Ashok Kumar Sharma And Ors vs State And Ors

Arun Monga, J

Petition herein is seeking quashing of rejection of the petitioners' applications on the ground of being overage. Further, the petitioners sought directions to the respondents to offer appointment to the post of Compounder/Nurse Junior Grade, while granting age relaxation upto 50 years as per the advertisement dated 07.06.2013. Additionally, the petitioners requested to be treated at par with departmental employees, if they stand in merit alongwith with all consequential benefits.

Briefly speaking, relevant facts of the case are that:

2.1. The respondents issued an advertisement for the post of Junior Ayurved Nurse-Compounder dated 15.09.2007. The petitioners, having the requisite qualification as prescribed, participated in the selection process. After scrutinizing the application forms and documents, the respondents subjected the petitioners to selection committee. The selection committee, after interviewing the petitioners and finding them eligible, recommended their names. Subsequently, the petitioners were issued appointment orders purely on a contractual basis. Since the date of their appointment, the petitioners have been discharging their duties on the said post.

2.2. The respondents issued an advertisement dated 07.06.2013 whereby applications are invited for the post of Compounder Nurse Junior Grade under the Rules of 1966 and amended Rules. The petitioners having the requisite qualification applied for the same. Thereafter, petitioners were called for documents verification.

2.3. The respondents uploaded the status of the candidates mentioning the remark overage. It is stated that the respondents have failed to extend the benefit of age relaxation to the petitioners as mentioned in Clause 6(5) of the advertisement, i.e. by treating the petitioners at par with departmental employees working as Compounder/Nurse Junior Grade.

2.4. Since the nature of duties discharged by the petitioners is akin to that of the regularly selected candidates, the respondents ought to have considered the upper age limit of the petitioners as 50 years for the purpose of appointment to the post of Compounder/Nurse Junior Grade. The petitioners approached the respondent authorities to ventilate their grievances by submitting representation, but to no avail. Hence, this writ petition.

Defence taken by the respondents in their reply is that :

3.1. As per the advertisement, the age of the candidate should be between 18-35 years as of 01.01.2014, and candidates working under the NRHM Scheme will be given a relaxation of upto maximum 5 years, equal to the period of service under the said Scheme. It is submitted that as per Scheduled annexed to the writ petition, the age of all the petitioners on 01.01.2014 ranges from more than 43 years to more than 48 years. Therefore, even after giving the 5-years relaxation specifically provided for candidates working on contract as Nursing/Compounder under NRHM Scheme, none of the petitioners is within the maximum age prescribed in the advertisement. Thus admittedly all the petitioners are over age and ineligible for appointment to the said post.

3.2. The petitioners were overage even on the date of issuance of advertisement dated 15.09.2007, as is evident from the age of the petitioners mentioned in the Schedule annexed to the writ petition. Clause 6(5) of the Advertisement states that as per amendment made to Rule 10 through the Notification dated 08.04.2010, departmental employees who meet eligibility requirement for appointment to the post of Compounder/Nurse Junior Grade shall be eligible for appointment to the said post upto the age of 50 years. Thus, this benefit is available only to those departmental employees, who are working in substantive capacity in the Department and meet the eligibility criteria for appointment to the post of Compounder/Nurse Junior Grade.

In the aforesaid backdrop, I have heard learned counsel for the respective parties and have perused the case file.

First and foremost, I may observe at the very outset that the relief sought by the petitioners qua the directions to be issued to the respondents to appoint them on the post by relaxation of the age cannot be accorded to them for the simple reason that it is a conceded position that their applications to participate in the competition were rejected at the relevant time vide Annexure-8 pertaining to an advertisement issued in the year 2013. The position thus emerges is that the petitioners have not participated in the competition and yet seek the benefit of appointment. The same is akin to a situation where an athlete seeks that he be given a gold medal by declaring him as winner without participating in the race. Such a relief, which is being sought by the petitioners herein cannot, therefore, be granted in the absence of determination qua their merit. As regards their eligibility, it appears that their applications were wrongly rejected as the position is very clear from the work certificate issued by the competent authority, which clearly mention that they have been working with NRHM. Neither the certificates are disputed nor the competence of the authority, who has issued the same.

In view thereof, the rejection of the candidature on the ground of their being over age is held to be illegal as they were entitled to the age relaxation in terms of condition (d) of the advertisement, which has been reproduced hereinbelow:-

“d. Relaxation up to 50 years has been extended to departmental employees who are working on the post of Compounder/Nurse Junior Grade.”

As regards direction sought for granting relaxation of age, vagaries of litigation are such that by sheer passage of time all of them have turned above 50 even if they are given relaxation.

I am unable to persuade myself with the arguments canvased by learned counsel for the petitioners that since the petitioners had approached this Court by filing the instant writ petition, therefore the time taken before this Court be excluded while granting the age relaxation to them and, therefore, even if they are above 50 years, their case be considered by granting them further relaxation of as many years as the petition is pending before this Court.

Once again the said argument is being noted only to be rejected for the reason that it was open to the petitioners to seek such a relief at the interim stage when the petition was filed by filing appropriate application. Moreover, it transpires that after the advertisement in question from the year 2013, subsequent selection processes qua the same post were carried out by the respondents by issuing advertisements in the years 2018 and 2021. It was open to the petitioners to seek the relief of provisional participation in such subsequent selection processes by filing any appropriate application. None of that seems to have been resorted and it appears that the petitioners themselves acquiesced to the fait accompli. Thus, no relief can be granted at this stage merely because of pendency of the proceedings before this Court.

On both counts therefore the relief is rendered completely meaningless at this stage.

In result, the petition is dismissed.

Pending application(s), if any, stand(s) disposed of.