1. Rule. R. J. Oza waives service. Heard the learned Counsels. The petitioner who is in Government service working as Gynaecologist-Class I on ad hoc basis applied in pursuance of the advertisement No. 153 of Gujarat Public Service Commission for the post of Gynaecologist in Gujarat Medical (Specialists'' Services) Class I and the age limit is 35 years as on December 15, 1989 being the last for receipt of applications. The petitioner''s birth date is April 16, 1956 and, therefore, he is six months beyond the prescribed age limit. However, this age limit is subject to relaxation and extension in case of Government employees.
2. The petitioner had in pursuance of an earlier advertisement dated February 29, 1988, copy of which is now placed on record, applied for the post of Gynecologist Class I.As per that advertisement the limit was 35 years and the applications were to be received on or before March 18, 1988. Therefore, he was eligible for appointment and he had applied and after the interview he was selected for appointment and appointed on October 12, 1988 as Gynecologist Class I in the Government Hospital at Dhoraji.
3. Rule 8(5) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 reads as follows :
"Notwithstanding anything to the contrary contained in any rules for the time being in force relating to the recruitments to any service or post, the upper age limit for the purposes of recruitment prescribed in such rules shall not apply to a candidate who is already in Gujarat Government Service either as a permanent Government servant or as a temporary Government servant officiating continuously for six months in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servants and was within the age limit prescribed for the post at the time of his first appointment in Government Service, provided that such upper age limit shall apply to such candidate in a case where recruitment to a post or service is done through competitive examination or by direct selection for which experience has not been prescribed as one of the qualifications for such post.
Provided further that where a post requiring a medical, engineering or agricultural degree or diploma as a qualification is to be filled by direct selection through the Public Service Commission, a Government servant who was within the age limit when appointed to such post shall, if he subsequently applies for any such post be entitled to relaxation from the application of the upper age limit prescribed as aforesaid, even if experience has not been prescribed as one of the qualification for such post."
4. The learned Counsel for the respondents submits that on the date of his first appointment, i.e. October 12, 1988, he was not within the age limit prescribed for the post and, therefore, this provision of sub-rule (5) is not applicable and the requirement of the age limit of 35 years is applicable and, therefore, he has been rightly excluded from consideration. This cannot be accepted in view of the fact that the age limit prescribed is as on the last date for receipt of applications and on that date, namely March 18, 1988, he was within the age limit of 35 years and he was eligible for appointment and was in fact appointed on that basis. Merely because the date of appointment is subsequent, that does not make him ineligible for first appointment or for consideration on subsequent occasion under the provisions of Rule 8(5). Rule 8(5) is intended to give benefit to persons who are recruited in the Government service within the age limit as on the given date and are considered eligible irrespective of the age limit when other regular recruitment takes place. There is no reason to refer the date of eligibility to the date of appointment because that actual date of appointment might vary for different candidates for different reasons and availability of posts on different dates. However, the eligibility of all those persons to be considered in response to the same advertisement has to be with reference to a fixed date and the last date for receipt of applications is the rational and reasonable date with reference to which the prescribed age limit can be ascertained. Since on the last date for receipt of applications namely march 18, 1988, the petitioner was within the age limit and, therefore, he was interviewed, selected and appointed, the later date of appointment does not render him ineligible for that appointment and, therefore, the provision of Rule 8(5) applies to his case when the applies for any other post or service under the Gujarat State. Hence the stand taken by the respondents that the petitioner is agebarred and ineligible for appointment fails.
5. Hence this petition is allowed and rule is made absolute by quashing and setting aside the letter of the Gujarat Public Service Commission dated August 3, 1989 (Annexure ''D'') considering the petitioner ineligible as not being within the prescribed age limit and not calling him for interview for the post of Gynaecologist-Class I, and the respondent-Commission is directed to call the petitioner for interview for the post of Gynaecologist-Class I and consider his case in accordance with law.
6. No order as to costs. Direct service.
