Abhilasha Kumari, J.@mdashRule. Mr. D.G. Shukla, learned advocate, waives service of notice of Rule for the Respondent. On the facts and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petition is heard and finally decided.
2. By preferring this petition under Article 226 of the Constitution of India, the Petitioner has challenged the legality and validity of the impugned order dated 29.12.2010, rendered by the Respondent No. 1-Gujarat Public Service Commission ("GPSC"), whereby the Petitioner is informed that her candidature for the personal interview for the post of Lecturer, Class-II, in the discipline of Mathematics, has been cancelled as she exceeds the prescribed upper age bar.
3. Precisely stated, the relevant facts of the case are that the Petitioner, who has the qualifications of Master of Science (M.Sc.) and M. Phil. in the discipline of Mathematics, was initially selected and appointed as Lecturer, Class-II, in the said discipline on ad hoc basis vide order dated 10.02.1997, in the Government Engineering College, Morbi. The said appointment of the Petitioner was for a period of 11 months or till a regularly selected candidate is available, whichever is earlier. The Petitioner was transferred to L.D. Engineering College vide order dated 24.05.2002 and thereafter, to Government Engineering College, Chandkheda, vide order dated 05.07.2010. The Petitioner continued to work on ad hoc basis throughout this period, and is still working in the same capacity. The GPSC issued an advertisement to fill up posts of Lecturers, Class-II, in Government Engineering Colleges, Pharmacy Colleges and Polytechnics, in the State of Gujarat, which was published in the newspapers on 17.02.2010. Pursuant thereto, the Petitioner applied for the post of Lecturer, Class-II, in the discipline of Mathematics. The Petitioner received communication dated 14.12.2010 from the GPSC asking her to appear for the oral interview on 03.01.2011. However, the Petitioner thereafter received the impugned communication dated 29.12.2010 informing her that as she has crossed the upper age bar, her candidature for the personal interview, as informed by communication dated 14.12.2010, has been cancelled. Aggrieved thereby, the Petitioner has invoked the extraordinary jurisdiction of this Court.
4. Mr. Shivang H. Shukla, learned advocate for the Petitioner has vehemently made the following submissions:
1) That as per Rule 8(5) of the unamended Gujarat Civil Services (Classification and Recruitment (General) Rules, 1967 ("the Rules"), there is a specific provision for "in service" candidates such as the Petitioner, which states that the upper age limit for purposes of recruitment for such candidates shall not apply to a candidate who is already in Government service, either permanently or temporarily, if the candidate was within the age limit prescribed for the post at the time of his/her first appointment in Government service. As per the second proviso of the unamended Rules, a candidate who was within the age limit when appointed shall be entitled to relaxation of the upper age limit prescribed for the post requiring a Medical, Engineering, Veterinary or Agricultural degree or diploma, even if experience has not been prescribed as one of the qualifications for such post. The Petitioner was well within the upper age limit on the date of her initial appointment as Lecturer of Mathematics on ad hoc basis on 24.02.1997, therefore, the upper age limit would not be applicable to her as per Sub-rule (5) of Rule 8. As the Petitioner is teaching in an Engineering College and as experience is not one of the criteria mentioned in the advertisement under which she has applied for the post in question, she will be covered by the 2nd proviso to the unamended Rules and will be entitled for relaxation of the upper age limit. The Petitioner is fully covered by the provisions of Sub-rule (5) of Rule 8 and the upper age bar is not applicable to her. Even otherwise, as per the 2nd proviso, the Petitioner is entitled to relaxation of the upper age limit. The candidature of the Petitioner has been cancelled due to wrong interpretation of Rules, therefore, the action of the cancellation of the candidature of the Petitioner for the personal interview, by the GPSC, is illegal and arbitrary.
2) That Sub-rule (5) of Rule 8 is based on the "doctrine of continuous officiation", and as the Petitioner has been serving as Lecturer (Mathematics) on ad hoc basis ever since 24.02.1997, and at the time of the said appointment, she was within the upper age limit prescribed for the post of Lecturer, her candidature cannot be ousted for `confirmation'' on the said post as her qualification would relate back to her date of initial appointment. If the Petitioner is permitted to appear in the interview and her name is recommended for appointment, such appointment would relate back to her initial appointment on ad hoc basis. Further, the Petitioner has applied as an in service candidate and not as a fresh candidate, therefore, the first proviso to Rule 8(5) would not be applicable to her.
