RAFIQ, J. - (1.) THIS writ petition has been filed by petitioner Dr. Bansilal Jakhar seeking relaxation in the outer age limit for appointment on the post of Head Master, Secondary School. He was initially appointed as Teacher Grade-III vide order dated 14th Sept. , 1985. Later however he accepted the appointment as primary teacher in Kandriya Vidhayalaya, Uttarlai, Barmer on 10. 12. 1986 where he was promoted as teacher grade-II (TGT) and worked upto 28th Nov. , 1994. The petitioner then again came back in the employment of the respondent as Lecturer of the School Education as Political Science vide order dated 29. 1. 1994.
(2.) THE Rajasthan Public Service Commission issued an advertisement in some time in April, 2002 inviting thereby applications for 25 posts of Head Masters, Secondary School. THE petitioner also applied pursuant to the said advertisement. THE case of the petitioner is that he was eligible for such appointment as per Rule 11 of the Rajasthan Education Service Rules, 1970 (in short the Rules of 1970 ). As per the provisions contained in regard to said post in Column 4 of Group F in the schedule appended to the Rules of 1970, a candidate should have Bachelor's Degree or Diploma in Education along with the five years experience of teaching of High/junior HSS/higher Secondary Classes or the alternative qualification mentioned in the said column. THE petitioner possess requisite qualification and experience for the post of Head Master. He obtained three years Bachelor's Degree in Arts in the year 1982 thereafter he also obtained the degree of B. Ed. in the year 1985 both from Rajasthan University, Jaipur and then he obtained the degree of M. A. in political science in the year 1984 and obtained Ph. D in the year 1992. The written test was conducted on 22. 2. 2003. The petitioner also appeared in the said test and was declared successful. While result was declared on 1. 9. 2003, the interviews were held on 10. 12. 2003. However, the RPSC by their communication dated 16. 11. 203 informed the petitioner that his candidature has been rejected on account of his being found over age. This has been challenged by the petitioner on the ground that according to the information booklet in para no. 14d he is entitled for age relaxation of 15years being a member of Rajasthan Educational Service as such relaxation has been provided to the members of the Rajasthan Educational Subordinate Service Rules of 1971 (in short the Rules of 1971) also. In para no. 14c of the information booklet, five years age relaxation has been provided to the government servants of the Rajasthan. The last vacancy for appointment on the post of Head Master was notified in the year 1993-94 and such vacancies were again notified only in the year 2002, which is subject matter of present proceedings. While the rules provide for determination of the vacancies, yet the respondents failed to discharge their obligation in making such determination on yearwise basis. Had the vacancies were determined regularly and notified yearwise the petitioner would have been eligible to secure appointment because he was within age limit upto the year 2000. The petitioner has been made to suffer for no fault on his part but due to fault of the respondents. While the petitioner is presently drawing the salary in the pay scale of Rs. 6500-200- 10500 whereas the pay scale of Head Master is 7500-225 -. Even if the post of School Lecturer is counted in the Rajasthan Education Service then also the petitioner becomes eligible for the selection on the post of Head Master. So far as appointment on the post of Head Master is concerned, the members of Rajasthan Education Service should fall in the same class. However, the age relaxation has been provided to the member of Rajasthan Educational Service alone and no such age relaxation has been given to the members of Rajasthan Education Service. In doing so, the respondents have treated equals uneuqlly thereby discriminating against the petitioner and thus violating Article 14 and 16 of the Constitution of India. The petitioner has therefore prayed that the order Annex. 1 by which respondents RPSC has rejected the candidature of the petitioner should be declared illegal and should be quashed and set aside and the respondents may be directed to provide him relaxation of 15 years in the outer age limit. In the alternative, a prayer has been made that the respondents may be directed to provide age relaxation to the petitioner for which vacancies were not determined and not notified on year to year basis and be further directed to consider the petitioner eligible for appointment on the post of Head Master in the selection held pursuant to advertisement Annex. 1 and consider his case for appointment on the said post with effect from the date persons junior to him were appointed in the merit with all consequential benefits. The respondents have contested the writ petition and filed reply thereto. Their stand in the reply is that since the petitioner was holding the post of Lecturer in School Education which is a post falling within the Rajasthan Education Service Rules, 1970, he is not entitled to claim benefit of age relaxation of 15 years available to the members of Rajasthan Educational Subordinate Service under the Rules of 1971. The eligibility conditions in the advertisement have been reflected as per the rules according to which a candidate should have attained minimum 25 years of age and should not have completed 33 years of age as on 1st July, 2002. Relaxation in age has been provided to various categories of persons. According to such relaxation, an employee of the State Government is entitled to 5 years' age relaxation whereas a candidate working in the Rajasthan Educational Subordinate Service, which is governed by the rules of 1971 is entitled to age relaxation of 15 years. The petitioner who belongs to Rajasthan Education Service is not