Gujarat High Court
Vankar Girishkumar Hirabhai vs State Of Gujarat on 3 February, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/15790/2024 ORDER DATED: 03/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15790 of 2024
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VANKAR GIRISHKUMAR HIRABHAI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,3,35,36,37,38,39,4,4
0,5,6,7,8,9
MS. KRINA CALLA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/02/2025
ORAL ORDER
1. Heard learned advocate Mr. Gaurav Chudasama for the
petitioner and learned AGP Ms. Krina Calla for the respondent -
State.
2. By way of this petition, the petitioners have prayed for a
direction to give relaxation in the upper age limit and grant age
relaxation upto 4 years in the recruitment process of
advertisement no. 3 of 2024 and 4 of 2024 issued by the
respondent no. 3 for the post of Vidhyasahayak in Standard 1 to
5 and Standard 6 to 8. The petitioners have also prayed for a
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direction that after granting the age relaxation, the present
petitioners may be permitted to participate in the recruitment
process pursuant to the advertisement no. 3 of 2024 and 4 of
2024 issued by the respondent no. 3 for the post of
Vidhyasahayak in Standard 1 to 5 and standard 6 to 8. The
petitioners have also prayed for quashing and setting aside the
recruitment process of the Advertisement No. 3 of 2024 and 4 of
2024 dated 01.11.2024 issued by the respondent no. 3 for the
post of Vidhyasahayak.
3. Learned advocate Mr. Gaurav Chudasama for the petitioner
submitted that all the petitioners are eligible to appear for the
post of Vidhyasahayak and they have cleared the TET
examination prior to 2023. Learned advocate Mr. Chudasama
points out that as per the advertisement impugned, the age limit
prescribed for Standard 1 to 5 is between 8 to 33 years and for
Standard 6 to 8 is between 18 to 35 years. All the petitioners
belong to SC Category and therefore, they seek relaxation of age
criteria.
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3.1. Learned advocate Mr. Chudasama submitted that on earlier
occasion, vide Government Resolution dated 30.07.2024, the
validity of TET Certificate was extended and therefore, if the
petitioners are granted benefits of age relaxation and certificate
of TET in respect of each petitioners which is issued prior to the
year 2023 are also held to be eligible by extending its validity
then they can participate in the recruitment process and thereby,
they can opt for the post of Vidhyasahayak by becoming eligible
to apply for the same. He, therefore, prayed for issuance of
notice.
3.2. Learned advocate Mr. Chudasama submitted that since long
there is no advertisement for the recruitment to the post of
Vidhyasahayak. Advertising such large number of posts and
though in the past, the recruitment has taken place that was for
negligible number of posts and therefore, just to ensure that
maximum persons can participate in the recruitment process, the
upper age limit is required to be relaxed.
3.3. Learned advocate Mr. Chudasama also submitted that in the
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past also there are instances that the State Government has
relaxed the age limit and therefore, if the State has done the
same in the past, the State can be directed to relax the upper age
limit in respect of present advertisement also by exercising the
powers under Article 226 of the Constitution of India.
4. Learned AGP Ms. Krina Calla appearing for the respondent -
State vehemently opposed this petition and submitted that by
way of catena of decisions, it is held that prescription of age
limit in the advertisement is purely within the domain of the
recruiting body and therefore, when the petitioners could not
point out that the age limit prescribed by the respondents is
either absolutely on the basis of absurd consideration or is
without jurisdiction and competence of the respondents, the
same cannot be interfered with. Learned AGP Ms. Calla
submitted that merely because the petitioners are age barred, just
to accommodate the petitioners, age limit cannot be relaxed
without there being any logic or reason behind the same.
4.1. Learned AGP Ms. Calla further submitted that in every
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recruitment process, some candidates would always find that
they are falling short of upper age limit or lower age limit and
therefore, by relaxing it to some extent, a person can be
considered for the post in question. However, the same thing
may take place in respect of every advertisement and therefore,
just with a view to see that some more persons are
accommodated, such advertisements cannot be modified by
relaxing certain parameters or required criteria.