On the strength of the above submissions, the learned advocate for the Petitioner has prayed that the petition be allowed and the Respondent-GPSC be directed to permit the Petitioner to appear for the personal interview after quashing and setting aside the impugned communication. In support of the submission regarding the "doctrine of continuous officiation", the learned advocate for the Petitioner has placed reliance upon the judgment of the Supreme Court in
5. The petition has been strongly opposed by Mr. D.G. Shukla, learned advocate appearing on behalf of the Respondent-GPSC, by making the following submissions:
1) That the learned advocate for the Petitioner is referring to the provisions of the unamended Rules, however, the said rules have since been amended. As per both, the unamended and the amended Rules, the Petitioner will not derive any benefit. The first proviso to sub-rule of Rule 8 clearly stipulates that the upper age limit shall apply to a candidate whose recruitment to a post or service is made by direct selection for which experience has not been prescribed as one of the qualifications for the concerned post. As no experience is prescribed for the post in question, the provisions of the 1st proviso to Sub-rule (5) of Rule 8 will apply to the Petitioner. Moreover, the post for which the Petitioner has applied is Lecturer in Mathematics and this subject is not one of the subjects stated in the 2nd proviso to the said sub-rule, therefore, the provision of age relaxation will not apply to the case of the Petitioner. The Petitioner holds a degree of M.Sc. and M. Phil. in the subject of Mathematics and the post in question is of Lecturer, Mathematics, and is, therefore, not covered by the 2nd proviso to Sub-rule (5) of Rule 8. The case of the Petitioner is squarely covered by the 1st proviso as the recruitment is by direct selection for which experience is not a qualification and as per the 1st proviso the upper age limit is applicable to the case of the Petitioner.
2) That the date of birth of the Petitioner is 01.06.1968. The last date for receipt of applications was 20.03.2010. The maximum age stipulated in the advertisement is 35 years. The advertisement further stipulates that women candidates belonging to Unreserved (General) category shall be given 5 years'' relaxation in age. This relaxation has been given to the Petitioner. Even after doing so, the age of the Petitioner, as on 20.03.2010 (the last date for receipt of applications), was 40 years, 8 months and 17 days, which is over the upper age limit of 40 years, therefore, her candidature has rightly been rejected by the Respondent-GPSC. The name of the Petitioner was included in the list of candidates to be called for personal interview by oversight. Thereafter, it came to the notice of the GPSC that the Petitioner is above the prescribed age limit of 35 years as on the last date of receipt of applications. Even after being given relaxation of 5 years, the Petitioner is over the age limit of 40 years and is not entitled to any further relaxation. Accordingly, the Petitioner has rightly been informed that calling her for personal interview stands cancelled; therefore the petition be dismissed.
6. I have heard the learned Counsel for the respective parties and perused the averments made in the petition, the affidavit-in-reply and other documents on record.
7. It is undisputed that the date of birth of the Petitioner is 01.06.1968 and that as on 20.03.2010, which was the last date for receipt of applications, she was 40 years, 8 months and 17 days of age. As per the advertisement, the upper age limit for the post is 35 years. The advertisement also stipulates that women candidates belonging to the Unreserved (General) category shall be entitled to 5 years'' relaxation of age. After availing of the said relaxation, the Petitioner crosses the age limit of 40 years on the last date for receipt of application by 8 months and 17 days. It is an admitted position that the Petitioner is overage even after getting the benefit of 5 years'' relaxation in age. The case of the Petitioner is that she is entitled to further relaxation in age in view of the provisions of Sub-rule (5) of Rule 8 of the unamended Rules and the second proviso thereto. In spite of the fact that Sub-rule (5) of Rule 8 has been amended by Government Notification dated 23rd December, 1998, and the said amendment has been pointed out to him during the course of hearing, the learned advocate for the Petitioner has insisted on making submissions on the basis of the unamended provision. On perusal of the unamended and amended provisions, it is clear that apart from certain minor changes in language and structure, there is no substantial change in the meaning, import or purport of the said provision, or the first and second provisos thereto. However, for the sake of clarity, both the provisions are being reproduced herein below, though reference shall henceforth be made to the amended provision. Rule 8(5) of the Gujarat Civil Services (Classification and Recruitment (General)) Rules, 1967, and the first and second proviso thereto, as it stood prior to amendment vide Government Notification dated 23.12.1998 is as below:
8. Conditions as to prescribed qualifications:
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(5) 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 veterinary 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 qualifications for such post.
The amended provision reads as under:
8. Condition as to Prescribed qualifications:
*** *** ***
(5) Notwithstanding anything to the contrary contained in any rules for the time being in force relating to recruitments to any service or post a candidate who is already in Gujarat Government Service, either as a permanent or a temporary servant officiating continuously for six months or more in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servant applied thereafter, for the post under advertisement (hereinafter referred to as "the concerned post") the upper age limit prescribed for the purpose of recruitment in such rules, shall not apply to him provided he had not crossed the age limit prescribed for the concerned post at the time of his previous appointments;
Provided that the upper age limit shall apply to a candidate whose recruitment to a post or service is made through competitive examination or by direct selection for which experience has not been prescribed as one of the qualification for concerned post;
Provided also that where a Government Servant appointed to a post requiring a Medical, Engineering, Veterinary or Agriculture degree or diploma as one of the qualifications, he shall be entitled to relaxation of the upper age limit prescribed for the concerned post provided he had not crossed the age-limit prescribed for the concerned post at the time of his previous appointments even if experience has not been prescribed as one of the qualifications for such post.
