RAMESHWAR Vs. SECRETARY

JUDGEMENT

(1.) THE prayer in the petition is to direct the respondent No. 2 to allow the petitioner to appear in the interview commencing from 29-8-2011.

(2.) LEARNED counsel for the petitioner submits that an advertisement was published by respondent No. 2 for recruitment of 9 posts of Deputy Director, Public Education on 29-12-2008. It is submitted that the petitioner being the member of Scheduled Caste Category also applied for the same. It is submitted that the petitioner cleared the written test, as the petitioner was selected vide order dated 11-7-2011 provisionally and thereafter date was fixed by the respondent No. 2 for interview. It is submitted that mistakenly the date of birth of the petitioner was mentioned as 10-7-1959, while correct date of birth of the petitioner is dated 10-1-1957. It is submitted that on 10-3-2000 Rule 6 of Civil Services (General Conditions of Service) Rules, 1961 has been amended, according to which no candidate is eligible for appointment to a service on the post who has married before the minimum age fixed for marriage i.e. 21 years. It is submitted that this fact was not disclosed by the respondent No. 2 before appearance in examination. It is submitted that since the marriage of the petitioner took place on 10-5-1978 i.e. prior to amendment in the Hindu Marriage Act, which came in force w.e.f. 1-10-1978, therefore, the amendment is not applicable to the petitioner. It is submitted that since the petitioner was appointed initially on 23-1-1985 in Government service, therefore, amendment in Service Rules, which came in force on 10-3-2000 will not affect the case of the petitioner. It is submitted that the order dated 2-2-2012 passed in W.P.No. 1635/08 in the matter of Ajay Kumar Parsandiya vs. M. P. Public Service Commission will not affect the case of the petitioner, as the same is distinguishable. It is submitted that this aspect of the case has not been taken into consideration in the matter of Ajay Kumar Parsandiya (supra) that if the marriage of the petitioner is solemnized prior to the amendment in the Hindu Marriage Act, then what will be the effect. Learned counsel also placed reliance on a decision in the matter of T. R. Kapur vs. State of Haryana, 1986 (Supp) SCC 584 wherein Hon'ble Apex Court held that benefits acquired under rules made under proviso to Article 309 regarding qualifications for promotion cannot be taken away retrospectively by an amendment to the disadvantage of a Government servant. It is submitted that in the facts and circumstances of the case, petition filed by the petitioner be allowed and necessary directions be issued.

(3.) IN the matter of Ajay Kumar (supra) whereby number of petitions were decided, Divisional Bench of this Court held that the provision of the Act for fixing the age of eligibility of marriage was required to be obeyed since 1978 almost 22 years before the impugned sub-rule was inserted. It was also observed that it cannot be held that the petitioners/candidates who were married before insertion of the sub-rule are not affected by it or that it would be unreasonable or arbitrary to hold them disqualified. In the matter of Gendlal Patel vs. M. P. Public Service Commission passed in W. A. No. 112/08 wherein Divisional Bench vide order dated 27-2-2008 has upheld the disqualification of a candidate for State service on the ground that he married before the minimum age fixed for marriage despite the fact that his marriage took place much prior to the date of coming into force of sub-rule (5). Section 5 of Hindu Marriage Act, 1955 reads as under:-