Rajasthan High Court - Jodhpur

Nirmala Jain vs State Of Rajasthan ... on 19 May, 2023

Bench: Vinit Kumar Mathur

[2023/RJJD/016314] (1 of 21) [CW-16192/2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 16192/2022

Dhuleshwar Ghogra S/o Soma Ji Ghogra, Aged About 55 Years, R/o Village Majola, Post Sati Rampur, District Dungarpur (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Dungarpur, Rajasthan.

----Respondents Connected With S.B. Civil Writ Petition No. 14948/2022 Basanti Lal Sukhwal S/o Shri Jamana Lal Sukhwal, Aged About 51 Years, R/o Village And Post Badliyas, Tehsil Kotdi, District Bhilwara (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Bhilwara, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 14957/2022 Ram Singh S/o Shri Gopal Singh, Aged About 50 Years, R/o Shiv Mandir Ke Samne, Parlai, Post Veerwara, Tehsil Pindwara, District Sirohi (Raj.).

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----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Sirohi, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 15005/2022 Dinesh Kumar Shrivastava S/o Braj Mohan Shrivastava, Aged About 52 Years, Plot No. 2, Khara No. 108, Bhomiya Ji Ka Than, Nandri, Jodhpur (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Jodhpur, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 16036/2022 Bhagwandas Swami S/o Sh. Dungerdas Swami, Aged About 54 Years, Resident Of Ward No. 3, Near Government School, Khileriwas, P.o Fatehgarh District Hanumangarh (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary To The Government, Department Of Village Development And Panchayati Raj, Jaipur.

2. Chief Executive Officer, Zila Parishad Jaisalmer (Raj.).

3. Chief Executive Officer, Zila Parishad Jodhpur (Raj.).

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4. Chief Executive Officer, Zila Parishad Jodhpur (Raj.).

5. The Additional Programme Coordinator And Chief Executive Officer, Hanumangarh (Raj.).

----Respondents S.B. Civil Writ Petition No. 16203/2022 Mohan Lal Ahari S/o Roopaji Ahari, Aged About 54 Years, R/o Village And Post Charwad, Tehsil Simalwara, District Dungarpur (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Dungarpur, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 16208/2022 Ameer Mohammad S/o Sher Mohammad, Aged About 59 Years, R/o Sadar Bazar Jaswantpura, District Jalore (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Jalore, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 16998/2022 Jagdish Chand Sharma S/o Shri Shivlal Sharma, Aged About 50 Years, R/o 64, Rayti, Ward No. 11, Rayti, Tehsil Begun, District

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Chittorgarh, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through Its Secretary, Department Of Panchayati Raj And Rural Development, Secretariat, Government Of Rajasthan, Jaipur.

2. The Director, Department Of Panchayati Raj And Rural Development, Government Of Rajasthan, Jaipur.

3. The District Collector, District Chittorgarh, Rajasthan.

4. The Chief Executive Officer, Zila Parishad, Chittorgarh, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 17034/2022 Giriraj Singh Rathore S/o Shri Bhopal Singh Rathore, Aged About 51 Years, Village Sadari, Post Sadara, Tehsil Sawar, District Ajmer, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through Its Secretary, Department Of Raj And Rural Development, Secretariat, Government Of Rajasthan, Jaipur.

2. The Director, Department Of Panchayati Raj And Rural Development, Government Of Rajasthan, Jaipur.

3. The District Collector, District Ajmer, Rajasthan.

4. The District Collector, District Chittorgarh, Rajasthan.

5. The Chief Executive Officer, Zila Parishad, Ajmer, Rajasthan.

6. The Chief Executive Officer, Zila Parishad, Chhitorgarh, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 17048/2022 Ratan Lal Nogiya S/o Shri Jeevraj Nogiya, Aged About 52 Years, R/o Ward No. 9, Purbiyon Ka Mohalla, Gangrar, District Chittorgarh, Rajasthan.

----Petitioner Versus

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1. The State Of Rajasthan, Through Its Secretary, Department Of Panchayati Raj And Rural Development, Secretariat, Government Of Rajasthan, Jaipur.

