nomination was not introduced, as the same was made

available post independence, as a policy of the State Government.

We have perused the 1939 Rules and agree with the observation

of the MAT that the said Rules are silent about selection by

nomination. We note that the Rules of 1986 of the State of

Maharashtra which regulate the upper age limit for recruitment by

nomination in the Class I to Class IV posts in Maharashtra Civil

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Services do not mention any age relaxation to be provided to

government servants. We have noted from the Recruitment Rules

dated 13th September 2013 and the Rules dated 8th June 2022 for

the recruitment to the post of Assistant Commissioner, (Food)-

cum-Designated Officer, (Group A) that both these sets of Rules

provide for appointment to this post by nomination in exercise of

powers conferred by proviso to Article 309 of the Constitution of

India and in supersession of all the existing rules, orders or

instruments issued earlier in this behalf. Therefore, the 1939 Rules

would not apply to the above Rules. For the same reason,

Petitioner's argument that by virtue of Note 3B to Rule 7 of the

1939 Rules, concession of age relaxation could be applied to

permanent government servants, would not hold water, as

Petitioner's case pertains to selection on the basis of nomination. If

that be so, it is not necessary for us, at this stage, to comment on

the Circular dated 1st November 2003 or on the decision of this

Court in the case of Anil Motilal Nimbhure vs. State of

Maharashtra and Others (supra) particularly keeping in mind that

the Original Application is still pending and listed on 14 th June

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2023 for the reliefs stated above. Even otherwise, on a plain

reading, Note 3B is not really a carve out, to mean that there shall

not be an upper age limit for the government servant, but that the

concession in the category of government servants would be

applicable only to the classes mentioned therein.

10. It is settled that service law is rule based. The relationship

between the employer and the employee in a public service and

the terms and conditions governing such relationship are generally

contained in statutory provisions or Rules. It is fundamental that

in relation to law relating to public employment, almost every

aspect thereof is governed mostly by statutory rules and unless

there is a rule permitting relaxation of age etc., the same cannot

be permitted. None of the applicable Rules above provide for any

age relaxation in respect of this post for general candidates. Even

the Recruitment Rules dated 8 th August 2002 which provide for

recruitment for the post of Assistant Commissioner, (Food)-cum-

Designated Officer, (Group A) framed in exercise of powers

conferred by the proviso to Article 309 of the Constitution of India

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in supersession of all the existing rules, orders or instructions

issued earlier, as held by the Tribunal to be applicable to the case

of the Petitioner, do not permit the relaxation of age limit beyond

the period of 38 years. No case is, therefore, made out by the

Petitioner to persuade us to take any other view. No interference,

therefore, is called for in the order of the Tribunal.

11. The Petition is dismissed. Rule stands discharged. No costs.

          (M.M.SATHAYE, J.)            ( ABHAY AHUJA, J.)




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