Mahesh Kumar vs State Of Rajasthan
2022 Latest Caselaw 4085 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2773/2022

Mahesh Kumar S/o Satya Narayan, Aged About 26 Years, Vpo Bada Kheda, Tehsil Indragarh, Bundi.

----Petitioner Versus

1. State Of Rajasthan, Through Director, Directorate Ayurved Department, Rajasthan, Ajmer.

2. The Registrar, Dr. Sarvepalli Radhakrishnan Rajasthan Ayurved University, Jodhpur.

----Respondents

For Petitioner(s) : Mr. Mahaveer Bishnoi.

For Respondent(s)         :     Mr. A.K.Gaur, AAG.
                                Mr. Suniel Purohit.



               HON'BLE MR. JUSTICE ARUN BHANSALI

                                     Order

15/03/2022

This writ petition has been filed by the petitioner seeking a

direction that Clause - 6 of the advertisement dated 17/6/2021

for recruitment on the post of Compounder/Nurse Junior Grade to

the extent of not granting age relaxation to the specially abled

persons be declared illegal, to grant age relaxation upto 10 years

to the candidates belonging to General PH category and not to

reject the candidature of the petitioner for the post of

Compounder/Nurse Junior Grade on account of his being overage

and include his name in the provisional merit list in General PH

category and be accorded appointment.

The respondents issued advertisement dated 17/6/2021 for

the post of Compounder/Nurse Junior Grade which inter alia

(2 of 9) [CW-2773/2022]

provided reservation for persons with disability to the extent of

40%.

Clause - 6 of the advertisement dealing with the 'age'

provides the cut off date as 1/1/2022 when the candidate must

have attained minimum age of 18 years and must not have

completed 40 years of age, however, in terms of the Government

notification as the recruitment in the Ayurved Department was not

held since the year 2018, further age relaxation to the extent of

02 years was provided. The Clause - 6 thereafter provided age

relaxation to the candidates belonging to SC, ST, OBC, MBC, EWS,

women, persons in service, departmental employees and those

entitled to grant of bonus marks. The Clause did not provide for

any further age relaxation for specially abled candidates.

The petitioner applied in pursuance to the advertisement

inter alia indicating his status as specially abled candidate.

However, admittedly, in terms of the advertisement, as on

1/1/2022, he was more than 42 years of age and as such over

aged.

In the list of candidates, who were called for document

verification, the petitioner was called and he appeared for

document verification. However, in the provisional merit list for

recruitment in the unreserved category, though the petitioner had

obtained marks higher than the cut off meant for General PH

category, his name did not appear in the list. The petitioner, on

objections being called qua the provisional merit list, filed his

objection for non-inclusion of his name and prayed that he be

granted age relaxation in accordance with Government Rules,

however, when nothing transpired, the present writ petition has

been filed.

(3 of 9) [CW-2773/2022]

Learned counsel for the petitioner made submissions that in

terms of the provisions of Rights of Persons with Disabilities Act,

2016 ('the Act, 2016'), the petitioner is entitled to grant of age

relaxation upto 10 years, however, no benefit has been extended

to the petitioner on account of which he has been ousted from the

merit list on the ground of over age, which action on the part of

respondents is not justified.

Further submissions were made that Section 34 (3) of the

Act, 2016 provides for grant of age relaxation in upper age limit

for employment of persons with benchmark disability and non-

grant of such relaxation is, therefore, not justified and

consequently, the action of the respondents in this regard

deserves to be quashed and name of the petitioner deserves to be

included in the provisional merit list.

Submissions were also made that respondents have

produced the Rajasthan Rights of Persons with Disabilities

(Amendment) Rules, 2021 ('the Rules, 2021'), wherein, now Rule

6A has been introduced in the Rajasthan Rights of Persons with

Disabilities Rules, 2018 ('the Rules, 2018') providing for age

relaxation of 05 years to persons with benchmark disabilities and,

therefore, also the petitioner is entitled for the relief.

Reliance has been placed on the judgment in State of Kerala

& Ors. vs. Leesamma Joseph : (2021) 9 SCC 208, Prasanna

Kumari E.S. vs. The Registrar, Kannur University : (2015) 3 KLT

943.

Learned counsel appearing for the University - Recruiting

Agency made submissions that the advertisement has been

published as per the directions received from the State and as the

advertisement did not provide for any age relaxation, the

(4 of 9) [CW-2773/2022]

candidature of the petitioner, being over aged, has been rightly

rejected.

Learned AAG made submissions that the provisions of

Section 34(3) of the Act, 2016 provides that the appropriate

Government may by notification provide for relaxation of upper

age limit for employment of persons with benchmark disability, as

it thinks fit, based on which the notification dated 14/10/2021 has

been issued, which was published on 21/10/2021 providing for

relaxation in age, however, as on the date of advertisement i.e.