2. The Director, Department Of Panchayati Raj And Rural Development, Government Of Rajasthan, Jaipur.

3. The District Collector, District Chittorgarh, Rajasthan.

4. The Chief Executive Officer, Zila Parishad Chittorgarh, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 17535/2022 Pavan Kumar Jain S/o Shri Madan Lal Jain, Aged About 51 Years, R/o Vpo- Kun, Via- Kanore, Tehsil - Lasadiya, District - Udaipur, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through Its Secretary, Department Of Panchayati Raj And Rural Development, Secretariat, Government Of Rajasthan, Jaipur.

2. The Director, Department Of Panchayati Raj And Rural Development, Government Of Rajasthan, Jaipur.

3. The District Collector, District Dungarpur, Rajasthan.

4. The Chief Executive Officer, Zila Parishad, Dungarpur, Rajasthan.

5. The District Collector, District Udaipur, Rajasthan.

6. The Chief Executive Officer, Zila Parishad, Udaipur, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 17636/2022 Shyam Sunder Vyas S/o Late Shri Prahalad Dutt Vyas, Aged About 50 Years, R/o Kikani Vyaso Ka Chowk, Dau Kaka Ki Gali Bikaner, District Bikaner, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through Its Secretary, Department Of Panchayati Raj And Rural Development, Secretariat, Government Of Rajasthan, Jaipur.

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2. The Director, Department Of Panchayati Raj And Rural Development, Government Of Rajasthan, Jaipur.

3. The District Collector, District Bikaner, Rajasthan.

4. The Chief Executive Officer, Zila Parishad Bikaner, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 17657/2022 Lalit Kumar Sharma S/o Shri Hari Kishan Sharma, Aged About 50 Years, R/o Inside Of Usta Bari Sevago Ki Gali Bikaner, District Bikaner, Rajasthan.

----Petitioner Versus

1. The State Of Rajasthan, Through Its Secretary, Department Of Panchayati Raj And Rural Development, Secretariat, Government Of Rajasthan, Jaipur.

2. The Director, Department Of Panchayati Raj And Rural Development, Government Of Rajasthan, Jaipur.

3. The District Collector, District Bikaner, Rajasthan.

4. The Chief Executive Officer, Zila Parishad Bikaner, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 17678/2022 Chhotu Lal Acharya S/o Shri Mohan Lal Acharya, Aged About 48 Years, R/o Dwarka Kunj, Brahmino Ka Mohalla, Behind Dudi Petrol Pump, Bangla Nagar, Bikaner, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through Its Secretary, Department Of Panchayati Raj And Rural Development, Secretariat, Government Of Rajasthan, Jaipur.

2. The Director, Department Of Panchayati Raj And Rural Development, Government Of Rajasthan, Jaipur.

3. The District Collector, District Bikaner, Rajasthan.

4. The Chief Executive Officer, Zila Parishad, Bikaner, Rajasthan.

----Respondents

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S.B. Civil Writ Petition No. 18639/2022 Nirmala Jain D/o Shri Ratan Lal Jain, Aged About 51 Years, House No. 1, Jyoti Nagar, Shobagpura, Tehsil Badgaon, District Udaipur (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Udaipur, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 1961/2023

1. Hanwant Singh Rathore S/o Ram Singh Rathore, Aged About 50 Years, R/o Village And Post Raisar, Tehsil Shergarh, District Jodhpur (Raj.).

2. Deepak Kumar Singhvi S/o Shri Narsingh Singhvi, Aged About 51 Years, R/o Benawaton Ka Bass, City Police, Jodhpur (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj (Panchayati Raj), Government Of Rajasthan, Jaipur, Rajasthan.

2. Additional Commissioner, Rural Development And Panchayati Raj Department, Government Of Rajasthan, Jaipur.

3. Chief Executive Officer, Zila Parishad Jodhpur, Rajasthan.

                                                                     ----Respondents


For Petitioner(s)           :     Mr. M.L. Deora
                                  Mr. Pawan Singh




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                                     Mr. Rishabh Purohit
                                     Mr. Ramesh Kumar
For Respondent(s)              :     Mr. Sunil Beniwal, AAG with
                                     Mr. Kunal Upadhyay

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

19/05/2023

Heard learned counsel for the parties.

