Usha Kumari vs The State of Bihar and Others

Ramesh Kumar Datta, J.—The interlocutory application has been filed for impleading the applicants as intervenor-respondents to intervene in support of the stand of the respondents. The applicants are the persons who have been selected for appointment to the post of Village Level Worker having qualified as per the selection process.

In view of the fact that the result of this writ petition may affect the said applicants, the intervention application is allowed and I.A.No. 3630 of 2002 is accordingly disposed of.

Heard Mr. Sarvadeo Singh, learned Counsel appearing for the petitioner, Mr. Anand Kumar Bhaskar, learned Counsel appearing for the intervenor-respondents and learned J.C. to Additional Advocate General No. 1.

The petitioner has approached this Court for a direction upon the respondent No. 4, District Magistrate, Darbhanga to recommend her name for appointment to the post of Village Level Worker. The petitioner had applied for the said post pursuant to an advertisement published in the Hindi newspaper ''Aaj'' on 14.12.1994 inviting applications from eligible candidates for various posts including that of Village Level Worker. The last date for submitting application was given as 31.12.1994 and as per the eligibility criteria the candidate of general category was required to be between 18 and 30 years of age on 30.11.1994. The date of birth of the petitioner being 5.4.1976, she had crossed the minimum age on 30.11.1994 and she applied for being selected, After the selection process a merit list was prepared in which the last named candidate Vijay Kumar Singh has been shown as having secured 58.19% marks whereas it is stated in the second supplementary counter affidavit filed on behalf of the respondents that the petitioner had secured 64 % marks. However, the petitioner has been held to be not eligible for appointment on the ground that she was under age on the basis of Rule 7(1) of the Jansevak and Village Level Workers (Appointment and Service Conditions) Rules, 1987.

The said rule provides that the general category candidate (with which the present writ petition is concerned) should be at least 18 years and maximum 30 years old on the first January of the year of appointment. It is accordingly, the case of the respondents that the date of eligibility for appointment has to be considered as 1.1.1994 and on the said date clearly the petitioner was under age by 3 months 5 days.

Learned Counsel for the petitioner submits that since according to the advertisement the cut off date was 30.11.1994 and the petitioner''s date of birth was 5.4.1976 therefore, the petitioner was more than 18 years of age in terms of the advertisement and eligible to apply. Once the petitioner had applied as per the criteria laid down in the advertisement and having obtained much more marks than the last selected candidate then it was incumbent upon the respondent-authorities to have selected the petitioner giving her the benefit of cut off date as fixed in the advertisement. It is further submitted that the persons in general, and in particular the present petitioner, are not aware of the rules and they go by the terms and conditions laid down in the advertisement and accordingly, rights accrued to them on the basis of such advertisement. Once the petitioner has participated in the recruitment process on the basis of the cut off date fixed in the advertisement and having successfully qualified otherwise on the basis of the interview etc, then she should not have been denied a position in the merit list since she had performed much better than the last selected candidate. Learned Counsel further submits that Rule 7(1) of the Appointment Rules do pot speak of the cut off date being the year of advertisement rather the year of appointment and since the select list has been prepared in the year 2000, therefore on that date the petitioner was above the minimum age fixed and accordingly she ought to have been found a place in the said merit list in the year 2000 being treated as the year of appointment.

Learned Counsel for the State and the intervenors however, on the basis of the stand taken in the counter affidavits, submit that the Rules will have priority over the cut off date fixed in the advertisement and the authorities have thus rightly not considered the petitioner as eligible on 1.1.1994 as it should be the real cut off date as against the date 30.11.1994 which was mentioned by oversight and since the authority was in hurry to make the appointment.

On a consideration of the rival submissions and interpretation put upon the Rules and facts of the case. I am of the view that the respondent-authorities cannot he faulted so far as the stand regarding the cut off date is concerned. The appointment Rules have been framed under Article 309 of the Constitution of India and thus that would have statutory force and any executive order or instruction cannot override such statutory rules which can only be amended by Amendment Rules or other rules framed under Article 309 of the Constitution of India or under exercise of statutory power. Nothing has been brought to the notice of this Court that any such amendment had been brought about, before the advertisement had been issued. Thus, it was not open to the requisitioning authority or the authority which conducted the recruitment process to have made any change in the eligibility criteria as prescribed by the Statutory Rules. Under the circumstances, it has to be held that any cut off date has to be reckoned as 1st January of the year of appointment. The next question which arises is as to what is the meaning of term "Year of Appointment" as used in the said Rules.

The submission of the learned Counsel for the petitioner may, at first blush, appear attractive but if such a submission is accepted then it will work havoc in the recruitment process and the eligibility if the candidates who applied for the same. If the appointments are not made within a reasonable time of the advertisement, then many candidates who were just below the maximum age fixed would become over age by the time the appointment process is completed. In fact, in the present matter also it is pointed out that although the select ion has been made but no candidate has been appointed as yet in terms of the said advertisement. if that is the position and if appointments are not made even in the year 2006 but thereafter then the petitioner who was admittedly under age on 1.1.1994 would become over age on 1.1.2007, if the appointment is made in that year.

In view of the said facts it can safely be concluded that the year of appointment can never refer to the actual year in which the appointment is made but to the year in which advertisement is issued because that is the only fixed point for reference, even though the actual year of appointment nay be very much different and vary several years from the date of advertisement as has, in fact, happened in the present case. Thus, he interpretation put forward by learned Counsel for the petitioner must he rejected.

Once it is held that the year of appointment referred to in Rule 7 (I) of the Rules, refers to the year of advertisement itself then it is apparent that on 1.1.1994 the petitioner was under age and her case could not have been considered for selection even though the advertisement wrongly mentioned the cut off date as 30.11.1994.

In the aforesaid facts and circumstances and the interpretation of the Rules, this writ petition has no merit and it is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.