entitled to claim parity with those who are members of Rajasthan Educational Subordinate Service therefore he is not entitled to claim age relaxation upto 15 years. There is no provision in the Rajasthan Educational Service Rules providing age relaxation to the candidates merely on account of fact that recruitment was not held on regular basis in a particular year on account of delayed determination of vacancies. Since the petitioner was over age by one year eight months and nineteen days as on 1st July, 2002, his candidature had rightly rejected by the RPSC. In addition to the arguments narrated above, Shri N. R. Choudhary, learned counsel for the petitioner submitted that there was no basis for not giving the benefit of relaxation of 15 years to the petitioner who is a member of Rajasthan Education Service Rules which is governed by the Rules of 1971. It has been argued that the post of Lecturer School Education is included at S. No. 1 of Section F of the Schedule appended to the Rules of 1971. The petitioner therefore is entitled to age relaxation and the respondents have illegally rejected his candidature. In the alternative, it has been argued that even if the post of Lecturer School Education falls under the Rules of 1971 there was no rational basis for denying the benefit of age relaxation to the members of Rajasthan Education Service while at the same time extending the same to the members of the Rajasthan Education Subordinate Service. Learned counsel for the petitioner argued that everyone serving in the government had a right to crave and endevour for advancement in life and secure better avenues in service. Vacancies for the post of Head Master were last notified in they year 1994-95 and they have now been advertised again only after lapse of 8 years in the year 2002. Had the vacancies been timely determined and notified yearwise, the petitioner would have been within the age limit upto 13. 1. 2000 and in view of his academic record, there was no reason that he would not have been selected. It has been argued that the restriction of providing age relaxation of 15 years to only members of Subordinate Service based on proviso (V) to the Rule 10 of the Rules of 1970 is wholly unreasonable and arbitrary. The phraseology "the post in service" occurring in the said proviso would mean that any post in service. Admittedly,the petitioner is also holding the post of Lecturer School Education beside being a member of OBC category. Thus he is entitled to age relaxation of 5 years as per the condition no. 2 of the advertisement. The condition no. 7 of the advertisement further provides that employees should be at the minimum age of 40 years. The petitioner being an employee of the State Government is entitled to apply upto the age of 40 years and with the age relaxation of 5 years as admissible to the members of OBC as provided to him, he would be within the age limit upto the age of 45 years. Learned counsel for the petitioner has relied upon the judgment of this court in Prakash chand etc. vs. State of Raj. & Anr. 1990 (2) RLR 1 and in Hardayal Singh Chahar vs. State of Rajasthan & Ors 1998 WLC (UC) Raj 593. He therefor submits that the action of the respondents in denying age relaxation to the petitioner is therefore not only illegal but is also arbitrary, capricious, discriminatory and violative of Article 14 and 16 of the Constitution of India.
(3.) SHRI Tarun Joshi, learned counsel for the respondent RPSC while opposing the writ petition has argued that the age relaxation of 15 years to the members of the Rajasthan Education Subordinate Service Rules upto 15 years has been provided to only those who are members of the Rajasthan Education Subordinate Service. He therefore, prayed that the writ petition may be dismissed. I have heard the arguments advanced by learned counsel for the parties and perused the record. Although the learned counsel for the petitioner has made elaborate arguments questioning the wisdom of rule making authority in providing relaxation of 15 years to those who are members of Rajasthan Education Subordinate Service and at the same time denying such relaxation to those who are members of Rajasthan Educational Service but all those arguments have been made in the absence of any challenge to the vires or constitutional validity of such rule. I cannot possibly examine the question as to why in the rules such relaxation has been provided to members of Subordinate Service and why not to the members of the State Service and declare the rule ultra vires of Article 14 and 16 of the Constitution of India. Those arguments simply cannot be accepted because the petitioner has filed the present writ petition on his own choice and if he decided by choice not to challenge the validity of said rules, this Court cannot suo moto on its own embark upon examining validity of the rules. Although law relating to pleadings contained in Code of Civil Procedure may not be strictly applied to the practice and procedure of the writ proceedings but at the same time they can be certainly used for the purpose of analogy. One of the principles contained therein is that a defendant cannot be expected to meet a case and make pleadings and produce evidence on a question on which the plaintiff has neither pleaded as not set up a specific plea in his pleadings. In the absence of challenge to the validity of rules, the respondents case could not be expected to come out with the explanation giving a philosophy behind the proviso (V) to rule 10 of the Rules of 1970 which reflects the relaxation of 15 years only to the members of Subordinate Service and does not extend the same to those of State Service. In making his submissions on this aspect although learned counsel for the petitioner has made elaborate arguments in this matter, but he did so with the handicap of not having challenged the validity of rules. Those arguments therefore cannot be accepted. ;