Since the controversy involved in the present writ petitions is

similar, therefore, they are being decided by this common order.

For brevity, the facts of S.B. Civil Writ Petition

No.16998/2022 "Jagdish Chand Sharma Vs. State of Rajasthan &

Ors." are being taken into consideration for deciding the

controversy involved in these cases.

Briefly, the facts giving rise to the present writ petition are

that the respondent- Rural Development and Panchayati Raj

Department issued a Notification dated 20.09.2007 (Annex.1) for

appointment on the post of Senior Technical and Gram Sahayak on

contractual basis. The petitioner, being eligible, was appointed on

the post of Gram Sahayak on the fixed remuneration of Rs.2,500/-

p.m. He performed the work of Gram Sahayak for more than five

years. In the year 2013, the respondents invited online

applications for appointment on the post of Lower Division Clerk

(L.D.C.). The last date for filling up the application form was

22.03.2013. Considering himself falling within the age limit as

prescribed in Condition No.8 of the Advertisement, the petitioner

applied for the post of L.D.C. However, the respondents rejected

[2023/RJJD/016314] (9 of 21) [CW-16192/2022]

the candidature of the petitioner being overage. Hence, the

present writ petitions.

Learned counsel for the petitioners submit that the

petitioners were working on different posts in the respondent-

Department on contract basis for a period of more than five years,

thus, they are entitled for relaxation in the upper age limit for a

period of five years as per Condition No.8 (xi) of the

Advertisement and a further relaxation of three years as per the

Advertisement on account of the fact that no recruitment process

was conducted by the respondents preceding to the year 2013.

In nutshell, the argument of the learned counsel for the

petitioners is that as per the conditions prescribed in the

Advertisement, general relaxation of three years' period in the

upper age limit to all the persons, irrespective of the fact that

whether a person belonging to a particular category or not, has

been granted on account of the fact that no recruitment was

conducted by the respondents in preceding three years of 2013.

Learned counsel for the petitioners further submit that since the

petitioners have performed the contractual engagement with the

respondents on different posts for more than five years, therefore,

they are entitled for five years' relaxation in the age in addition to

the three years' period.

Learned counsel for the petitioners further submit that

relying upon the conditions of the Advertisement, a number of

persons have been appointed who are similarly situated having

the age more than the upper age limit prescribed in Rule 265 of

the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to

as the 'Rules of 1996').

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In support of their submissions, learned counsel have relied

upon a judgment of this Court rendered in S.B. Civil Writ

Petition No.13347/2017 "Bheem Singh Udawat Vs. The

State of Rajasthan & Ors." decided on 11.10.2022.

Learned counsel, therefore, pray that the present writ

petitions may be allowed and the respondents may be directed to

consider the cases of the petitioners giving them the relaxation in

the upper age limit to the extent of eight years.

Per contra, Mr. Sunil Beniwal, learned Additional Advocate

General, while opposing the arguments advanced by the learned

counsel for the petitioners, submits that recruitment and

appointments in the respondent-Department are governed by Rule

265 of the Rules of 1996. He submits that as per the normal rule,

the minimum age permissible for appointment in the State of

Rajasthan is 18 years and maximum 35 years, however, under

certain circumstances, the relaxation in the upper age limit has

been provided by the State Government to different

categories/classes. Learned Additional Advocate General further

submits that if there is any variation to the rules in the

Advertisement, then the conditions mentioned in the

Advertisement will not prevail and the Rules will be taken into

account while giving appointment on the different posts by the

State Government. He submits that as per Rule 265 of the Rules

of 1996, a person is entitled for relaxation in the upper age limit

under one of the provisos as provided under Rules 265 and

clubbing of more than one proviso is not permissible. Learned

Additional Advocate General further clarified that a general

relaxation of three years for non-holding of the recruitment

[2023/RJJD/016314] (11 of 21) [CW-16192/2022]

process in the State of Rajasthan has been provided as per

proviso (x) of Rule 265 of the Rules of 1996. A person is entitled

to relaxation under one of the provisos provided under Rule 265 of

the Rules of 1996. In the present case, since the petitioners being

entitled to get the benefit of upper age limit as per proviso (xi) of

Rule 265 of the Rules of 1996, they have already been granted the

benefit of age relaxation for working with the respondents for

more than five years on contract basis, therefore, once the benefit

of said proviso has been granted to the petitioners, they are not

entitled to extend the benefit of any other proviso giving age

relaxation as mentioned in other provisos to Rule 265 of the Rules

of 1996.

