JUDGMENT :

JYOTSNA REWAL DUA, J.:

1. Petitioner claims that for the selection process undertaken by respondent No. 8 in the year 2011 for filling up the posts of Headmaster by way of direct recruitment, the maximum age limit prescribed for an applicant was 45 years. The private respondents had crossed this upper age limit, therefore, they could not be appointed as Headmasters. Their selection and appointment as Headmasters being illegal requires to be set aside and instead petitioner deserves to be appointed as a Headmaster.

Claim & Defence

2. Petitioner's case in nutshell is that respondent No. 8/Himachal Pradesh Public Service Commission initiated the selection process for filling up 212 posts of Headmasters [School Cadre] Class-II (Non-Gazetted) vide advertisement dated 23.09.2011. Petitioner, respondents No. 3 to 7 and various others participated in the selection process. Respondents No. 3 to 7 were selected and appointed as Headmasters vide office order dated 25.09.2012. The maximum age limit prescribed under the Recruitment and Promotion Rules for applying to the posts in question was 45 years. Respondents No. 3 to 7 had crossed 45 years of age, therefore, they were ineligible for the post. In the waiting list prepared on the basis of merit amongst General Category candidates, name of the petitioner figured within next 5 candidates. After exclusion of ineligible persons i.e. respondents No. 3 to 7, the petitioner would be entitled to be appointed as Headmaster.

3. Respondents have not disputed private respondents' (No. 3 to 7) crossing over the age of 45 years by the cut-off date. Their stand is that respondents No. 3 to 7 were serving with the State of Himachal Pradesh at the time of applying for the posts. They had applied for the posts through proper channel. The maximum age limit mentioned in the advertisement was not applicable to the candidates in service of State of Himachal Pradesh, therefore, appointments of respondents No. 3 to 7 were in order. In support of such stand, reliance was placed by the respondents upon Rule 6 of the Recruitment and Promotion Rules 1997 for the posts of Headmasters notified on 5.2.1998 (in short R&P Rules 1997), the advertisement dated 23.9.2011 and the Government instructions with respect to age limit for direct recruitment of applicants in service of the respondent-State.

Background

4. For appreciating respective stands taken by the parties, the rule position, the amendment thereof, stipulations in the advertisement and the relevant Government instructions need to be noticed first.

5. The Recruitment and Promotion Rules 1997 for the post of Headmasters were notified on 5.2.1998. Rule 10 of these rules provided filling up 75 % vacancies by promotion and 25% by direct recruitment. Rule 6 stipulated age for direct recruitment ‘Between 18 and 35 years'. Rule 6 also carried various provisos. As per the first proviso, the prescribed upper age limit for direct recruitment was not applicable to the candidates already in service of the Government including those who had been appointed on ad-hoc or on contract basis. Rule 6 of R&P Rules 1997 with all its provisos is extracted as under:—

“6. Age for direct recruitment. Between 18 and 35 years.

Provided that the upper age limit for direct recruits will not be applicable to the candidates already in service of the Govt. including those who have been appointed on adhoc or on contract basis;

Provided further that if a candidate appointed on adhoc basis or on contract basis had become over-age on the date when he was appointed as such he shall not be eligible for any relaxation in the prescribed age limit by virtue of his such adhoc or contract appointment;

Provided further that upper age limit is relaxable for Scheduled Castes/Scheduled Tribes/Other categories of persons to the extent permissible under the general or special order(s) of the Himachal Pradesh Government’

Provided further that the employees of all the Public Sector Corporations and Autonomous Bo