1. Heard learned counsel for the parties.
2. Considering the short point involved in the writ petition and also the fact that the facts of the case are not much in dispute the reasons for declining relaxation to the petitioner under the Rules know as Uttar Pradesh Public Service (Relaxation in Maximum age limit) Rules, 1992 are mentioned in the impugned order whose validity is be seen, therefore, there is no need to call for any counter affidavit specially as this is the second round of litigation.
3. An advertisement was issued by the concerned opposite party on 06.01.2016 inviting applications for being considered for selection and appointment as Lab Technicians in the Medical and Health Department of the State Government. The last date for submission of online forms was prescribed therein as 29.01.2016.
4. The petitioner herein tried to apply online as was required but considering his age which was beyond the maximum age limit as on the prescribed date, the same was not accepted by the Software/Website. Being aggrieved he filed a writ petition bearing No. 1542(SS) of 2016 which was disposed of vide judgment and order dated 27.01.2016 which reads as under:-
The petitioner herein seeks relaxation in age in terms of U.P. Public Service (Relaxation in Maximum age limit) Rules, 1992 on the ground that since the year 2007 the posts in question were advertised several times and the petitioner even applied in pursuance to the same, but the said selections were never taken to their logical end and now after almost eight years a fresh process of selection has been initiated by means of the advertisement dated 6.1.2016, but the petitioner is not eligible as the maximum age of 45 years is to be calculated as on 1.7.2016, based on which he is overage by six days, therefore, he is being denied his valuable right for public employment.
The advertisement in question was issued on 6.1.2016. Today is the last date for submission of application forms. 29.1.2016 is the date for submission of fees. The petitioner ought to have approached this court earlier for redressal of his grievance. In the facts of the present case all that can be done is that the Principle Secretary, Medical and Health Services may look into the aforesaid aspects of the matter, as no selection has been held since 2007 as alleged by the petitioner herein and take a decision as per the provisions contained in the aforesaid Rules of 1992 keeping in mind the Division Bench Judgment in the case of Prem Chandra and ors. v. State of U.P. and ors., reported in (2009) 3 UPLBEC 2656, as affirmed by the Supreme Court in the case of State of U.P. and anr. v. Santosh Kumar Mishra and anr., reported in (2010) 9 SCC 52, within two weeks from the date a certified copy of his order along with the aforesaid judgments is submitted before him. If he decides to relax the age, then he shall pass consequential order to facilitate the submission of application forms accordingly. The decision so taken shall be communicated to the petitioner the earliest.
With the above observations this writ petition is disposed of.
Let a copy of this order be issued to the learned counsel for the parties today itself on payment of usual charges."
5. In pursuance to the aforesaid, the Principal Secretary, Medical and Health, Government of U.P. considered the case of the petitioner and has passed the impugned order declining relaxation under the aforesaid Rules of 1992 on the ground firstly that if it is granted others would also claim the said benefit, secondly, the judgments rendered in the case of Prem Chandra and Ors. v. State of U.P. and Ors. reported in 2009 (3) 3 UPLBEC 2656 and in the case of State of U.P. and another v. Santosh Kumar Mishra and another reported in 2010 (9) SCC 52, the case of the said litigant was of special category and as such the said judgments were rendered in respect of the Pharmacists cadre considering the special circumstances, without indicating what was the special circumstance prevailing therein.
6. The contention of the petitioner on the other hand is that last selection on the post of Lab Technician was held in the year 2007, thereafter the vacancies on the said post were advertised several times and the petitioner had applied against it, however, thereafter for some reason on the other the selections could not be taken to their logical end and were cancelled. It is only now i.e. after about 8-9 years that the vacancies on the said post have been advertised on 06.01.2016. As per the relevant rules relating to recruitment on the said post maximum age for appearing in such selection is to be determined on the first day of year of recruitment which in the instant case is 01.07.2016. On account of passage of time the petitioner exceeds the maximum age limit of 45 years by 6 days as on 01.07.2016. Therefore, he is being deprived of an opportunity to appear in the aforesaid selection. The petitioner possessing the qualification of Diploma in Lab Technician had a legitimate expectation of appearing in such selection for public employment. The circumstances in which the petitioner has become overage is for reasons beyond his control. Therefore, considering the peculiar facts of the case, the petitioner sought relaxation in the same.