Learned Additional Advocate General, in support of his

contentions, has relied upon a Division Bench judgment of this

Court rendered in D.B. Civil Special Appeal (Writ)

NO.1141/2008 "Alsa Ram Meghwal Vs. Rajasthan Public

Service Commission, Ajmer & Anr.".

Learned Additional Advocate General by way of submitting

an Additional Affidavit informed this Court that any appointment

made in violation of Rule 265 of the Rules of 1996, a notice of

termination has been served to such candidates and even till date,

if any appointment made de hors the Rule 265 is brought to the

notice of the respondents, appropriate action in accordance with

law will be taken against such candidates.

So far as the judgment relied upon by the learned counsel

for the petitioners in the case of Bheem Singh Udawat (supra) is

concerned, the learned Additional Advocate General submits that

an appeal being D.B. Special Appeal (Writ) No.1114/2022

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"The Secretary, Rajasthan Subordinate and Ministerial

Service Selection Board Vs. Bheem Singh & Ors." has been

filed before the Hon'ble Division Bench and the Division Bench

vide its order dated 04.02.2023, has stayed effect and operation

of the order dated 11.10.2022 passed in the case of Bheem

Singh Udawat (supra).

I have considered the submissions made at the Bar and have

gone through the relevant record of the case.

For proper adjudication of the case, the condition giving age

relaxation in the Advertisement reads as under:-

"jktLFkku iapk;rh jkt fu;e 1996 ds fu;e 265 ds vuqlkj vkosnu çLrqr djus dh vafre fnukad rd U;wure vk;q 18 o"kZ iw.kZ djyh gks rFkk fnukad 01-01-2014 dks 35 o"kZ dh vk;q iw.kZ ugha fd;k gksuk pkfg;sA fu;e 265 ¼X½ jktLFkku iapk;rh jkt fu;e 1996 ds vuqlkj xr 3 o"kkZs ls vfèkd vofèk ls dfu"B fyfid HkrÊ ijh{kk vk;ksftr ugha gksus ds dkj.k vkosndksa dks 3 o"kZ dh vfrfjä NwV vk;q lhek esa çkIr gksxh vFkkZr fnukad 01-01-14 dks vkosnd dh vk;q 38 o"kZ ls vfèkd ugha gksuh pkfg;sA

fuEufyf[kr Js.kh ds vH;fFkZ;ksa dks fuEukuqlkj vk;q lhek esa NwV ns; gS%&

i. jktLFkku jkT; ds [email protected] v-t-tk- rFkk vU; fiNMk oxksZa ¼uksu Øhfeys;j½ ds iq#"k vH;FkÊ ;k lkekU; çoxZ dh efgyk vH;FkÊ ds fy;s Åijh vk;q lhek esa 5 o"kZ dh NwVA

ii. jktLFkku jkT; dh [email protected] v-t-tk- rFkk vU; fiNM+k oxkZs ¼uksu Øhfeys;j½ ds efgyk vH;kFkÊ ds fy;s Åijh vk;q lhek esa 10 o"kZ dh NwVA

iii. HkwriwoZ lSfudksa ds fy, Åijh vk;q lhek 50 o"kZ gksxhA iv. iapk;rksa ds lfpoksa ds :i esa igys ls dk;Z dj jgs O;fä;ksa ds fy, mijh vk;q lhek] rhu o"kksZa dh vfèkdru lhek ds vèkhu jgrs gq,] iapk;r lfpo ds :i esa dh x;h lsok dh dkykofèk rd f'kfFkyuh; gksxhA

v. foèkokvksa ,oa rykd'kqnk efgykvksa ds ekeyksa esa dksbZ vk;q ¼vfèkokf"kZdh rd½ lhek ugha gksxhA