4.2. Learned AGP Ms. Krina Calla relying upon the decision of
the Hon'ble Court in case of Kendriya Vidyalaya Sangathan
and others V/s. Sajal Kumar Roy and Others reported in
(2006) 8 SCC 671 and by relying upon the paragraphs no. 11, 12
and 13 of the above judgment, learned AGP Ms. Calla submitted
that the powers to relax the Rules can be exercised in larger
public interest only in a given case and the same should not
become a routine.
4.3. Learned AGP Ms. Calla further relied upon a decision in
case of Dr. Ami Lal Bhat V/s. State of Rajsthan and Others
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reported in (1997) 6 SCC 614 and submitted that if the
advertisement is issued within the reasonable time of occurrence
of vacancy and there is no malafide delay, the action of
appointing authority cannot be faulted.
4.4. Learned AGP Ms. Calla further submitted that just before 2
or 3 years, the last recruitment process was undertaken and
therefore, when there is no inordinate delay, the Court may not
exercise its discretion and issue any direction for age relaxation.
4.5. By relying upon the two decisions, learned AGP Ms. Calla
prayed for dismissal of this petition.
5. I have heard learned advocate Mr. Chudasama for the petitioners
and learned AGP Ms. Krina Calla for the respondents - State.
On perusal of record, I found that the petitioners though are
qualified but on account of upper age limit, there are not in a
position to participate in either of the advertisement which are
subject matter of challenge before this Court.
6. The petitioners have further shown that in the past, the State
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Government had relaxed the age criteria in a given case and
therefore, in the instant case also the State Government can be
directed to relax the upper age limit.
7. This Court put a specific query to learned advocate Mr.
Chudasama that when the last time the advertisement was issued
by the State Government for recruitment to the post of
Vidhayasahayak, learned advocate Mr. Chudasama was fair
enough to state that last time the advertisement was issued in the
year 2022 but at that time only around 500 posts were advertised
whereas this time around only 12,000 vacancies in all in respect
of both the advertisements are issued and the petitioners are not
in a position to participate only on account that they have
attained the upper age limit. Therefore, in light of above
submissions, the matter was considered.
8. It is true that the petitioners have crossed the upper age limit but
at the same time it is equally true that in the year 2022 also an
advertisement was published and at that time also the petitioners
should have participated in the recruitment. Further though
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learned advocate Mr. Chudasama had pointed out at the
instances by the State Government by way of Government
Resolution that the upper age limit is relaxed in respect of
certain recruitment process and more particularly in respect of
recruitment of Vidhasahayak as well in the year 2024 itself but
at the same time, learned advocate Mr. Chudasama failed to
point out that it is obligatory on the part of State to relax the age.
Further learned advocate Mr. Chudasama also could not
demonstrate the fact that there is any illegality or incompetence
in fixing the upper age limit and therefore, the submissions of
learned advocate Mr. Chudasama required to be seen in light of
the decision of the Hon'ble Supreme Court relied upon by
learned AGP Ms. Calla in case of Kendriya Vidyalaya
Sangathan and others V/s. Sajal Kumar Roy and Others
reported in (2006) 8 SCC 671 wherein the Hon'ble Court in
paragraphs no. 11, 12 and 13 has observed as under:-
"11. The Respondents are not members of the Scheduled Caste or
Scheduled Tribe. Age limit is prescribed for appointment to the
general category of employees. The upper age-limit for appointment
to the post of LDC is 25 years. The advertisement also says so. The
Rules, as noticed hereinbefore, are in two parts. The first part talks
about the age-limit. The second part provides for relaxation. Such
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relaxation can be granted for the purpose specified i.e., in favour of
those who answered the descriptions stated therein. Relaxation of
age- limit even in relation to the Scheduled Caste and the Scheduled
Tribe candidates or the retrenched Central Government employees,
including the defence personnel is, however, not automatic. The
appointing authorities are required to apply their mind while
exercising their discretionary jurisdiction to relax the age-limits.
Discretion of the authorities is required to be exercised only for
deserving candidates and upon recommendations of the Appointing
Committee/Selection Committee. The requirements to comply with
the rules, it is trite, were required to be complied with fairly and
reasonably. They were bound by the rules. The discretionary
jurisdiction could be exercised for relaxation of age provided for in
the rules and within the four corners thereof. As the respondents do
not come within the purview of the exception contained in Article 45
of the Education Code, in our opinion, the Tribunal and
consequently, the High Court committed a manifest error in issuing
the aforementioned directions.
