VERMA, J. - (1.) DR. Avinash Bishnoi in Civil Writ Petition No. 6789/94 was appointed as Civil Assistant Surgeon (Dentistry) on 16. 10. 1980. His date of birth was 8. 8. 1954. In response to the advertisement dated 29. 11. 1992 for a short term post of Assistant Professor in various subjects of Medical Science were advertised. The maximum age was 35 years as prescribed on 1. 1. 1993. The petitioner had applied for the said post. Though he was interviewed, but he was not appointed. He sent many representations. But lateron came to know that as per Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (here-in-after referred to as the rules), he was held to be over age. Even though the case of the petitioner was that even for an urgent temporary appointment, the relaxation is to be given to the employees who were in service upto 40 years and he was of the age of 38 years at that time, as such he was within age limit. No relief was given to him. He filed a civil writ petitioner No. 2178/93 which was decided by the Division Bench of this court.
(2.) SIMILARLY, Dr. Suresh Chand Gupta had also approached the High Court in Civil Writ Petition No. 189/93 for the same relief as Dr. Avinash Bishnoi. The Division Bench of this Court consisting of M. R. Calla and Y. R. Meena JJ. had decided five connected matters including the writ petition of Suresh Chand and Avinash Bishnoi. The validity of part of the proviso (iv) to Rule 11 (2) of the rules was challenged. The petitioners at that time had crossed the age of 35 years, but were within the age 40 years. They had challenged their rejection for the purpose of selection through the Central Selection Committee for urgent temporary appointment under Rule 30 of the rules on the ground that the upper age limit in case of the persons serving in connection with the affairs of the State in substantive capacity i. e. 40 years, for direct recruitment, to the posts to be filled in by competitive examination or in the case of posts filled in through the Commission by interview. It was the contention that they were not being considered because of age for the purpose of urgent temporary appointment, but they were eligible for regular recruitment upto the age of 40 years. Rule 11 (2) (vi) provided that in case of persons serving in connection with the affairs of the State in substantive capacity, the upper age limit shall be 40 years for direct recruitment to posts filled in by Competitive Examinations or in case of posts filled in through the Commission by interview. This relaxation was not to apply to urgent temporary appointments. The last part of the rule `this relaxation shall not apply to urgent temporary appointments' was challenged. Both the petitioners had applied for the post of Assistant Professor to be filled on urgent temporary basis. The Division Bench had allowed the writ petitions and had held that equality clause has been violated and thus Article 14 of the Constitution of India is infringed and a direction was given to the State Government to the effect that Suresh Chand Gupta be also given appointment as Assistant Professor in the speciality of Radiodiagnosis from the same date from which persons obtaining lesser marks have been appointed and that Dr. Suresh Chand Gupta would be entitled to all consequential benefits. Similar direction was given in Civil Writ Petition No. 2178/93 in the case of Avinash Bishnoi that he be appointed as Assistant Professor in the speciality of Dentistry from the date other selected candidates have been appointed on the basis of their selection by CSC and they would be entitled to all the consequential benefits. (The facts have been taken from the earlier writ petition No. 2178/93 and 1891/93 decided on 22. 2. 1994, copy of which has been attached with the present writ petitions filed by the petitioners ). In pursuance of the orders passed by the Division Bench, both the writ petitioners were given the appointment on 1. 9. 1994 w. e. f. 27. 2. 1993 vide Annexure-2 attached with the writ petition as Assistant Professors in the respective department with the result that the petitioner was holding the post of Assistant Professor from 27. 2. 1993. In the case of Avinash Bishnoi, an advertisement was issued on 23. 8. 1994 as published in the Rajasthan Patrika on 3. 9. 1994, inviting applications for the post of Assistant Professor (Dentistry) on regular basis to be selected by the Public Service Commission. The petitioner Bishnoi had applied in response to such advertisement, but his application was rejected vide Annexure-4 on the ground of being age barred. A notice was given vide Annexure-5 and ultimately a writ petition has been filed.
(3.) SIMILARLY, in the case of Suresh Chand Gupta as well, advertisement was issued vide Annexure-3 on 5. 8. 1996 for the post of Assistant Professor (Radiodiagnosis ). His application was also rejected vide Annexure-4 being age barred. Both the writ petitioners had filed the present writ petitions, being aggrieved against the order Annexure-2 primarily on the ground that in the earlier writ petitions filed by the petitioners, the petitioners were allowed to be appointed as Assistant Professor on urgent temporary post w. e. f. 27. 2. 1993 and they were continuing on the said post. As per sub-rule (iv) of Rule 11 (2) of the Rules, the persons appointed temporarily shall be deemed to be within age limit had they been within the age limit when they were initially appointed even though they had crossed the age limit when they appeared finally before the Commission and shall be allowed upto two chances, had they been eligible as such at the time of their initial appointment which is the common ground in both the petitions. The main grounds being taken by the petitioners are that the vacancies were for the year 1992-93 in case of Bishnoi and, therefore, the age of 40 years is to be considered as on 1. 1. 1993 and similarly Dr. Suresh Chand Gupta says that the age is to be considered as on 1. 1. 1995. The letter part of the age to be considered on 1. 1. 1993 or 1. 1. 1995 hardly needs any consideration for the reason that as per the rules, the age is to be taken into account as it should be on January next i. e. in the case of Dr. Bishnoi, the age is to be considered as on 1. 1. 1995 as the advertisement was issued in 1994 and similarly in the case of Dr. Gupta the age is to be considered as on 1. 1. 1997 for the reason that the advertisement was issued in 1996. However, under sub-rule (iv) of Rule 11 (2) of the Rules, both the petitioners were considered to be within age limit at the time of their appointment against the post of urgent temporary and, therefore, the petitioners are entitled to avail two chances. Rule 11 (2) (iv) of the Rules reads as under:- " That the persons appointed temporarily shall be deemed to be within the age limit had they been within the age limit when they were initially appointed even though they have crossed the age limit when they appear finally before the Commission and shall be allowed upto two chances had they been eligible as such at the time of their initial appointment. " Sub-rule (vi) of Rule 11 (2) reads as under:- " Notwithstanding anything contained contrary in these Rules, in the case of persons serving in connection with the affairs of the State in substantive capacity, the upper age limit shall be 40 years for direct recruitment to posts filled in by Competitive Examinations or in case of posts filled in through the Commission by interview. This relaxation shall not apply to urgent temporary appointments. " ;