Li"Vhdj.k% mls foèkok gksus ds ekeys esa l{ke çkfèkdkjh ls vius ifr dh e`R;q dk çek.k i= nsuk gksxk vkSj rykd'kqnk gksus ds ekeys esa fu;ekuqdwy rykd dk lcwr ¼l{ke U;k;ky; dh

[2023/RJJD/016314] (13 of 21) [CW-16192/2022]

fMØh vFkok dkth }kjk tkjh rykdukek e; nks LorU= lkf{k;ks ds 'kiFk i= lfgr] tks Hkh ykxw gks½ nsuk gksxkA

vi. tks O;fä fdlh iapk;r lfefr ;k fdlh ftyk ifj"kn ds vèkhu viuh vLFkk;h fu;qfä ds le; fofgr vk;q lhek ds Hkhrj Fks] muds fy, mijh vk;q lhek] iapk;r lfefr ;k ftyk ifj"kn ds vèkhu muds }kjk dh x;h lsok dh dkykofèk rd f'kfFkyuh; gksxhA

vii. ,sls HkwriwoZ dSnh ds ekeys esa tks mldh nks"kflf) ls iwoZ fdlh Hkh in ij vfèk"Bk;h vkèkkj ij iapk;r lfefr o ftyk ifj"kn ds vèkhu lsok dj pqdk gS vkSj bu fu;eksa ds vèkhu og fu;qfä dk ik= gks ml ij Åijh vk;q lhek ykxw ugha gksxhA

viii. ,sls HkwriwoZ dSnh tks viuh nks"kflf) ls iwoZ vfèkd vk;q dk ugha Fkk vkSj bu fu;eksa ds vèkhu fu;qfä dk ik= Fkk] dkjkokl dh vofèk ds ckcr dkykofèk rd f'kfFkyu ns; gSA

ix.- fu;e 259 ds mifu;e 5 [k ds vèkhu gS.MiEi fefL=;ksa ds :i esa fu;qä O;fä;ks ds fy;s dksbZ Åijh vk;q lhek ugha gksxhA c'krZs ,sls O;fä;ksa us vfèkokf"kZdh dh vk;q çkIr ugha dh gSA

x. jktLFkku fu%'kätu O;fä;ksa dk ¼leku volj] vfèkdkjksa dk laj{k.k vkSj iw.kZ Hkkxhnkjh½ fu;e 2011 ds çkoèkkuksa ds vuqlkj lkekU; oxZ @ vU; fiNMk oxksZa rFkk ,[email protected],l-Vh- ds fodykax vH;fFkZ;ksa dks Åijh vk;q lhek esa Øe'k% 10] 13 o 15 o'kZ dh NwV ns; gSA

xi. dk;ZØe vfè[email protected];d dk;ZØe vfèkdkjh] ofj"B rduhdh lgk;d çksxzkej] lgk;d ys[kkfèkdkjh] dfu"B rduhdh lgk;d] dfu"B vfHk;Urk] xzke jkstxkj lgk;d MkVk ,UVªh vkijsVj] dfu"B fyfid] ys[kk lgk;d] leUo;d] vkbZ bZ lh- leUo;d çf'k{k.k] leUo;d i;Zos{k.k rFkk dEI;wVj vkijsVj foFk e'khu ¼fu;kstu vfHkdj.k ds ekè;e ls yxs gqvksa ds flok;½ ds :i esa ;k lefUpr ty xzg.k çcUèku dk;ZØe @ jk"Vªh; ty xzg.k fodkl dk;ZØe @ Mh-Mh-ih- @ Mh-ih-,-ih-