7. It is in this background that the earlier writ petition was decided on 27.01.2016 two days prior to the last date of submission of online application form, which was 29.01.2016, but unfortunately, the Principal Secretary has taken a decision against the petitioner.
8. Having heard learned counsel for the parties and perused the records, this Court is unable to sustain the reasons for rejection of claim of the petitioner for relaxation.
9. Rule 3 of the aforesaid Service Rules, 1993 permits relaxation in age limit prescribed for recruitment on any post in connection with the affairs of the State by the Governor. The present order has been passed by the Principal Secretary, Medical and Health and it nowhere indicates that it has been issued with the approval of the Governor or with his sanction. Apart from it, considering the facts of the present case, it has not been disputed in the impugned order that the last selection for the post in question was held in the year 2007 thereafter several advertisements are said to have been issued, the petitioner has all along claimed he had applied in pursuance to the said advertisement but the selection process could not be completed and was cancelled. The post in question have been advertised after almost 8 or 9 years on 06.01.2016. Due to passage of time the petitioner is overage that too by only 6 days based on the cut of date i.e. 01.07.2016. As far as the reasoning given by the Principal Secretary if relaxation is provided to the petitioner it will open flood gates for others the same can not be sustained for the reason specific Rules have been framed by the State Government, as already referred herein above, in the year 1992, which are still in operation, for the purpose of such relaxation in age limit and if this reasoning is accepted then it will be render the Rules otiose. This reasoning is akin to what is referred in legal parlance as an argument in terrorem. The authority was required to consider the case in the light of the facts existing therein. If in the facts of the case, relaxation ought to be granted under the aforesaid Rules it should have been granted. True, the discretion vested in Rule 3 of the Rules 1992 is to be exercised for justifiable reasons and in exceptional circumstances and not as a matter of rule but this aspect has not been considered by the Principal Secretary in the correct perspective. The Court has no hesitation to record that the facts of the present case do constitute exceptional circumstances and in order to do justice to the petitioner, who approached this Court well in time by filing the first writ petition, it was imperative to grant such relaxation as the petitioner had been denied an opportunity to seek consideration for public employment for the past 9 years in spite of possessing the qualification for the post in question on account of non fructification of the selection process which was initiated but subsequently cancelled.
10. Considering the long passage of time the least that was expected from the authority concerned was to allow such persons who had applied earlier in pursuance of the earlier advertisement to participate. This not having been done, the authority should have at least allowed the petitioner herein to participate after granting relaxation in age as he had approached the Court before expiry of the last date for submission of the forms, while others did not, therefore, clearly his case stood on a different footing vis-a-vis those who did not approach the Court but the Principal Secretary has clubbed the petitioner as also these others in the same category and rejected his claim only for the reason others would also claim same benefit which is apparently unreasonable and unfair. Even discretion has to be exercised in a fair and reasonable manner keeping in mind the object for which the relevant rules bestowing such discretion have been made and not to defeat its purpose.
11. As far as second reasoning is concerned, the Principal Secretary has not pointed out as to what were the special circumstance in the Pharmacists cadre which were considered in the judgments referred in the impugned order so as to make them incapable, in the case of the petitioner and deny him the benefit of the same. He has brushed aside the plea of the petitioner mechanically.
12. In any case for the reasons already mentioned herein above, this Court does not find the impugned order to be justifiable nor reasonable. The concerned official has failed to appreciate the exceptional factual circumstances in correct prospective in the light of the object of the Rules of 1992. The Principal Secretary has taken the impugned decision without consulting the Subordinate Service Commission which was mandatory under the provisions of Rule 3 of the Rules 1993.
13. For the reasons aforesai
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d, the impugned order is quashed considering the fact that the selection is at a stage where the applications have been received online but thereafter no substantial progress has been made and also considering the constraint of time, if the matter is relegated back it would cause grave prejudice to the rights of the petitioner and as there are sufficient reasons for granting relaxation in the maximum age prescribed at least to the petitioner, who had approached the Court prior to 29.01.2016 and not granting such relaxation will be unreasonable and will cause irreparable prejudice to him, therefore, the maximum age prescribed shall be treated as relaxed to the extent the petitioner has overshot it, for the purpose of consideration of petitioner in the selection referred herein above and his case shall be considered accordingly for selection and appointment for the post in question. 14. Needless to say that this order has been passed in the peculiar facts and circumstances which have arisen in this case and shall not be treated as a precedent. 15. The writ petition stands allowed in the aforesaid terms.