17/6/2021 as well as on the last of application i.e. 26/7/2021, no

such age relaxation was available, therefore, the same was not

rightly included in the advertisement and as admittedly the

petitioner is over age in terms of the advertisement, his

candidature has been rightly rejected.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The facts are not in dispute, wherein, in terms of the

advertisement no age relaxation has been provided for specially

abled persons, though horizontal reservation for them in terms of

the provisions of the Act, 2016 and Rules, 2018 has been

provided. It is further an admitted position that in terms of the

advertisement as on 1/1/2022 the petitioner is over aged. The

plea raised is that as the petitioner is specially abled, he is entitled

to relaxation in upper age limit.

It would be appropriate to reproduce two provisions of the

Act, which deals with reservation & age relaxation for specially

abled candidates in higher educational institution and in

appointments in Government Establishment:

(5 of 9) [CW-2773/2022]

"32. Reservation in higher educational institution.- (1) .....................

(2) The persons with bench mark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education."

"34. Reservation.-

(1) ..........................

(2) .........................

(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit."

(emphasis supplied)

A perusal of the above provisions would reveal that the Act

while mandatorily provides age relaxation of five years in upper

age limit for admission in the institutions of higher education, in

respect of reservation in appointments, it has left to the

appropriate Government to provide for relaxation of upper age

limit for employment of persons with benchmark disability, as it

thinks fit.

Pursuant to the Act of 2016, the State Government

promulgated the Rules, 2018, whereby, the Rajasthan Persons

with Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Rules, 2011 were repealed, however, the Rules of

2018 did not provide for any kind of age relaxation to specially

abled candidates. As such, apparently, under the provisions of the

Act, 2016 read with the Rules, 2018, in absence of any specific

provision for grant of relaxation in upper age limit, the specially

abled candidates were not entitled for any age relaxation. As on

the date of advertisement and last date of filing the application i.e.

23/7/2021, no provision existed for grant of age relaxation to

specially abled candidates, apparently the petitioner was not

entitled for age relaxation.

(6 of 9) [CW-2773/2022]

The petitioner despite being over aged, filled up the on-line

application form and on his name appearing in the list of

candidates, who were called for document verification, he

appeared for document verification, when on account of his being

over aged, apparently his candidature was rejected and

consequently his name did not appear in the list of candidates,

who were included in the provisional merit list.

Though, the State has subsequently by notification dated

14/10/2021 provided for age relaxation (Annex.R/1), the Rules

have come into force from the date of their final publication in the

official gazette, which publication has taken place on 21/10/2021,

as such, the amendment in the Rules, 2018 cannot be said to be

retrospective so as to apply to the recruitment initiated by

advertisement dated 17/6/2021.

The Hon'ble Supreme Court in Pradeep Kumar Maity vs.

Chinmoy Kumar Bhunia & Ors. : (2013) 11 SCC 122, wherein also

specially abled candidate sought age relaxation, inter alia came to

the following conclusion:

"15. In this analysis we cannot but conclude that the appellant has failed to disclose any legislation or rules or orders that would facilitate, support or legitimise his claim for being conferred with the advantage of age relaxation, which is presently available only to SC/ST/OBC candidates. It is for these reasons that regretfully we are unable to locate any merit in the present appeal."

The Division Bench of this Court in Shreepal Chand Lodha vs.

High Court of Judicature for Rajasthan, Jaipur & Ors. : D.B.Civil

Writ Petition No. 21470/2013 decided on 18/12/2013 by Jaipur

Bench, when age relaxation was sought under the Act of 1995 and

Rules of 2011, which provided for relaxation, however, such

(7 of 9) [CW-2773/2022]

relaxation was not incorporated in the Rajasthan Judicial Service

Rules, came to the following conclusion:

"A bare perusal of Rule 39 of the 2011 Rules indicates, in clearterms, that thereby an option for grant of relaxation in age for persons with disabilities under the Act is contemplated. No inviolable mandate for relaxation in age for the different categories of candidates therein, is discernible. The provision of reservation in the Rules for persons with disabilities under the Act, more particularly in the face of the language used in Rule 39 of 2011 Rules, does not, ipso facto, make it axiomatic to sanction, in addition, age relaxation in terms of the same (Rule 39 of 2011 Rules). The plea of repugnance of Rule 17 of the Rules with the Act or Rule 39 of 2011 Rules, thus, lacks in persuasion. The language employed in Rule 39 of 2011 Rules, being plain and unambiguous, it is a fundamental principle of interpretation of statutes that words or meaning unnecessary or as surplusage, ought not be supplied.

