2011(1) ALL MR 171
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.B. CHAUDHARI AND S.A. BOBDE, JJ.

Vd. Arati Prabhakar Dubewar Vs. Ayurveda Seva Samiti Sanchalit D.M.M. Ayurved Mahavidyalaya, Yavatmal, Through Its Principal & Ors.

Writ Petition No.4848 of 2009

21st September, 2010

Petitioner Counsel: Shri. Mrs. M. P. MUNSHI
Respondent Counsel: Shri. J. Y. GHURDE,Mrs. B. H. DANGRE,Shri. R. D. KHADE,Mrs. T. D. KHADE,Ms. U. R. TANNA,Shri. R. S. SUNDARAM

Constitution of India, Art.226 - Reservation in service - Post of reader in Ayurved College - Relaxation of upper age limit - 10 year relaxation already given to petitioner being in handicapped category - Additional relaxation of 3 years provided to open category cannot be granted to petitioner. (Paras 7)

JUDGMENT

A. B. CHAUDHARI, J.:- Heard. Rule. Rule returnable forthwith. Heard finally by consent of the learned Counsel for the rival parties.

2. By the present petition, the petitioner has put to challenge the communication dated 25.6.2009, issued by respondent No.2 - Director of Ayurved, rejecting the proposal to appoint her in handicapped category she being above the prescribed age limit.

3. In support of the petition, the learned Counsel for the petitioner made the following submissions.

There is no dispute that the petitioner is qualified to hold the post of reader and accordingly she had appeared for the interview. It is true that her age at the time of advertisement was 45 years 08 months and 02 days i.e. above 45 years. The age limit prescribed by relaxation to the candidates belonging to handicapped category is 45 years. According to the learned Counsel for the petitioner, the petitioner was entitled to relaxation in addition by another three years since in the case of reserved categories, the State Government has relaxed such upper age limit by three years. Not allowing the relaxation of additional three years would amount to discrimination and therefore, this Court ought to direct the authorities to relax her age limit by another three years in addition to the upper age limit, provided by relaxation to the handicapped category up to 45 years. In other words, the learned Counsel for the petitioner argued that the petitioner is entitled to relaxation up to 48 years of age. In her submission, the Central Council of Indian Medicines, which is the Apex body has not provided any upper age limit and respondent No.1 - College being not a Government college but an aided private college, there is no bar for considering the applicability of age as 48 years. According to her, when the Central Council of Indian Medicines has not prescribed any upper age limit, prescription thereof by the Government of Maharashtra will be of no consequence and the said decision of the Government of Maharashtra must yield to the decision by the Central Council of Indian Medicines, which has not provided for any upper age limit.

She relied on the decision of this Court dated 9.3.2006 of Aurangabad Bench in Writ Petition No.3139/2005.

4. Per contra, the learned Additional Government Pleader for respondent No.2 submitted that in respect of the category of disabled candidates in the matter of relaxation of upper age limit, the Government of Maharashtra has issued a separate Government resolution dated 16.6.2001, Annexure R-1, to the affidavit-in-reply on behalf of respondent No.1 when the appointments are made by nominations. The petitioner had applied for the post of reader in the subject of Rasshastra Bhaishajya Kalpana 01 (Open) in the D.M.M. Ayurved College at Yavatmal, which receives 100% salary grant from the Government of Maharashtra. According to the learned Additional Government Pleader, the general administration Department of Government of Maharashtra has relaxed upper age limit of three years in respect of open category candidates by Government Resolution dated 17.8.2004 and up to 38 years in respect of reserved categories. The relaxation of age in respect of handicapped category was made by 10 years i.e. in place of 35 years, the upper age limit was relaxed to 45 years. These categories thus being different, there can be no discrimination as alleged and at any rate, the decision of the Aurangabad Bench did not relate to the candidates belonging to the handicapped category. The learned Additional Government Pleader, therefore, prayed for dismissal of the writ petition.

5. We have heard the learned Counsel for the rival parties and at the outset, we expressed sympathy for the handicapped category person, namely, the petitioner. But then we are unable to extend any benefit in law to her in view of the following discussion.

6. The petitioner has been in employment of respondent No.1 College as a lecturer. The post of reader was to be filled in by direct recruitment. There is no dispute that her age was above 45 years i.e. 45 years 08 months and 02 days on the relevant date. The question that is required to be examined in this petition is only about her claim for additional three years relaxation in the matter of upper age limit for handicapped category candidate, namely, up to 48 years. There is no dispute that the Government of Maharashtra by the Government Resolution dated 16.6.2001 has straightway provided relaxation of 10 years to the candidates belonging to the handicapped categories after considering the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The Government of Maharashtra also extended this benefit of relaxation of upper age limit to the open category candidates by three years and to the reserved category candidates up to 38 years. The submission made by the learned Counsel for the petitioner that a Central Council, which is the Apex body has not provided any upper age limit does not appeal to us. In paragraph No.9 of the affidavit filed by the Central Council of Indian Medicines, following stand has been taken. We quote paragraph No.9 therefrom.

"9. It is submitted that CCIM has not prescribed any upper age limit for appointment to the post of Professor, Reader and Lecturer alongwith reservation and relaxation etc.. CCIM has prescribed the qualification and experience for the post of Professor, Reader and Lecturer. CCIM has no concerned for the appointment/promotion of any individual, CCIM is only concerned whosoever is appointed/promoted should have qualification and experience as prescribed by CCIM. Therefore, where there is no regulation of the CCIM, the rule of concerned State Government/Central Government as the same may be applicable in the matter."

7. It is, thus, clear that the Central Council of Indian Medicines itself states that the provisions regarding reservation and relaxation will have to be made by the concerned Government and the Central Council has not provided with any regulation on that aspect i.e. obviously because the policy of reservation and relaxation is to be implemented by the respective State Government and not by the Central Councils or the Apex bodies. As already stated, the Government of Maharashtra, in so far as handicapped categories are concerned, clearly provided relaxation by 10 years i.e. up to 45 years as against earlier upper age limit of 35 years by taking the policy decision. In other words, the Government of Maharashtra has provided upper age limit of relaxation to the open category candidates by three years, reserved category candidates by five years and to the handicapped category candidates by ten years. The submission that relaxation to the open category candidates of three years that was granted by the Government of Maharashtra should in addition be read to the relaxation of ten years for handicapped category candidates would mean that the petitioner wants benefit of both relaxation for general category candidates and relaxation for disabled category candidates. We do not think such a hotchpotch proposed to be made by the petitioner can be allowed. The categories of the candidates are different and we do not see any discrimination in such matters when the categories are clearly distinct and separate. The decision in the case of Aurangabad Bench has no application for the simple reason that the petitioner/candidate in the category was not a handicapped category candidate. Consequently, we do not find any merit in the present writ petition. The same is, therefore, dismissed. Rule is discharged. No order as to costs.

Petition dismissed.