Matu Ram vs State and Others

Dinesh Maheshwari, J.—Having regard to the submissions made, while allowing the application for early hearing (I.A.No. 3900/2012), the matter has been considered finally at this stage itself. The petitioner, having offered his candidature for selection to the post of Prabodhak pursuant to the advertisement dated 31.05.2008 (Annexure-5), has filed this writ petition stating the grievance that though he was called for interview but while preparing the select list for Hanumangarh District, the concerned Education Officer chose not to declare his result. With the submissions that he made the representations to the respondent No. 3 on 30.09.2008 and 15.10.2008 seeking declaration of result but of no avail, the petitioner has prayed for the following reliefs:--

A] By an appropriate writ order or direction, the respondent No. 3 may kindly be directed to declare the result of the petitioner.

B] By an appropriate writ order or direction, the action of the respondents is not declaring the result of the petitioner and selecting him for appointment on the post of Prabodhak may kindly be declared illegal, unjust and arbitrary.

C] By an appropriate writ order or direction the respondents authorities may kindly be directed to consider the petitioner within age as per Rules 13 of the Rules of 2008 and extend him appointment on the post of Prabodhak.

D] Cost of litigation may also kindly be awarded to the petitioner.

The petitioner submits that result has been withheld while considering him ineligible essentially with reference to the requirement concerning the age limit but then, he was within the age limit when he joined as Shiksha Sahayogi. According to the petitioner, though Rule 13 of the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 (''Rules of 2008'') provides for upper age limit for the post of Prabodhak as 35 years but, as per proviso (i) to Rule 13, he is entitled for 5 years'' age relaxation being the member of Other Backward Class (''OBC'') and then, as per proviso (v) to Rule 13, he would be deemed to be within the age limit for being within such limit when initially engaged as Shiksha Sahayogi.

The respondents have contended in their reply that as per the applicable circulars, the maximum age prescribed for appointment on a post under the Government was 31 years and the petitioner, who had crossed the age of 31 years at the time of initial engagement as Shiksha Sahayogi, is not entitled to be considered within age limit for appointment to the post of Prabodhak. It has also been contended during the course of submissions that in any case, the petitioner is not entitled to any relief now in this writ petition as the respondents have completed the process of selection and all the vacancies have been filled up.

The learned counsel for the petitioner has referred to a decision of the coordinate Bench in the case of Man Singh Rawat vs. State of Rajasthan & Ors., 2012 (1) CDR 10 (Raj.) and another decision of this Court in CWP No. 8177/2008: Jagdish Prasad vs. State of Rajasthan & Ors., decided on 14.03.2012 and submitted that the case of the petitioner stands squarely covered thereby.

After having heard the learned counsel for the parties and having examined the record with reference to the law applicable, this Court is clearly of opinion that this writ petition deserves to be allowed with necessary directions.

The relevant part of Rule 13 of the Rules of 2008, including provisos (i) and (v) read as under:--

Age.--A candidate for direct recruitment to a post enumerated in the Schedule must have attained the age of 23 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:

Provided-

(i) that the upper age limit mentioned above, shall be relaxed by 5 years in the case of male candidates belonging to the Scheduled Castes, Scheduled Tribes and the Other Backward classes.

(v) that the person serving under the educational project in the State viz. Rajiv Gandhi Pathshala/Shiksha Karmi Board/Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/District Primary Education Programme shall be deemed to be within age limit, had they been within the age limit when they were initially engaged even though they may have crossed the age limit at the time of direct recruitment.

In the case of Smt. Kamla Kumari vs. State of Rajasthan & Ors., SAW No. 436/2009, decided on 16.04.2010, the provisions aforesaid came up for interpretation before a Division Bench of this Court, though in the context of an argument other way round by the candidates who had crossed the upper age limit for the post of Prabodhak at the time of their initial entry in other projects. The Court, while not accepting the arguments of such petitioners, pointed out in relation to proviso (v) to Rule 13 that,--

The proviso is obviously not intended to provide age relaxation indiscriminately to all the persons engaged in the projects. The relaxation has been provided only to the persons who, at the time of their initial engagement in the project, were within the age limit that has been prescribed for the purpose of recruitment in question.

And, the connotation of the expression "had they been within the age limit" as occurring in proviso (v) to Rule 13 was explained as under:--

The expression "age limit" as occurring in the said proviso refers, undoubtedly and only, to the age limit as prescribed in the principal provision of Rule 13, i.e., 35 years; and not to any other age limit. The relaxation has been provided to the persons who have crossed the age limit prescribed by Rule 13 ibid at the time of direct recruitment if, and only if, they are serving in any of the named projects and they had not crossed the said age limit prescribed by Rule 13 at the time of initial engagement in the project. The expression "had they been within age limit" does not refer to the age limit, if any, for the purpose of entry into such educational projects but, in view of its very purpose and context, refers to the age limit as provided for the recruitment in question i.e., recruitment to the post of Prabodhak.

