JUDGMENT
Rajesh Balia, J.
1. Petition comes-up for hearing in the following circumstances:
2. Father of the petitioner was working on the post of Sub. Inspector, Police when he died on 20.1.91. After his death, an application was moved by the petitioner for seeking appointment on the post of Sub. Inspector, Police under the provisions of the Rajasthan Recruitment of the Dependents of Govt. Servants Dying While in Service Rules, 1975, hereinafter referred to as ‘the Rules of 1975’. It is averred by the petitioner that before the death of his father, he had already appeared in the examination, held by the Rajasthan Public Service Commission for the post of Sub. Inspector, Police in the year 1987 under the relevant rules and he had cleared the examination. However, appointment as a result of clearing the examination had not been offered to him because his number was low in the merit list. Petitioner’s application under the rules of 1975 was rejected on the ground that he has become over-age for the appointment on the post of Sub. Inspector, Police under the relevant recruitment rules. It is this order which is under challenge before me in this petition.
3. Petitioner contends that denial of appointment on the post of Sub. Inspector, Police merely on the ground of over-age under the recruitment rules is not justified and such denial is contrary to the provisions of the rules of 1975.
4. The respondents have supported the order that as per the provisions of the Rajasthan Police Subordinate Service Rules, 1989, the upper age limit prescribed for appointment on the post of Sub Inspector, Police is twenty three years on the first January next following the last date fixed for receipt of application and since petitioner’s date of birth is admittedly 15.9.64, petitioner has already crossed twenty seven years and is not eligible to hold the post. It is not disputed that according to educational qualification, petitioner is eligible and also that he had appeared at Rajasthan Public Service Commission examination and has not been offered appointment because his number was low in merit. This has happened before death of petitioner’s father took place.
5. So far as the question whether appointment under the rules of 1975 can-be denied merely on the ground of upper age limit with reference to upper age limit prescribed under the relevant recruitment rules is concerned, the issue is squarely covered by the decision of this Court rendered in Shanti Gopal Purohit v. State of Raj. and Ors. S.B.Civil Writ Petition No. 4815/1990, decided on Feb. 25, 1992 wherein this Court has held after considering the scheme of the rules as under:
From the scheme of the rules, it appears that the provisions of Normal Recruitment Rules are not applicable to recruitment under the rules. Under Rule 5, it is clearly mentioned that ‘in case of deceased Govt. servants, one member of the family who is not already employed… on making employment in Govt. service without delay only against an existing vacancy…in relaxation of the normal recruitment rules, provided such member fulfils the educational qualification prescribed for the post and is also otherwise qualified for Govt. service’. It has further been envisaged in the event of non-availability of a vacancy or any of the members of the family being unqualified or minor, is not found suitable or eligible for immediate employment, then such cases should be considered immediately on the availability of the post or any one of them becomes qualified or eligible for such employment under these Rules. Then ,Rule 4 gives the provisions of rules of 1975 an overriding effect over all other rules. Thus, rr.4 and 5, read together, make it abundantly clear that provisions of normal recruitment rules of a post in any Govt. service are not applicable and appointment under the rules is made in relaxation of all other rules in all manners except educational qualification, prescribed for a particular post. The rules also envisage the appointments to be given on happening of certain exigency like non-availability of vacancy or anyone of them being unqualified or not eligible for appointment under the rules or not eligible for appointment under the rules of 1975, that is to say the eligibility based on age will have to correspond to the eligibility prescribed under the rules of 1975 and not under the relevant provisions of the recruitment rules. Rule 8 on which reliance has been placed also leads to the conclusion that a different age limit has been prescribed for recruitment under the rules than provided under the normal recruitment rules, inasmuch as the minimum age limit under the Govt. service under the rules of 1975 is 16 years only whereas in various other rules, the minimum age for employment is 18 years and above. No maximum age limit for recruitment under the recruitment rules has been provided. However, it is provided not to fix any upper age limit in case of lone candidature of widow of the deceased. This also clearly goes to show that upper age limit for the purposes of giving appointment under the rules could have been provided by the State but has not so far been provided, though it has put an embargo to provide any upper age limit for giving appointment in case of a lone candidature of the widow of the deceased. This means that while the upper age limit could be provided for in case of considering eligibility of a candidate under the rules for appointment whether male or female but no upper age limit could be provided in case of lone candidature of widow of the deceased. However, no upper age limit infact has been provided for giving employment to the dependents even in the circular issued on 4.11.1985 providing for uniform guidelines for assessing the eligibility of the deceased Govt. servant. Coupled- with these provisions when the rules envisage that if appointment cannot be given immediately on making an application for want of vacancy or for want of requisite qualification, the consideration for appointment under the rules will be deferred till vacancy comes into existence or till any of the dependents becomes qualified. This also militates against any prohibition from considering the application of any dependent for appointment under the rules on the ground of upper age limit.
6. Therefore, the application for appointment on the post of Sub Inspector, Police could not be rejected only on the ground of age limit.
7. In this connection, provisions of Rule 5 of the rules of 1975 may be noticed which read as under:
5. Recruitment of a member of the family of the deceased.- -In cases of Govt. servants, who die while in service on or after the commencement of these rules, one member of his family, who is not already employed under the Central/State Government or Statutory Board/Organisations/Corporations, owned or controlled by the Central/State Government, shall on making an application for the purpose, be given a suitable employment in Government service without delay, only against an existing vacancy, which is not within the purview of the State Public Service Commission, in relaxation of the normal recruitment rules, provided such member fulfils the educational qualifications prescribed for the post and is also otherwise qualified for Govt. service. In the event of nonavailability of a vacancy or any of the members of the family, being unqualified or minor, is not found suitable or eligible for immediate employment, then such cases should be considered immediately on the availability of the post or any one of them becomes qualified or eligible for such employment under these rules.
8. It is apparent from the provisions of the rules that prior to substitution of proviso to Rule 5, by notification dated 22.8.1983, appointment under the rules could be given only on a post which was not within the purview of the State Public Service Commission against the existing vacancy. By adding proviso, the embargo on giving appointment on the post which fell within the purview of the Raj. Public Service Commission has been lifted and only service which have been left out of consideration are the Major State Services, mentioned in Rule 3 which are Rajasthan Administrative Service, the Raj. Police Service, Rajasthan Forest Service, the Rajasthan Judicial Service and the Rajasthan Accounts Service. Therefore, the rules envisage for a suitable appointment to be considered under the rules and to a post under any service rules excepting the five major service, named hereinabove, provided dependent of the deceased Govt. servant is qualified and suitable for appointment to such post. The case of applicant for appointment under the rules…be considered in relaxation of General Recruitment Rules of the concerned service excepting the qualification prescribed for the post.
9. It is not disputed before me that petitioner is otherwise eligible for appointment on the post of Sub Inspector under the Rajasthan Police Subordinate Service Rules, 1 989, of which the petitioner’s father was member as far as his educational qualification is concerned. In view of this, there is no impedement in considering the petitioner for adjudging his suitability for appointment on the post of Sub Inspector, Police under the rules of 1975 as a result of petitioner’s father dying while in service.
10. As a result, petition is allowed. The respondents are directed to consider the case of the petitioner for appointment on the post of Sub Inspector, Police by ignoring the maximum age limit prescribed under the rules of 1 989 and if otherwise found suitable, he may be offered appointment under the rules of 1975. Application of the petitioner be decided within three months from now. There will be no order as to costs.