The Rules had been framed in exercise of powers conferred by Article 233 and 234 read with proviso to Article 309 of the Constitution of India for regulating recruitment to the posts in the service and the conditions and other matters related thereto. Understandably, exhaustive deliberations and scrutiny of all relevant aspects bearing on the office and, inter alia, the nature of duties and responsibilities attached thereto, had been undertaken to frame each provision thereof, assigning paramount importance to the demanding institutional exigencies. Apart from the fact that it is perceptionally the singular prerogative of the appointing authority, the Governor of Rajasthan, in consultation with the Rajasthan Public Service Commission and the High Court of Judicature for Rajasthan, to frame rules in exercise of the aforementioned constitutional powers and to provide for norms for regulating recruitment to the posts in the service to adequately cater to the institutional essentialities and imperatives, the act involved being exclusively legislative in nature, no provision thereof can be lightly tinkered with.

A close perusal of Rule 17 of the Rules demonstrates that it does adequately take care of age limits of various categories of candidates.

The plea of omission to provide for relaxation in age to the persons with disabilities under the Act, therefore, in the comprehension of this Court, is wholly misplaced and cannot be entertained. The rejection of the petitioners candidature due to overage, thus, cannot be faulted with.

The petition lacks in merit and is dismissed. The stay application also stands rejected.

As such, in absence of any provision/Rule on the last date of

application in terms of the advertisement, providing for relaxation

(8 of 9) [CW-2773/2022]

in upper age limit to specially abled candidates, the plea raised by

the petitioner cannot be accepted.

It would also be relevant to notice that the petitioner though

ineligible on account of being over aged, filled up the online

application and is now seeking direction from the Court for grant

of relaxation. There would be other over aged candidates also,

who on account of absence of any age relaxation in the

advertisement, did not apply and merely because the petitioner

chose to ignore the above aspect and applied, cannot claim

consideration by this Court. If the petitioner was aggrieved of non-

grant of age relaxation, the lack of provision should have been

questioned at the stage of advertisement itself.

So far as the judgment in the case of Leesamma Joseph

(supra) is concerned, the same deals with the grant of promotion

under proviso to Section 34(1) of the Act, 2016 and has nothing

to do with the age relaxation for appointment.

The judgment in the case of Prasanna Kumari (supra) of

Kerala High Court would have no application inasmuch as the said

judgment proceeds on the fact that as before the date of interview

the amendment has been introduced, the candidate was eligible

on that date.

In the present case, the recruitment is not based on any

interview and it is only the document verification, which is

relevant. The Division Bench of this Court in State of Rajasthan &

Ors. vs. Zaiba & Ors. : D.B.Spl. Appeal Writ no. 252/2019 decided

on 24/4/2020, while dealing with the requirement of eligibility in a

case of present nature came to the conclusion that any

recruitment based on academic qualification, the eligibility criteria

(9 of 9) [CW-2773/2022]

must be satisfied by the candidate on the appointed day i.e. last

date of filing the application and the same cannot be extended to

the date of document verification and ultimately observed as

under:

"24. Indubitably, the writ petitioners were not holding the requisite qualification as on the date of submission of the application forms online inasmuch as, at the relevant time, they were pursuing their internship and had not acquired the registration with RPMC after completion of the professional course. Merely because, they were permitted to fill up the application form, notwithstanding that they were not holding the requisite qualification as on the date of the submission of application form online, pursuant to an interim order passed by this Court, no right is created in their favour. The requirement of the eligibility qualification as on the date of the submission of the application form as specified in the advertisement, cannot be relaxed inasmuch as there is no provision in the Rules of 1965 permit such relaxation. Moreover, many more persons who were not having the qualification as on the date fixed for submission of the application form but were in position to obtain the requisite qualification subsequent thereto, might not have even applied for appointment to the post. That apart, if the writ petitioners who are not otherwise eligible to apply for the post, are permitted to participate in the selection process and stand in merit, other persons who were having the requisite qualification as on the date of submission of the application form, may be deprived of the appointment. In the considered opinion of this Court, the cut-off date fixed for the eligibility qualification while initiating the recruitment process needs to the adhered to strictly so as to maintain transparency and fairness in the recruitment process undertaken for public employment."

In that view of the matter, the judgment of Kerala High Court

being contrary to the law laid down by the Division Bench of this

Court cannot aid the case of the petitioner.

In view of the above discussion, no case for grant of any

relief to the petitioner is made out. The petition is, therefore,

dismissed.

(ARUN BHANSALI),J 238-baweja/-

Powered by TCPDF (www.tcpdf.org)