Following the aforesaid interpretation by the Division Bench, a co-ordinate Bench has decided Man Singh Rawat''s case (supra) where the petitioner was about 39 years of age at the time of initial entry as Para Teacher and, being the member of OBC, was found within age limit for the purpose of Rule 13 ibid. The order as passed in Man Singh Rawat''s case reads as under:--

The case of the petitioner is that in view of Division Bench judgment of this Court in Smt. Kamla Kumari & 2 Ors. vs. State of Rajasthan & Ors., the respondents are required to consider his candidature for the purpose of appointment as Prabodhak, by extending relaxation in the maximum age limit as per Proviso (v) of Rule 13 of the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 (hereinafter referred as ''the Rules of 2008''). It is stated that the petitioner entered in the services at the first instance on 01.7.1999 being appointed as Para Teacher with Rajiv Gandhi Pathshala, Pabu Ji Ki Dhani, Gram Panchayat, Bhagwanpura. At the time of appointment as Para Teacher, his age was 39 years and one month, therefore, a relaxation as per Proviso (v) of Rule 13 to the Rules of 2008 should have been given to him.

The Proviso (v) of Rule 13 provides that a candidate for direct recruitment to a post enumerated in the Schedule must have attained the age of 23 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, provided that the person serving under the educational project in the State viz. Rajiv Gandhi Pathshala/Shiksha Karmi Board/Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/District Primary Education Programme shall be deemed to be within age limit, had they been within the age limit when they were initially engaged even though they may have crossed the age limit at the time of direct recruitment.

The case of the respondents is that the petitioner at the time of appointment as Para Teacher was not within the age limit and, therefore, he is not entitled for getting any relaxation as per Proviso (v) of Rule 13 of the Rules of 2008. The Division Bench of this Court in the case of Smt. Kamla Kumari & 2 Ors. (supra) has explained that the expression "age limit" as occurring in the said proviso refers undoubtedly the age limit as prescribed in Rule 13 and i.e. 35 years.

In view of the judgment aforesaid the maximum age limit of the petitioner as on 1.7.1999 is required to be determined as per the age limit prescribed under Proviso (v) of Rule 13 of the Rules of 2008 by taking into consideration the age limit aforesaid with relaxation of five years, for which the petitioner is entitled being a member of Other Backward Class. The petitioner on getting the relaxation of five years, acquires the age of 39 years and one month, meaning thereby he is to be treated within the age limit given under Rule 13, as such, he is certainly having a right to be considered for appointment as Prabodhak under the Rules of 2008.

Accordingly, this petition for writ is allowed. The respondents are required to consider the candidature of the petitioner for the purpose of appointment as Prabodhak by treating him within the age limit prescribed for the post concerned. No order as to costs.

In Jagdish Prasad (supra), after noticing the aforesaid decisions in Smt. Kamla Kumari and Man Singh Rawat, this Court has found that the principles therein directly apply to the case of the petitioner who belonged to OBC category and who was about 37 1/2 of age at the time of initial entry in the service as Shiksha Sahayogi. The case of the present petitioner, whose date of birth is 13.07.1961 and who initially entered as Shiksha Sahayogi on 01.07.1999, stands practically on the same footings. With operation of provisos (i) & (v) of Rule 13 ibid., the petitioner, who belongs to OBC category and who was about 38 years of age at the time of initial engagement as Shiksha Sahayogi, would be deemed to be within the age limit for the purpose of the recruitment in question. The suggestion of the respondents that he was not within the age limit for the purpose of Rule 13 ibid. remains untenable and stands rejected. The respondents were not justified in withholding the result of the petitioner and then suggesting him being overaged for the purpose of the recruitment in question.

The suggestion of the respondents about filling up of vacancies during the pendency of this writ petition does not operate against the petitioner nor could he be declined the requisite relief on such a suggestion. In fact, the candidature of the petitioner was not rejected and rather, he was called for interview; but his result was withheld on the baseless propositions adopted by the respondents regarding age limit. The respondents cannot be permitted to suggest annulment of the existing rights of the petitioner for their own acts and omissions.

In view of the above, the petition is required to be, and is, hereby allowed. The respondents are directed to declare the result of the petitioner while considering him within the age limit as per Rule 13 of the Rules of 2008 and then, to pass appropriate order in accordance with law. In the interest of justice, it is made clear that though the respondents shall not decline the requisite relief to the petitioner only on the suggestion that during the pendency of this writ petition they had allegedly filled up the posts of Prabodhak but then, the petitioner shall not be entitled to any payment for the period he has not worked. No costs.