M.R.CALLA, J. - (1.) THIS batch of five writ petitions arises out of the identical facts involving common questions of law and therefore, all these five writ petitions are being decided by this common judgment and order.
(2.) ALL the petitioners in these writ petitions are regularly appointed Civil Assistant Surgeons in the Rajasthan Medical and Health Service, under the Rajasthan Medical and Health Service Rules, 1963 (in short 'the Rules of 1963') and all of them are desirous of appointment on the post of Assistant Professor in the respective specialities, under the Rajasthan Medical and Health Service (Collegiate Branch) Rules, 1962 (hereinafter referred to as the 'Collegiate Branch Rules'. In the case at hand, the dispute is about the selections held for urgent temporary appointments under Rule 30 of the Collegiate Branch Rules and in all the writ petitions the challenge has been thrown to the validity of the lost part of proviso (vi) to Rule 11(2) of the Collegiate Branch Rules. It is not in dispute that at the relevant time, when the selections were held all these petitioners had crossed the age of 35 years but had not attained the age of 40 years. All these petitioners are aggrieved because their candidature has been rejected for the purpose of selection through the Central Selection Committee for urgent temporary appointment under Rule 30 of the Collegiate Branch 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, has been made inapplicable to urgent temporary appointments under the aforesaid impugned part of proviso (vi) to Rule 11(2) and on the basis of this part of the proviso, they have been held to be ineligible for selection through the Central Selection Committee (C.S.C.) for the purpose of urgent temporary appointments, although they are eligible for regular recruitment to the same post. The common question which arises in all these writ petitions is about the validity of proviso (vi) to Rule 11(2) of the Collegiate Branch Rules. The same is reproduced as under: (vi) 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.(underlining of the impugned part of the rule is ours). Learned Counsel for the petitioners while assailing the validity of the last para of this proviso viz., 'this relaxation shall not apply to urgent temporary appointments', have invited our attention, in the first instance, to Rule 30 in Part -VIII of the aforesaid scheme of the Rules. Mr. Joshi has submitted that urgent temporary appointments under Rule 30 of the Collegiate Branch Rules are to be made in case the vacancy in the service cannot be filled in immediately either by direct recruitment or by promotion under the rules and therefore, the vacancy being the same, the eligibility cannot be taken to be different for the purpose of urgent temporary appointment and for the purpose of regular appointment. The submission of Shri Joshi is that same candidate though eligible against same vacancy for regular recruitment and appointment to the service is not considered as eligible for the purpose of urgent temporary appointment and this part of proiso (vi) to Rule 11(2) is on the face of it unreasonable and there is no rationale to sustain the inclusion of this part in the proviso. Mr. Prem Asopa has further submitted that Rule 30 clearly postulates that the vacancy which cannot be filled in immediately by either of the methods of recruitment may be filled under Rule 30 by way of urgent temporary appointment by appointing in an officiating capacity thereto an officer eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the service and therefore, in terms of Rule 30 itself, any candidate who is eligible for direct recruitment should also be eligible for urgent temporary appointment under Rule 30 and the eligibility cannot be varied only with reference to the appointment under Rule 30 as against that for the regular appointment.
(3.) MR . R.D. Rastogi, appearing for one of the petitioners has also submitted that there cannot be more stringent conditions for the purpose of giving urgent temporary appointments vis -a -vis the conditions which are there for giving regular appointment. The submission which has been made on behalf of the petitioners is that the vacancy is the same and it does not stand to reason that against the very same vacancy a candidate who is eligible for regular appointment is not eligible for urgent temporary appointment under Rule 30 and the exception with regard to the upper age limit of 40 years in case of the persons serving in connection with the affairs of the State in substantive capacity upto the age limit of 40 years, has been wrongly made in applicable for the purpose of urgent temporary appointments. It has also been submitted that there is no nexus with the object sought to be achieved for denying this upper age limit of 40 years in the case of urgent temporary appointments while the same is very much available for the purpose of regular appointments.;