ds vUrxZr ty xzg.k fodkl ny ds vfHk;kfU=dh] --f"k] i'kqikyu ;k lekt foKkuh lnL; vFkok fueZy Hkkjr vfHk;ku ¼lEiw.kZ LoPNrk dk;ZØe½ ds vUrxZr ftyk leUo;d [email protected]] Cykd [email protected][kkdkj ;k dEI;wVj @ ,e-vkbZ-,l- vfllVsaV ds in ij lafonk vkèkkj ij yxkrkj dk;Z dj jgs fdlh O;fä ds fy;s mi;qä of.kZr Åijh vk;q lhek] mlds }kjk dh xbZ lafonk vkèkkfjr dkfeZd fu;kstu ds le; jkT; lsok esa vk;q lhek ds vUrxZr Fks ml fLFkfr esa dfu"B fyfid dh HkrÊ ds nkSjku vk;q lhek esa Lohdkj fd;s tk;saxs ¼dkfeZd foHkkx dh vkbZ-Mh-la[;k 16 fnukad 8-1-2013 ls vuqeksnukuqlkj½A

[2023/RJJD/016314] (14 of 21) [CW-16192/2022]

uksV %& ¼1½ mijksä iSjk ds çkoèkku ¼i½ ls ¼x½ rd ij of.kZr vk;q lhek esa NwV ds çkoèkku Non cumulative gSA vFkkZr vH;fFkZ;ksa dks mijksä of.kZr fdlh Hkh ,d çkoèkku dk vfèkdre vk;q lhek esa NwV dk ykHk fn;k tk;sxkA ,d ls vfèkd çkoèkkuks dks tksM+dj NwV dk ykHk ns; ugha gksxkA

¼2½ mijksäkuqlkj vk;q lhek esa NwV dk ykHk l{ke çkfèkdkjh ls tkjh çek.k i= çLrqr djus ij gh miyCèk gksxkA" It is true that at the time of issuance of the Advertisement

for filling up the vacancies of L.D.Cs, the petitioners were

performing the duties on different posts with the respondent-

Department for more than five years on contractual basis, thus,

their candidature was required to be considered by the

respondents in pursuance of the Advertisement issued. However,

the candidature of the petitioners for grant of appointment is

required to be considered in accordance with the Rules governing

the recruitment and appointment.

The main contention of the learned counsel for the

petitioners is that the petitioners are entitled for age relaxation on

two counts:

(i) for not making the recruitment for three years preceding 2013;

and

(ii) serving the respondents on contractual basis for a period of

five years is required to be considered in accordance with the

provisions governing the field on the subject.

For ready reference, Rule 265 of Rajasthan Panchayati Raj

Rules, 1996 is reproduced hereunder:-

"Rule 265. Age.-A candidate for direct recruitment must have attained the age of eighteen years and must not have attained the age of [thirty five] years on the first day of January

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following the last date fixed for receipt of applications: Provided that:-

[(1) The upper age limit for a male candidate belonging to Scheduled Caste or a Scheduled Tribe or Other Backward Classes or women candidates belonging to general category shall be relaxed by five years.

(ia) The upper age limit for women candidates belonging to Schedule Caste or Scheduled Tribe or Other Backward Classes shall be relaxed by 10 years.]

(ii) The upper age limit for ex-servicemen shall be fifty years,

(iii) The upper age limit for persons already working as Secretaries of Panchayats shall be relaxable upto the period of service rendered as a Panchayat Secretary subject to a maximum limit of three years,

(iv) There shall be no age limit in the case of widows and divorced women, Explanation - In the case of widow, she will have to furnish a certificate of death of her husband from the competent authority and in the case of a divorcee, she will have to furnish the proof of divorce,

(v) The upper age limit for persons who were within the prescribed age limit on their temporary appointment under a Panchayat Samiti or a Zila Parishad shall be relaxable upto the period of service rendered by them under Panchayat Samiti or a Zila Parishad,

(vi) The upper age limit mentioned above shall apply in the case of an ex-prisoner, who had served under the Panchayat Samiti's and Zila Parishads on a substantive basis on any post before his conviction and was eligible for appointment under these rules,

(vii) The upper age limit mentioned above shall be relaxed by a period equal to the term of imprisonment served in the case of an ex-prisoner, who was not over- age before his conviction and was eligible for appointment under these rules. [(viii) The candidate who crossed the upper age limit after 1-1-

1999, shall be eligible for recruitment as Primary and Upper Primary School Teacher (General Education/Special Education) in Government Service upto 23-5-2007.]

