RATHORE, J. - (1.) DELAY condoned.
(2.) PETITIONER was appointed as Primary School Teacher vide order dated 17. 7. 1993 and was posted at Panchayat Samiti, Garhi (Banswara ). An advertisement was issued by the Rajasthan Public Service Commission (RPSC) for making appointment on the posts of Sub Inspectors in the year 1994. Learned counsel for respondent's contention is that earlier to the advertisement issued for the recruitment on the post of Sub Inspectors in the year 1994, no recruitment was made for the post of Sub Inspectors after the year 1989. The respondent becomes eligible for the appointment to the post of Sub Inspector as he possesses the requisite qualification in pursuance of the advertisement issued by the RPSC and the respondent submitted his application for the appointment to the post of Sub Inspector. The respondent was called for written test and in pursuance of the call letter for the written test, the respondent appeared in the written examination which was held on 14. 5. 1995 and the respondent (Mahipal Singh Sisodia) was declared successful as his name found place in the list of successful candidates which was published in the newspaper. Thereafter, the respondent was called for physical Efficiency Test vide letter dated 20. 11. 1995 and he appeared for Physical Efficiency Test on 6. 12. 1995 and was declared successful in the same. The controversy arose from the communication dated 23. 11. 1996 issued by the Assistant Secretary, RPSC, by which the respondent was informed that his declaration of the result was provisional, but the respondent being over age, his candidature has been rejected. Aggrieved and dis-satisfied with the letter dated 23. 11. 1996 issued by the RPSC, the respondent preferred the writ petition before this Court seeking relief to quash and set aside the communication dated 23. 11. 1996 by which the respondent was declared overage and was held not eligible for all purposes for the post of Sub Inspector for which the respondent applied in pursuance to the advertisement issued in the year 1994. Reply to the writ petition has been filed on behalf of the respondents. After hearing the arguments, the learned Single Bench allowed the writ petition and held "that the petitioner is entitled to get relaxation upto 3 years in upper age limit as being treated as State Government employee. The respondents shall consider the candidature of Mahipal Singh Sisodia giving him the said benefit. He has already been interviewed under the orders of the Court and and such, if he is found otherwise eligible in merit, may be given to him in accordance with law. " The State of Rajasthan, appellant, filed this special appeal against the judgment dated 29. 1. 1997 passed by the learned Single Bench. The appellant's contention, so as to challenge the judgment dated 29. 1. 1997 passed by the learned Single Bench in S. B. Civil Writ Petition No. 891/1996 is that the maximum age for appointment on the post of Sub Inspector was prescribed as 23 years. The advertisement was issued inviting application for the post of Sub Inspector upto 26. 11. 1994 and the maximum age prescribed in the advertisement was 23 years as on 1. 1. 1995. The respondent applied for the said post/examination and it is further admitted that he has passed the written test. Thereupon, the respondent was called for Physical Efficiency Test and was also declared successful in the same. His candidature was however rejected by the RPSC vide letter dated 23. 11. 1996 on the ground of over age since the date of birth is 10. 9. 1971. Counsel for the appellant specifically pleaded that the respondent is not entitled for claiming the relaxation in the upper age limit, because of the reason that the respondent was holding the post of Teacher Gr. III on probation of two years and was not confirmed on the post of Teacher Gr. III. As such, the appointment was temporary for a period of two years and not in substantive capacity as alleged by the respondent. The learned counsel for the appellant further assailed the order of the learned Single Bench on the ground that it has seriously erred in not placing reliance on the decision of the Apex Court in the case of J. Ashok Kumar vs. State of A. P. & Ors. (1), which laid down that "since the selection has already been completed and candidates were selected and appointed, we cannot give the benefit to the petitioner. " We have carefully scanned this Special Appeal and the order dated 29. 1. 1997 passed by the learned Single Bench and also the writ petition and the documents annexed with it and the reply to the writ petition along with the documents.
(3.) THE judgment passed in the case of J. Ashok Kumar (supra) is not applicable to the instant case. The learned Single Bench not only considered all the relevant provisions but also considered the judgment passed in the similar writ petition in Ummed Singh vs. State of Rajasthan and ors. Since the respondent is a Primary School Teacher,garhi (Banswara) and during the service as Panchayat Samiti Teacher in pursuance of Advertisement dated 26. 11. 1994 (Annex. 3), the respondent applied for the post of Sub Inspector of Police and the respondent appeared in the written test as well as the physical Efficiency Test on 14. 5. 1995 and 20. 11. 1995, respectively, and was declared successful. The RPSC vide its communication dated 23. 11. 1996 (Annex. 6) rejected the candidature of the respondent on the ground of over age admittedly has not considered the grievances of the respondents that he was entitled to get relaxation upto 5 years available to the employee of the State Government under Rule 11 of the Rajasthan Police Subordinate Service Rules, 1989. Rule 11 of the said Rules, 1989, provides age limit for direct recruitment and for the post of Sub Inspector, the upper age limit is 23 years and as per the advertisement a candidate should not have completed 23 years of age on 1. 1. 1995. Proviso (i) to Rule 11 provides relaxation of upper age limit upto 3 years in the case of the candidates belonging to the State Government Employees. The learned Single Bench while allowing the writ petition of the respondents, has also considered in the judgment passed in Ummed Singh vs. State of Rajasthan & Ors. (supra), wherein the similar question has been decided by this court. In view of the judgment passed in Ummed Singh's case, the learned Single Bench held that the respondent is entitled to get relaxation upto 3 years in upper age limit as being treated as State Government employee and further directed the appellant to consider the candidature of the respondent giving him the said benefit. Since the respondent has already been interviewed under the orders of the court and as such, if the respondent is found otherwise eligible in accordance with the merits, the respondent may be given the appointment on the post of Sub Inspector in accordance with law. In the case of Niyaz Mohammed Khan vs. State of Rajasthan & Anr. (3), a Division Bench of this court has considered the same question of relaxation in age and Specifically the person working in the service of Panchayat Samiti or Zila Parishad must be regarded as Government Servant holding Post under State Panchayat Samiti and Zila Parishad which derive their authority from statute and are under the Administrative control of the State Government and exercise many governmental functions. In paras 19, 20 the Division Bench of this Court held that the Panchayat service constituted under Sec. 89 of the Rajasthan Panchayat Raj. Act, 1994 and u/s. 86 of the Rajasthan Panchayat Samitis and Zila Parishad Act, 1959 is civil service of State and members thereof are Government Servants entitled to same relaxation of age in case of their employment on post of Sub- Inspector of Police as is applicable to Rajasthan Government Employees. After having considered the judgment passed by the learned Single Bench and the judgment of the Division Bench of this Court passed in the case of Niyaz Mohammed Khan (supra), we are of the view that the judgment passed by the learned Single Bench does not require any interference. ;