Shabir Ali & Ors. vs State & Ors.

Petitioners claim relaxation of upper age limit for seeking appointment as Dental Surgeon in the Health and Medical Department. They claim to

be in service candidates working on adhoc/contractual basis from various dates. Vide notification dated 18.02.08 issued by respondent 2,

applications were invited for appointment as Dental Surgeons in the Health and Medical Education Department. The upper age limit prescribed for

seeking appointment to the said post was 37 years for direct recruits and 40 years for the persons who were already in service. The petitioners

admittedly on the basis of aforesaid notification could not seek appointment as they had crossed 40 years of age. They could claim appointment

only if the age was relaxed in their favour, which seems to have not been done, as a result of this, they are before this court.

They petitioners claim to have been appointed on adhoc basis on 30.11.2000 initially for a period of 89 days but this order has been continued

till date. On the day of notification, the petitioners were 41 years and some months old, They claim that the note appended to the aforementioned

notification regarding age indicates that the age could be relaxed in case of persons who posses exceptional qualification relevant in the concerned

subject. It is contended that because of their continuance on adhoc basis for more than eight years, they had exceptional qualification for purpose

of seeking relaxation in age. It is further contended by the petitioners that for inservice candidates, upper age limit of 45 years is provided under

Rule10 of the J&K Medical (Gazetted) Service Recruitment Rules, 1970.

On the other hand, stand of the respondents is that the petitioners are not eligible, to seek appointment, as they have already crossed the age of

40 years provided for the inservice candidates. The age relaxation cannot be provided by taking recourse to the note appended to the

aforementioned notification, as gaining experience on the post does not mean acquiring exceptional qualification. The qualification is to be acquired

not by experience but by qualifying certain courses. In nutshell, the case of the respondents is that they are not eligible for appointment and no

relaxation can be granted to them for relaxing the upper age limit.

I have heard the learned counsel for the parties and perused the record.

Before adverting to the controversy raised in this petition, it is important to take note of the fact that the appointments are required to be made

for the posts of Dental Surgeons in the Health and Medical Education Department. There are two services in the State; one is called Medical

Gazetted Service and the other is J&K Medical Education (Gazetted) Service. The schedule appended to the aforementioned rules indicates the

cadre strength and the designation of the persons who are borne on the cadre of both the services. The post of Dental Surgeon finds it place in the

J&K Medical (Gazetted) Service Recruitment Rules, 1970. The post of Dental Surgeon is ClassIV in the aforesaid schedule. There is no post of

Dental Surgeon in the J&K Medical Education Service. At serial No. 25 of ScheduleII appended to the J&K Medical Education (Gazetted)

Service Recruitment Rules, 1979, there are posts of Professor, Associate Professor, Assistant Professor and Lecturer in the subject of Dentistry.

There is no post of Dental Surgeon in the aforesaid schedule. The post of Dental Surgeon is borne on the cadre strength 'of J&K Medical

(Gazetted) Service.

Vide SRO 260 dated 14.08.2006, Medical Gazetted Service has been reconstituted and accordingly the rules have been framed thereafter. It is

now called as Jammu and Kashmir Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006. In the new rules, the upper age limit

provided for seeking appointment by a person who is in service, is the same as is provided under the General Rules. It is however, provided that in

case the post, which carries higher degree of specialization and or experience, the Government may prescribe higher age limit. The impost of the

aforementioned Rules reveals that upper age can be relaxed if a candidate has higher degree of specialization or experience.

The question that arises for consideration is whether the petitioners can claim to be the members of the aforesaid service. Two expressions have

been used; one is member of the service and other is inservice candidate in terms of Government Order No. 102GAD of 2007 dated 27.01.2007.

There is no general provision in the J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006 for relaxing the rules. However,

under Rule9 of the aforementioned rules, relaxation can be ordered in case a person has higher degree of specialization or experience. Admittedly,

in this case, higher age limit has not been provided in the notification. Rule5 indicates qualification and method of recruitments. It provides that no

person shall be eligible for appointment or promotion to any post, class, category or grade in the service unless he possesses qualification as laid

down in ScheduleII and fulfils the other requirements of recruitment as provided in the rules and orders for the time being in force. It emerges that

no person shall be appointed unless he possess requisite qualification as provided in the aforementioned rules. Rules emphasize that fulfillment of

requirements of rules Has to be followed. However, in case of persons with experience, the Government can provide upper age limit.