12. In Food Corporation of India v. Bhanu Lodh this Court stated
the law thus : (SCC p. 628, para 23)
"....While the maximum age prescribed under the Recruitment
Rules is 35/40 years for the posts concerned, departmental
candidates in the age of 52-53 years were proposed to be
appointed. Even assuming that there is a power of relaxation
under the Regulations, we think that the power of relaxation
cannot be exercised in such a manner that it completely
distorts the Regulations. The power of relaxation is intended to
be used in marginal cases where exceptionally qualified
candidates are available. We do not think that they are
intended as an 'open sesame' for all and sundry. The wholesale
go-by given to the Regulations, and the manner in which the
recruitment process was being done, was very much reviewable
as a policy directive, in exercise of the power of the Central
Government under Section 6(2) of the Act."
13. Yet again in Dr. Ami Lal Bhat (Dr.) v. State of Rajasthan the
law is stated in the following terms : (SCC pp. 620-21, paras 10-11)
"10.... In other words, what is contended is that if on the date
when the vacancy occurred, the candidates were within the
maximum age prescribed by reference to the cut-off date, then
if the advertisement is delayed, their age should be considered
with reference to the cut-off date of 1st January following the
date of occurrence of vacancy. For example, if the vacancy has
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occurred on 1st of April of a given year, and the applicant
would be within the maximum age on the 1st of January of the
following year, then such a candidate will be considered as
eligible even if the advertisement is issued not in April of that
year but say February of the following year. All the candidates
will get age relaxation of one year.
11. In our view this kind of an interpretation cannot be given to
a rule for relaxation of age. The power of relaxation is
required to be exercised in public interest in a given case; as
for example, if other suitable candidates are not available for
the post, and the only candidate who is suitable has crossed the
maximum age-limit; or to mitigate hardship in a given case.
Such a relaxation in special circumstances of a given case is to
be exercised by the administration after referring that case to
the Rajasthan Public Service Commission. There cannot be any
wholesale relaxation because the advertisement is delayed or
because the vacancy occurred earlier especially when there is
no allegation of any mala fides in connection with any delay in
issuing an advertisement. This kind of power of wholesale
relaxation would make for total uncertainty in determining the
maximum age of a candidate. It might be unfair to a large
number of candidates who might be similarly situated, but who
may not apply, thinking that they are age-barred. We fail to see
how the power of relaxation can be exercised in the manner
contended."
The above paragraphs would indicate that the power of
relaxation is required to be exercised in public interest only
in a given case and not in every case. Further Hon'ble
Supreme Court in case of Dr. Amitlal Bhat V/s. State of
Rajsthan reported in 1997 6 SCC 614 held that the power of
relaxation of age is required to be exercised in public
interest in a given case and only when if the suitable
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candidates are not available for the post and all to mitigate
hardship in a given case.
9. In view of above decisions, when the Hon'ble Supreme Court
has categorically stated that only in a given case, considering the
special circumstances, the upper age limit can be relaxed and as
in the instant case, the advertisement for recruitment to the post
of Vidhayasahayak was issued in the year 2022 and
Government Resolution dated 30.07.2024 indicates that even in
the year 2024 also such advertisement for recruitment to the post
of Vidhyasahayak was issued and learned advocate Mr.
Chudasama also could not deny the aforesaid fact which would
indicate that the recruitment process for appointment to the post
of Vidhyasahayak is a regular process that Government is
carried out every year, no exceptional case is made out or no
case is made out by learned advocate Mr. Chudasama to indicate
that there is any delay in issuing the advertisement by the State
Government once the number of posts fell vacant.
10. In view of that as well as in view of the decisions of the Hon'ble
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Supreme Court, I don't see any reason to entertain this petition
when regularly the advertisement for recruitment to the posts of
Vidhayasahayak are issued by the State Government and no
special case is made out by learned advocate Mr. Chudasama to
compel this Court to take a view that the age relaxation is
required to be exercised. Accordingly, this petition is required to
be dismissed and the same is dismissed.
(NIRZAR S. DESAI,J)
VARSHA DESAI
