Pawan Kumar Gupta S/O Jagdish ... vs Rajasthan University Of Health ...
2022 Latest Caselaw 1390 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 2035/2022

Pawan Kumar Gupta S/o Jagdish Prasad Gupta, Aged About 50
Years, R/o B-43-46, Rameshwar Dham, Murlipura, Jaipur,
Rajasthan.
                                                                   ----Petitioner
                                   Versus
1.     Rajasthan University Of Health Science, Kumbha Marg,
       Sector-18, Tonk Road, Jaipur Through Its Registrar.
2.     The Coordinator, Assistant Drug Analyst Recruitment
       Examination-2013, Rajasthan University Of Health
       Science, Kumbha Marg, Sector-18, Tonk Road, Jaipur
3.     The Coordinator, Assistant Drug Analyst Recruitment
       Examination-2022, Rajasthan University Of Health
       Science, Kumbha Marg, Sector-18, Tonk Road, Jaipur
                                                                ----Respondents

For Petitioner(s) : Mr. Ram Pratap Saini Mr. Giri Raj Rajoria For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order 09/02/2022

This writ petition has been filed seeking a direction for the

respondents to accept online/offline application form of the

petitioner for the post of Assistant Drug Analyst by giving him age

relaxation as no vacancy has been advertised since the year 2013.

The facts in brief are that the petitioner applied for

appointment on the post of Assistant Drug Analyst in pursuance of

advertisement dated 30.08.2013 wherein age limit prescribed was

minimum 22 years and maximum 47 years as on the date of

recruitment examination, 2013. Without completing the

recruitment process in pursuance of the advertisement dated

30.08.2013, the respondents have issued a fresh advertisement

dated 10.01.2022 wherein the minimum age prescribed is 22

years with maximum age 48 years as on 01.01.2022. It is averred

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that by the time fresh advertisement has been issued, the

petitioner is rendered over age and a prayer has been made as

stated hereinabove.

Learned counsel contended that since the recruitment

process in pursuance of advertisement dated 30.08.2013 could

not be completed, in view of the notification dated 23.09.2008

issued by the Department of Personnel, Government of Rajasthan,

he is entitled for age relaxation. He submits that since clause 22

of the advertisement dated 10.01.2022 prescribes that those

candidates who have applied earlier in pursuance of advertisement

issued in the year 2013, are required to pay the difference amount

of application fee, i.e. Rs.5000-Rs.3000= Rs.2000/-, he is entitled

for benefit of age relaxation also. He, therefore, prayed that the

writ petition be allowed and the petitioner be permitted to

participate in the recruitment process by extending benefit of age

relaxation. Learned counsel relied upon a Co-ordinate Bench

order of this Court dated 27.01.2022 in S.B. Civil Writ Petition No.

17112/2021, Shyam Lal Sarawata Vs. State of Rajasthan & Ors. in

support of his submissions

Heard and considered.

A perusal of Clause 3 of the information booklet attached

with the advertisement dated 10.01.2022 reveals that age

relaxation has already been extended in terms of the notification

dated 23.09.2008. In view thereof, contention of the learned

counsel for the petitioner for age relaxation, relying upon the

notification dated 23.09.2008, cannot be countenanced. Similarly,

merely because the candidates who have already applied in

pursuance of advertisement issued in the year 2013 are required

to pay difference in application fee only, the petitioner cannot be

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granted age relaxation. It is trite that matter of age relaxation is a

policy decision in which the Court has minimal say.

The reliance placed by the learned counsel on the judgment

in case of Shyam Lal Sarawata is of no help to him having been

rendered in different facts and circumstances. Therein, the

petitioner was held entitled for age relaxation in view of the

circular dated 03.10.2017 issued by the State Government.

Herein, as already observed, the age relaxation has already been

extended keeping in view the notification dated 23.09.2008 and

no further extension is permissible.

A Division Bench of this Court in Chittar Singh Vs. State of

Rajasthan & Ors., D.B. Special Appeal (Writ) No. 105/2021

vide judgment dated 09.02.2021, held as under:-

"3. Learned counsel for the appellant submit that the examination for selection to the post of PTI Grade-III was conducted after a gap of more than five years, therefore, the appellant is entitled for age relaxation of more than three years but learned Single Judge has erred in dismissing his petition. The Appeal deserves to be allowed.

4. Learned Single Judge has rightly observed that the amended Rule gives maximum age relaxation of only three years and not further even if selection process has been started after five years. The appellant is undisputedly over aged by three years and nineteen days, therefore, we find no reason to interfere in the impugned order.

5. Accordingly, the appeal is dismissed."

Another Division Bench of this Court in Saroj Meena Vs.