8. Sub-rule (5) of Rule 8 is qualified by the first proviso which clearly stipulates that the upper age limit shall apply to a candidate whose recruitment to a post is made through direct selection for which experience is not prescribed as one of the qualifications, as in the present case. This proviso is directly applicable to the case of the Petitioner, therefore, the provisions of Sub-rule (5) of Rule 8, whereby it is provided that the upper age limit shall not apply to a candidate who is in Government service, either temporarily or permanently, will not be applicable to the case of the Petitioner. The second proviso provides for age relaxation provided the candidate has not crossed the age limit prescribed for the post at the time of previous appointment, even if experience has not been prescribed as one of the qualifications. However, such age relaxation applies only to a post requiring a Medical, Engineering, Veterinary or Agriculture degree or diploma as one of the qualifications. The Petitioner holds a M.Sc. and M. Phil. degree in Mathematics and the post for which she has applied is Lecturer in the discipline of Mathematics, which subject is not mentioned in the 2nd proviso, therefore, the age relaxation envisaged by the 2nd proviso, being restricted to the degrees/ diplomas in the subjects mentioned therein, will not be applicable to the Petitioner. The submission that the Petitioner is teaching in an Engineering College, therefore the relaxation should be given to her, will be of no avail as the proviso stipulates that the degree/ diploma should be in the subject of Engineering, amongst other subjects mentioned therein, and not that the candidate should be teaching in an institution where those subjects are taught. To interpret the 2nd proviso in the manner suggested by the learned advocate for the Petitioner would amount to doing violence to it and result in reading something into it that is neither present, nor intended, by the Legislature. Such a course of action would be wholly impermissible in law.
9. The learned advocate for the Petitioner has made a submission regarding the "doctrine of continuous officiation". According to him, Sub-rule (5) of Rule 8 is based on the said doctrine. Though the last part of the submission regarding Sub-rule (5) of Rule 8 being based on the said `doctrine'' has not been pressed, it has been contended that the Petitioner has been working on ad hoc basis ever since 1997 and being an "in service" candidate, she has applied for the post for the sake of `confirmation'' in the said post and not as a fresh candidate, therefore the first proviso to Sub-rule (5) of Rule 8 will not apply to her. In this connection, reference has been made to S. Sumnyan and Ors. v. Limi Niri and Ors. (supra), especially Paragraph-38 thereof, which is reproduced herein below:
38. The challenge appears to us to be belated and in this regard we would endorse the same view as expressed by this Court in
15. It is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. In this regard we fortify our view by the judgment of this Court in
The factual background in that particular case was that the period of ad hoc service rendered by the Appellants therein was directed not to be counted towards their seniority in the rank of Assistant Engineer by the learned Single Judge, as affirmed by the Division Bench of the High Court. There can be no dispute regarding the observations of the Supreme Court, however, they have to be seen in the context of the facts of that case. The present is not a case for counting the ad hoc period for the purpose of seniority, but is a case of direct selection to the post in question, therefore, reliance placed by the learned advocate for the Petitioner upon the above decision will not be of much assistance, in the facts of the present case.
10. There is no doubt regarding the fact that the Petitioner has applied for the post in question pursuant to the advertisement. The said advertisement invites applications from eligible candidates for the purpose of direct recruitment/ selection for the post. Nowhere does the application mention that it is for `confirmation'' of ad hoc employees who are already in service, upon the post in question, as is sought to be argued by the learned advocate for the Petitioner. For all intents and purposes the advertisement is for direct recruitment/ selection. All candidates who are eligible, whether in Government service (either in a temporary or permanent capacity as mentioned in Sub-rule (5) of Rule 8), or fresh candidates, may apply. However, as per the first proviso to Sub-rule (5) of Rule 8, the age limit would apply. The Petitioner has already been given 5 years'' relaxation in age being a woman candidate belonging to the Unreserved (General) category. Even thereafter, the Petitioner has crossed the upper age limit of 40 years as on the last date for receipt of applications, as stipulated in the advertisement. As already discussed hereinabove, the case of the Petitioner is squarely covered by the first proviso to Sub-rule (5) of Rule 8 and the second proviso thereto is not applicable to her, hence, she is not entitled to any further relaxation of age.
11. Merely because the Petitioner has been informed by communication dated 14.02.2010 to remain present for the personal interview, and this too, by oversight, as stated in the affidavit-in-reply filed by the Respondent-GPSC, the Petitioner does not acquire any legal or vested right which would not otherwise accrue to her by virtue of the Rules. It clearly emerges that the Petitioner has crossed the upper age bar of 35 years plus 5 years'' relaxation on the last date for receiving of applications. Due to the applicability of the 1st proviso to Rule 8(5), the age bar shall apply to the Petitioner. Further, as the post in question (Lecturer in Mathematics) does not require a Medical, Engineering, Veterinary or Agriculture degree/ diploma, no relaxation in age, as provided by the second proviso, is admissible to the Petitioner.
12. The cumulative effect of the factual and legal aspects as discussed hereinabove is that, in the view of this Court, there is no legal infirmity in the impugned communication and action of the Respondent-GPSC in cancelling the candidature of the Petitioner for the purpose of appearing in the personal interview. As no legal, fundamental or indefeasible right of the Petitioner has been infringed so as to warrant interference by this Court, the petition must fail. It is, accordingly rejected. Rule is discharged. Parties to bear their own costs.