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[(ix) There shall be no age limit for persons appointed as Hand Pump Mistries under sub- Rule (SB) of Rule 259 provided such persons do not attain the age of superannuation.] [(x) If a candidate would have been entitled in respect of his/her age for direct recruitment in any year in which no such recruitment was held, he/she shall be deemed to be eligible in next following recruitment, if he/she is not over age by more than 3 years.] [(xi) the upper age limit mentioned above, for the person who is continuously working on contract basis under any scheme of the Department of Rural Development and Panchayati Raj as Junior Technical Assistant, Junior Engineer, Gram Rozgar Sahayak, Data Entry Operator, Computer Operator with Machine (except engaged through placement agency), LDC, Lekha Sahayak, Co- ordinator IEC, Co-ordinator Training, Co- ordinator Supervision or on any post, shall be relaxed by a period equal to the service rendered by him, subject to maximum of 5 years.]"

A bare perusal of the aforequoted Rule makes it abundantly

clear that a person who has attained the age of 18 years and must

not have attained the age of 35 years on the first day of January

following the last date fixed for receipt of applications will be

entitled for appointment on the post advertised by the State,

however, certain provisos prescribe the upper age limit for grant of

relaxation in the age.

The Rule itself takes care of the situation that if the State

fails or is unable to conduct the recruitment process for some

years (longer period), proviso (x) to Rule 265 of the Rules of 1996

provides for age relaxation to such candidates to the extent of

three years in upper age limit. In the present case, since the

recruitment was not conducted for a period of three years,

therefore, the persons similarly situated to the petitioners were

entitled for grant of relaxation to a period of three years.

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Simultaneously, proviso (xi) also provides for grant of maximum

five years' period of age relaxation to the persons who are

working on different posts in the State of Rajasthan in different

departments on contract basis. The Rule does not prescribe

anything, whereby it can be said that if a candidate is falling in

more than one category, the age relaxation can be granted

considering two different proviso for the benefit of that candidate.

The Rule envisages the conditions in which a person is entitled to

age relaxation and if benefit is granted to a person who is falling

in a particular category, he cannot ask for the operation of another

category to his benefit/credit.

For example, if a Scheduled Caste woman candidate is

working with the respondent-Department on contractual basis,

then as per the contention of the learned counsel for the

petitioners, she is required to be given relaxation in upper age

limit of 18 years (10 yrs. for SC Category, 5 yrs. for working on

contractual basis & 3 yrs. for not conducting recruitment) i.e. upto

the age of 53 years (35 yrs. + 10 yrs. + 5 yrs. + 3 yrs.). The

intention of the legislature is not to be taken in such a fashion that

it breaches the basic and fundamental principle of consideration of

the age as provided in the rule itself which clearly prescribes the

age of a candidate to be considered between 18-35 years only and

proviso provides for certain relaxations in certain conditions.

Thus, this Court is of the view that the recruitment process

undertaken by the respondents is required to be adhered to and

governed under the set of rules, more particularly with respect to

the relaxation of age as per Rule 265 of the Rajasthan Panchayati

Raj Rules, 1996. The petitioners who are getting the age

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relaxation as per their working in the State Government for a

period of five years on contract basis are entitled to get relaxation

in upper age limit of five years and not for any additional benefit

of upper age limit to the extent of three years for non-holding of

recruitment process by the State for three years.

The view taken by this Court is fully supported by the

Division Bench of this Court in the case of Alsa Ram Meghwal

(supra), whereby the Division Bench in identical situation held as

under:-

"14. As a general rule, in terms of Rule 13, the candidate for direct recruitment to the post to be filled in by Combined Competitive Examination must have attained the age of 21 years and must not have attained the age of 33 years. But then, as noticed hereinabove, under provisos (1) to (14) to Rule 13, while extending the benefit of relaxation in age in respect of the specified classes or relaxing the age limit as such, a different upper age limit has been prescribed for distinct classes. Apparently, the relaxation in age by 5 years in case of woman candidate and candidates belonging to the Scheduled Castes and Scheduled Tribes of Rajasthan, relates to the upper age limit as prescribed under Rule 13 in respect of the candidates in general, aspirant to appear at the Combined Competitive Examination and the same cannot be read as provisos to the various provisos to Rule 13 of the Rules, which prescribe a different upper age limit for the classes specified. It is pertinent to note that under Rule 13, the upper age limit of 40 years has been prescribed not only for the persons serving in connection with the affairs of the State or Panchayati Samiti and Zila Parishad in substantive capacity, who are entitled to compete for recruitment to the post against 7% vacancies reserved under proviso to Rule 4(1) of the Rules but