There is no provision in the J&K Medical (Gazetted) Service Recruitment Rules, 1970 and J&K Medical Health and Family Welfare

(Gazetted) Service Recruitment Rules, 2006 for relaxing of the rules. However, Rule11 of the said Rules deals with residuary matters, which

envisages that any matter not specifically covered by these rules or by regulations and orders applicable to the State Civil Services in general. So

the power to seek relaxation is traceable under Rule5 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956, which is

applicable to the State Service in general. Rule5 of the aforementioned rules is quoted hereinbelow:

Any of these rules made under them. May for reasons to be recorded in writing, relaxed by the government in individual cases if Government is

satisfied that a strict application of the rule would cause hardship to the individual concerned on conferred undue benefit on him.

The aforesaid rules envisages that for the reasons to be recorded, the Government can relax the rules if strict application of the same causes

hardships to the individual concerned or confers undue benefit on him. The import of the aforementioned rules clearly envisages that the

Government can relax strict application of the rule, which causes hardship to the individual. Power to relax age under the aforesaid rules cannot be

treated as wide power to relax the rules of recruitment. Now the question that arises for consideration in the present case is, whether relaxation of

upper age limit can be termed to be a condition of recruitment. In order to understand this expression, it is important to make mention of various

provisions of J&K Health and Family Welfare (Gazetted) Service Recruitment Rules, 2006. No persons shall be appointed to any post in the

service unless he:

i) ""possesses the qualification as laid down for the post in the schedule; and

ii) fulfils the requirements of recruitment as provided in the rules and orders for the time being in force.

The import of the aforesaid rules reveals that no persons shall be appointed until and unless he possesses the qualification as laid down for the said

post in the schedule and rules framed there under. Regarding the qualification, no relaxation can be permitted, which is clearly mandated by the

language of aforesaid rule itself.

The Government Order dated 27.01.2007 envisages that Contractual Appointees shall be deemed to be inservice candidates so far as upper

age limit prescribed for direct recruitment to Government Service is concerned, provided they subsist in contractual appointment as on the date of

issue of the advertisement by the Recruiting Agencies. The adhoc appointees are at higher pedestal than the Contractual Appointee. Particularly

when an adhoc arrangement is continued for a longer period of time. The petitioners can be construed to be inservice candidates. Regarding

method of recruitment, it provides two sources and no relaxation is permitted in this respect. Exception provided under this rule that in case of a

post which requires a higher degree of specialization and experience, the Government may prescribe a higher age limit. Since there is no other

power of relaxation of age contained in the rules, the application of Rule5 of the J&K Civil Service (classification, Control and Appeal) Rules,

1956 can be invoked in the present case. It can be invoked only in case where strict application of the rules causes hardship on the person seeking

relaxation. The power to relax the rules have to be analysized on the touch stone, as to whether hardship is caused to the person while applying the

rule strictly. Applying this principle in the present case, it is seen that the petitioners are inservice candidates and have been working on adhoc basis

since 2000. The posts were not advertised and the status of the petitioners as adhoc appointee continued. The State was required to advertise the

posts but the same was not done. The result of this was that when the posts were advertised, the petitioners had crossed the upper age limit of 40

years. This exfacie and clearly takes away the right of the petitioners to be appointed as Dental Surgeon on regular basis for all times to Come.

Failure on part of the State to advertise the posts of Dental Surgeons before the petitioners could cross the upper age limit, is the basis for granting

relaxation in such matters. It may be stated that there can be no relaxation for basic and fundamental rules of recruitment. Granting of relaxation in

age, cannot be construed to be a basic and fundamental rules of recruitment. It is revealed from the notification that various ages have been

prescribed for various categories of people for the same post, which is not the case regarding the basic qualification and method of recruitment.

So, granting ofrelaxation in age is not basic and fundamental rule of recruitment and relaxation in this respect can be made.

It has been reported by Mr. D. C. Raina, Sr. Advocate appearing for the respondents that the selection process has not been concluded till

date.

I, therefore, direct the respondents to accord consideration for the grant of relaxation in upper age limit in case of the petitioners and conduct

their interview for the ensuing selection of Dental Surgeons.

Writ petitions alongwith connected CMPs are allowed.