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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JAIPUR BENCH, JAIPUR

ORDER

S.B.CIVIL WRIT PETITION NO.14066/2008

Chandan Singh

Versus

The State of Rajasthan and others

Date of order ::: February 09,2009

HON'BLE MR.JUSTICE PREM SHANKER ASOPA

Ms.Srijana Shreshth, for the petitioner

Mr.Hemant Mathur,Dy.Govt.Counsel

BY THE COURT

(1)

Issue notice to the respondents.

(2)

Mr.Hemant Mathur, Dy. Govt. Counsel is directed to accept

the notices.

(3)

With the consent of counsel for both the parties, the writ

petition has been heard finally and the same is being decided.

(4)

Counsel for the petitioner submits that the petitioner is

already working as Laboratory Technician from 28.4.2006 on ad

hoc temporary basis in the office of Project Director, Rajasthan

State Aids Control Society, Medical and Health Services,

Rajasthan, Jaipur therefore, he is entitled for the benefit of Rule

13(viii) of the Rajasthan Rural Medical and Health Service Rules,

2008 (in short `the Rules of 2008') but the same is not being

granted. The alternative ground which has been taken by the

petitioner is that as per the judgment of the Supreme Court in

Union Public Service Commission V. Dr.Jamuna Kurup & ors.

(2008 Lab.I.C. 3583) contract employees have also been held

entitled to age relaxation. The respondents have acted contrary to

the aforesaid judgment of the Supreme Court in Dr.Jamuna

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Kurup.

(5)

Submission of Mr.Mathur,Dy. Govt.Counsel is that the

petitioner is not entitled to the relief prayed by him.

(6)

I have gone through record of the writ petition and further

considered the aforesaid submissions.

(7)

Before proceeding further, it is relevant to quote Rule 13

(viii) of the Rules of 2008 and relevant portion of paras 12 and 13

of the Supreme Court judgment in Dr.Jamuna Kurup. The same

are as under:

“Rule 13(viii) of the Rajasthan Rural Medical and Health

Service Rules, 2008.

“13(viii) that the persons appointed temporarily to a

post in the Service shall be deemed to be within the age limit,

had they been within the age limit when they were initially

appointed even though they have crossed the age limit when

they appear finally before the Committee/Commission and shall

be allowed up to two chances had they been eligible as such at

the time of their initial appointment.”

Relevant portion of Paras 12 and 13 of the Supreme

Court judgment in Dr.Jamuna Kurup (supra)

“Employment under the Municipal Corporation could be

either permanent/regular or short term/contractual. Age

relaxation given to 'municipal employees' in the matter of

recruitment to posts in Municipal Corporation would therefore

include persons working on contract with the Corporation.

Moreover the term `employee' is not defined in the Act. Nor is it

defined in the advertisement. If the intention of MCD and UPSC

was to extend the age relaxation only to permanent employees,

the advertisement would have stated that age relaxation would

be extended only to permanent or regular employees of MCD

or that the age relaxation would be extended to employees of

MCD other than contract or temporary employees. The fact

that the term `employees of MCD' is no way restricted, makes it

clear that the intention was to include all employees including

contractual employees.

The ordinary meaning of `employee' is any person

employed on salary or wages by an employer. When there is a

contract of employment, the person employed is the employee

and the person employing is the employer. In the absence of

any restrictive definition, the word `employee' would include

both permanent or temporary, regular or short term,

contractual or ad hoc.”

(emphasis supplied)

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(8)

In my view, the petitioner is not entitled for the benefit of

Rule 13(viii) of the Rules of 2008 for the simple reason that no

post was earlier advertised nor the petitioner was appointed

temporarily under the Rules of 2008 i.e. 18.2.2008.

(9)

As regards petit