[2023/RJJD/016314] (19 of 21) [CW-16192/2022]

also, for the persons serving in the State Public Undertakings and Corporations in substantive capacity. Thus, it is apparent that in relaxation of the main provision, providing for the upper age limit as 33 years, for the aforesaid in-service candidates, who have spent a considerable period of their life in serving the State Government or its undertakings/organisations, treating them to be a distinct class, different upper age limit has been prescribed by incorporating proviso (6) to Rule 13, so as to give them a chance to improve their career.

15. In the considered opinion of this court, a different upper age limit having been prescribed for the in- service candidates, as aforesaid, treating them to be a distinct class, no distinction can be made between Government servants so as to make them entitled to claim relaxation under proviso (1) or (14) to Rule 13, being member of Scheduled Castes, Scheduled Tribes or Other Backward Classes, as the case may be. We are of the considered opinion that if the interpretation of Rule 13, as suggested on behalf of the appellant is accepted, it will amount to reading something in the rule, which is not there. It is well settled that the function of the court is only to expound the law and not to legislate and therefore, it is not possible to interprete the Rule 13 of the Rules, in the manner suggested on behalf of the appellant, so as to extend the applicability of relaxation in age as provided for under proviso (1) to Rule 13 of the Rules to the distinct classes as specified under various provisos to Rule 13 of the Rules. Thus, the upper age limit for the in-service candidates specified, aspiring to appear at Combined Competitive Examination, either against vacancies reserved in terms of Rule 4 (1) of the Rules or the remaining vacancies, remains the same i.e. 40 years, without there being any further entitlement for relaxation in age in terms of proviso (1) to Rule 13 of the Rules.

16. For the aforementioned reasons, we are completely in agreement with the learned Single

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Judge that the relaxation in age by 5 years, as provided for under proviso (1) to Rule 13 of the Rules, in case of woman and candidates belonging to Scheduled Castes and Scheduled Tribes, is only qua the upper age limit prescribed for the candidates in general and such relaxation is not available to the persons serving in connection with affairs of the State in the substantive capacity, in whose respect, a different upper age limit has been prescribed under proviso (6) to Rule 13 of the Rules.

17. In view of the interpretation of Rule 13 as aforesaid, the explanatory note appended to clause (6) of the advertisement by RPSC, restricting the scope of relaxation in age under only one clause out of the various clauses specified, is absolutely in conformity with the mandate of Rule 13 of the Rules and cannot be said to be illegal.

18. In the result, this intra court appeal fails, it is hereby dismissed. No order as to costs."

It is well settled that when there is variance in the

Advertisement and in the Statutory Rules, it is the Statutory Rules

which take precedence. In Malik Mazhar Sultan V. U.P. Public

Service Commission reported in 2006 (9) SCC 507, Hon'ble

the Supreme Court clarified that an advertisement would not

create a right in favour of applicants who act on such

representation. The Court considered the eligibility criteria for the

post of Civil Judge (Junior Division) under the U.P. Judicial Service

Rules, 2001 against an erroneous advertisement issued by the

U.P. Public Service Commission and held:

"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

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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."

The same view was taken by Hon'ble the Supreme Court in

the case of Ashish Kumar Vs. State of U.P. reported in

(2018) 3 SCC 55 and recently in the case of The Employees

State Insurance Corporation Vs. Union of India & Ors. (Civil

Appeal No.152/2022) decided on 20.01.2022.

So far as the contention of learned counsel for the petitioners

that certain persons have been appointed by the State

Government de hors the rules is concerned, the State Government

has already taken note of the situation and is proceeding against

such candidates who have been appointed de hors the rules. Thus,

no further direction is necessitated in this regard.