Basant Kumar and another vs State of Uttarakhand and another

Petitioners have approached this Court seeking the following relief :-

"(i) Issue writ rule or direction in the nature of mandamus directing to the respondent no.2 to recommend the name of the petitioners for the appointment for the post of Uttarakhand Civil Services Executive Branch or other categories to the respondent no.1 in view of their meritorious position and by extending the benefit of Notification dated 31.01.2014 by which the State Govt. has enforced the Rules known as the Uttarakhand Recruitment to Services (Age Limit) Rules, 2014 and treating them within the age limit prescribed under rules on the first day of July of the calendar year related to the vacancies for direct recruitment advertised by the Public Service Commission."

Briefly put, the case of the petitioners is as follows:-

Petitioner No.1 is working as Lecturer (Physics) in Government Inter College, Baijro, District Pauri Garhwal and petitioner No. 2 is working as Lecturer (Political Science) in Government Inter College, Saliyana, Karnprayag, District Chamoli. Uttarakhand Public Service Commission issued an advertisement dated 11.03.2011 inviting applications from eligible candidates for Uttarakhand Civil Services Executive Branch and other categories likewise. It is stated that as per the condition of the advertisement, the maximum age limit is 38 years as on 1st July, 2011 for the post of SDM, whereas, for the remaining posts, the maximum age limit is 35 years. The first petitioner was 35 years, 1 month and 15 days, whereas, the second petitioner was 35 years, 9 months and 8 days at the time of issuance of the advertisement. Call letters were issued to the petitioners and they appeared for the preliminary examination. Both the petitioners were successful in the written test and they were called for the main examination. There was a rejection list issued on 02.02.2014 by the Public Service Commission. It is the case of the petitioners that their names were not included in the list. Petitioners were shown successful for the post of Vice Principal along with other posts displayed separately in the main result. Petitioners preferred preference form and preference sheet online for interview. In the preference sheet, petitioner No.1 preferred chronologically for SDM, Vice Principal, Tax Commissioner, Treasury Officer and petitioner No. 2 preferred chronologically for SDM, Tax Commissioner, Treasury Officer, Dy. S.P. and Vice Principal.

Annexure A-3 rejection list was issued of the candidates who were not found suitable. Annexure A-4

selection list was issued but the names of the petitioners were not shown in the list. The cut off marks was issued on 29.08.2014 for the respective posts. For the post of Vice Principal, cut off marks, for general candidates, is 1003.8529. The 1st petitioner secured 1052.3710 marks whereas the 2nd petitioner had secured 1025.231 marks respectively. It means that both the petitioners secured more marks in comparison of the last select candidate and, therefore, Public Service Commission has to recommend the candidature of the petitioners. Then, there is a reference to Annexure-5 Rules known as Uttarakhand Recruitment to Service (Age Limit) Rules, 2014. Petitioners contend that as per the said Rules, the upper age limit has been enhanced to 45 years.

Accordingly, the petitioners are before us.

Counter affidavit is filed. To this, rejoinder affidavit is also filed.

We heard Shri Kishore Kumar, learned counsel for the petitioners, Shri B.M. Pingal, learned counsel for the respondent No.1 and Shri B.D. Kandpal, learned counsel for respondent No.2/ Public Service Commission.

Shri Kishore Kumar, learned counsel for the petitioners would contend that there is no dispute that the posts where the age limit is 35 years, both the petitioners were overage, and, therefore, not eligible. But he would seek to harness Annexure-5 Rules by which, according to him, maximum age limit has been enhanced from 35 years to 40 years. The answer in this regard by Shri H.M. Bhatia, learned Brief Holder for the State and Shri B.D. Kandpal, learned counsel for respondent No. 2 is that the said Rules were enacted only in the year 2014 and they are expressly prospective in nature and they do not apply to the advertisement, in question, as the advertisement which we are concerned is of the year 2011.

We find force in the said contention of the respondents. The amendment in the Rules by which the maximum age limit has been enhanced came into force only in the year 2014. Age is a qualification. The principle is that a candidate for the selection must possess the qualification, at least, as on the last date prescribed for the submission of the application. Therefore, we cannot give prospective effect to the Rules and render the petitioners qualified on the strength of subsequent Rules.

We also see no merit in the contention of Shri Kishore Kumar, learned counsel for the petitioners with reference to the said self-same Rules which provides that it will have overriding effect as contained in the other Rules. Apparently, the purport of these Rules, giving overriding effect, is only to provide for the maximum age limit in spite of what may be provided in the individual sets of Rules. Therefore, it cannot advance the case of the petitioners.

As far as the post of Deputy Collector is concerned, the case of respondents appears to be that the petitioners were indeed considered as they fall in the Revenue Branch. Under the Rules, the relaxation upto 38 years was given on the basis that there was no recruitment done for three years. In other words, when there was no recruitment done in a year, it was taken into consideration that an appropriate relaxation was given in accordance with the mandate of the Rules which provides for the same. It is accordingly that for the Executive Branch when there is no recruitment acting on the Rules and number of years where there is no recruitment, the age stood enhanced from 35 to 38 years. It appears that petitioners were, in fact, considered on the basis of their being within the age limit but they were not found to be eligible on merits. For the post of Vice Principal, though the petitioners may have attained the cut off marks, the fact of the matter is that petitioners were beyond the age provided and they were age barred. Shri Kishore Kumar, learned counsel for the petitioners would submit that persons in the Executive Branch and in other Branches are being treated differently as in so far as the Executive Branch is concerned, the age limit is enhanced to 38 years whereas it is not so done in respect of the other posts. The answer to this is that this is being done in the terms of the Rules. As already mentioned, when there is no recruitment in a year, the Rules contemplated giving relaxation.

Therefore, we see no merit in the writ petition. The writ petition is dismissed. No order as to costs.