The Registrar (Examination), Rajasthan High Court,

Jodhpur, Rajasthan, D.B. Civil Writ Petition No. 9132/2021

vide judgment dated 26.08.2021, held as under:-

"The previous advertisement for recruitment in Civil Judge Cadre was issued by the respondent on 15.11.2018. As per its clause-4, the cut off date for age limit

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was fixed as 1.1.2020 i.e. the first day of January following the last date fixed for receipt of the applications. Thereafter, the present advertisement dated 22.7.2021 has been issued wherein, as per Rule 17, the cut off date to adjudge eligibility of an applicant qua age though, fixed as 1.1.2022; but, as no advertisement was issued in the year 2020, keeping in view the provisions of Rule 17(iv), the applicants, who would have been entitled to appear in the examination on 1.1.2021 in view of their eligibility qua age, have also been permitted to undertake the examination. In this regard, reference may be made to explanation under Clause-10 of the advertisement which reads as under:

uksV%&mijksDr vk;q lhek esa f'kfFkyrk dsoy ,d Js.kh gsrq gh vuqKs; gksxhA Li"Vhdj.k%& vfUre ckj o"kZ 2018 esa flfoy U;k;k/kh'k laoxZ gsrq tkjh foKkiu esa vk;q lhek dh x.kuk 01-01-2020 ds vk/kkj ij dh xbZ Fkh rFkk bl foKkiu } kjk vk;ksftr dh tk jgh ijh{kk gsrq vk;q lhek dh x.kuk fnukad 01-01-2022 ds vk/kkj ij dh tk jgh gSA vr% ,sls vkosnd tks viuh vk;q lhek dh n`f"V ls fnukad 01-01-2021 dks mDr ijh{kk esa cSBus gsrq ik= gksrs] os bl ijh{kk gsrq vkosnu djus ds fy, vk;q lhek dh n`f"V ls ik= gSaA**"

Thus, the respondent has already extended the benefit under Rule 17(iv) to the candidates who would have been eligible to appear in examination had the advertisement been issued in the year 2020.

Since, the petitioner does not meet the eligibility criteria qua upper age limit even after relaxation in terms of Rule 17(iv), she is not entitled for the relief claimed in the writ petition.

Resultantly, this writ petition is dismissed devoid of merit."

Another Division Bench of this Court at Principal Seat

Jodhpur in Prem Ratan Modi Vs. The State of Rajasthan &

Ors. - 2013 (1) WLC (Raj.) 39 vide judgment dated

17.08.2012, held as under:-

"16. In our view, the claim as made for age relaxation for the entire period recruitments had not taken place, cannot be

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countenanced for being not in accord with the Rules.

17. In Malik Mazhar Sultan's case (2006) 9 SCC 507 even when emphasizing on the requirement of timely determination of the vacancies and timely appointments in relation to the U.P. Judicial Services, so far the age requirement was concerned, the Hon'ble Supreme Court held as under: -

"17. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1st July, 2001 and 1st July, 2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof.

Therefore, the answer to the question would turn upon the interpretation of the Rules."

(Emphasis supplied)

18. Moreover, in Anand Kanwar's case Civil Appeal No. 52/1993, even while noticing that the recruitments were not held during the years 1983 to 1989, the Hon'ble Supreme Court said,-

"Be that as it may, the High Court was not justified in taking the clock back to the period when unfilled vacancies were existing and holding that since the respondent was

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eligible on the date when vacancies fell vacant, she continued to be so till the time the vacancies are filled. Due to inaction on the part of the State Government in not filling the posts year-wise, the respondent cannot get a right to participate in the selection despite being over- aged." (Emphasis supplied)

19. In view of the law laid down by the Hon'ble Apex Court in Malik Mazhar Sultan and Anand Kanwar, the decision in Prakash Chand's case 1990 (2) WLN 317 as rendered by a Division Bench of this Court is of no help to the appellant.

20. The submission as made by the learned counsel for the appellant that limiting the age relaxation only upto 3 years operates contrary to the provisions of the Rules does not carry force. The aspects of yearly determination of vacancy and even yearly holding of recruitment do not ipso facto lead to the position that every person within the age limit as on the date of occurrence of the vacancy or determination of vacancy ought to be treated within the age irrespective of the other provisions of the Rules and irrespective of the time of recruitment.

21. In the ultimate analysis, age relaxation for the direct recruitment, if to be granted, would be a matter for the Government to prescribe in the relevant Rules; and beyond what has been prescribed, cannot be claimed as a matter of right. It appears that in order to mitigate against the hardship likely to be faced by the prospective candidates but at the same time maintaining the balance of the requirements of services, the Government has provided age relaxation upto 3 years by way of notifications of amendment as issued on 23.09.2008. Taking for example the recruitment in question, the maximum age limit as prescribed in the Rules is 35 years and it gets extended to 38 years with the relaxation provided. If at all the factor of not holding of recruitment for 13 years is taken into consideration and the relaxation for all the years of not holding recruitment is provided as suggested, it

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would be something like allowing a person even at about 48 years of age to enter into the service as an LDC. The Government, in its wisdom, if has chosen to restrict the relaxation to 3 years beyond the age as prescribed, it cannot be said that anything unreasonable or irrational has been provided.

22. We need not dilate further on the aforesaid aspect in the present case as the validity of Rules was not in challenge in the writ petition filed by the petitioner. In the existing scheme of Rules, the petitioner was not entitled to the relief as claimed; and hence, the learned Single Judge cannot be faulted in dismissing the writ petition."

In the backdrop of the aforesaid judgments, since, the

learned counsel failed to establish any legal right of the petitioner

for grant of age relaxation in the upper age limit, the writ petition

deserves to be dismissed.

The writ petition is dismissed accordingly.

(MAHENDAR KUMAR GOYAL),J

CHETNA BEHRANI /332

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