Dinesh Kumar Yadav vs State of M.P.

Sheel Nagu, J.—The instant writ petition filed under Article 226 of the Constitution of India seeks the following reliefs:-

The condition prescribed for maximum age limit in the impugned advertisement (vide Annexure P-3 Cl. 32.4) may kindly be quashed.

That, alternatively respondent authority may kindly be directed to issue corrigendum or carry out an amendment in the advertisement with respect to maximum age limit in consonance with Rules-2012, so that the benefit be extended to deserving candidates like petitioners.

That, respondent authority may kindly be directed to apply the rules and principles of reservation in proper manner and distribute the reserved seats amongst all three categories of physically handicapped candidates.

Cost of the petition may kindly be awarded.

Any other relief, which this Hon''ble Court deems fit in the facts and circumstances may also kindly be granted.

Factual matrix involved in the instant case are that an advertisement was issued by the National Rural Health Mission dated 5.6.2013 published in the Hindi Daily Newspaper ''Naiduniya'', Gwalior dated 8.06.2013 for filling up the post of Ayush Chikitsak Adhikari on contractual basis. 5.7.2013 was prescribed as the last date for receiving applications. Pertinently, the advertisement did not prescribe any maximum age of eligibility for candidates.

The State issued guidelines contained in Annexure P-3 prescribing detailed procedure for filling up the above said post inter alia providing in clause 32.4 for contractual appointment, the minimum and the maximum age of 21 and 40 years respectively as on first January 2013.

All these petitioners are of the age between 50-52 years and therefore as per the guidelines were over age on the last date i.e. 05.07.2013

Learned counsel for the petitioner points out by referring to Annexure P-4 M.P. Gazette Extra ordinary dated 18.1.2013 publishing " The Madhya Pradesh Ayurved/Homeopathy/Unani Contract Servant (Appointment and Conditions of Service) Rules 2012" framed under the proviso to Article 309 of Constitution of India which inter alia provided in Rule 6 as follows:

Qualification-(1) Age-The maximum age limit for contractual appointment shall be 60 years on the first day of January of the year in which the appointment is to be made.

(2) Minimum Educational Qualification-Minimum educational qualification for the appointment of the candidates shall be as specified in the schedule

From the above it is evident that statutory Rules of 2012 provided 60 years as the maximum age for contractual appointment including appointment of Ayush Chikitsak Adhikari.

Learned counsel for the petitioner further refers to the Executive Instructions dated 31.5.2005 of the State prescribing reservation for the disabled category to the extent of 6% (2% each for vision impairment, audio impairment and orthopedic impairment). It is contended that no posts are reserved separately for each of the said three sub-categories of disabled persons. Based on the above said factual matrix, the contention of learned counsel for the petitioner is that despite statutory Rules prescribing 60 years as the maximum age for appointment, the guidelines contained in Annexure P-3 wrongly restrict the maximum age to 40 years. The other argument of learned counsel for the petitioner is that the above said recruitment commenced vide Annexure P-1 does not provide for reservation to the disabled category person in terms of the above said executive instructions of the government dated 18.01.2013.

Per contra the State government has filed the return by adopting the return filed in W.P. No. 1299/2014 to primarily contend that Rule 6 of the statutory rules of 2012 has since been amended w.e.f. 9.7.2013 (vide R-2) whereby the maximum age limit for contractual appointment has been reduced from 60 to 40 years on the first day of January of the year in which the appointment is to be made. On this basis the counsel for the State contends that Rule has since been amended and the benefit of maximum age of 60 years cannot now be extended for the recruitment in question.

Pertinently, this Court while entertaining this petition by an interim order passed on 3.7.2013 had directed the consideration of the petitioner.

Having heard leaned counsel for the rival parties and perusing the material placed on record, it is evident that amendment to Rule 6 was brought into effect from 9.7.2013 whereas the process of recruitment in question had commenced on 8.6.2013 when the advertisement in question was published vide Annexure P-1. It is settled principle of service jurisprudence that Rules prevailing at the stage of commencement of recruitment process shall apply and govern the ensuing process of recruitment. Any change in the Rule pertaining to the process of recruitment after the issuance of the advertisement and during subsistence of the recruitment process, shall not apply unless the amendment itself provides for retrospective applications which itself has its own limitation. Thus in the instant case the amendment dated 9.7.2013 cannot be applied to the recruitment process which had commenced on 8.6.2013. This Court is bolstered in its view by the decision of the Apex Court in the case of Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, .

The respondents are obliged to provide reservation to the disabled category to the extent as prescribed by the executive instructions dated 18.01.2013 Annexure P-4.

In view of the above, this petition deserves to be and is therefore allowed in the following terms:-

The petitioner is entitled to be considered in terms of the statutory rules of 2012 without taking into account the amendment to Rule 6 that was carried out by the notification dated 9.7.2013 (R-2).

Respondents are further directed to follow directions contained in the executive instructions dated 31.3.2005 Annexure P-5.

Since the candidature of the petitioners have already been considered in terms of the interim order dated 3.7.2013, the result be declared (provided the consideration has taken place as per unamended Rules of 2012) and in case the petitioners have been found suitable, then the benefit due to them be given as expeditiously as possible preferable within 60 days from the date of receipt of certified copy of this order.

No order as to costs.