A.M. Ahmadi, J.
1. The petitioners in this group of writ petitions brought under Article 226 of the Constitution were appointed as Gram Sevaks by direct recruitment by the respective panchayats on purely ad hoc and temporary basis. By Rule 3 of the Gujarat District Panchayat Service Selection Committee (Functions) Rules, 1964 when recruitment to the post mentioned in the Schedule is to be made by direct recruitment, the panchayat concerned is required to intimate to the District Panchayat Service Selection Committee the number of vacancies, which are to be filled in or which are likely to arise; and on receipt of such a requisition the Selection Committee is required to follow the procedure laid down in Sub-rule (2) of Rule 3 for the purposes of selecting the candidates for appointment as Gram Sevaks. In the Schedule appended to the said Rules reference to the post of Gram Sevaks is made at Item No. 7.2. In other words, the post of Gram Sevaks can be filled in by direct selection through the Panchayat Service Selection Committee. Admittedly the petitioners of this group of petitions were not selected by the Panchayat Selection Committee before their appointment as Gram Sevaks in the respective Panchayats. They were merely interviewed by the respective Panchayats and were given appointments as Gram Sevaks on purely ad hoc and temporary basis. In other words, their appointments were subject to appointments being made through the Panchayat Selection Committee under the relevant Recruitment Rules.
2. In exercise of powers conferred by Section 323 of the Gujarat Panchayats Act, 1961 the Government of Gujarat framed the Gujarat Panchayat Service (Classification and Recruitment) Rules, 1967. According to Rule 2(f) 'Panchayat Service' means the Panchayat Service as constituted under Section 203 of the Gujarat Panchayats Act. Rule 3 divides the Panchayat Service into two classes namely, the Superior Panchayat Service and the Inferior Panchayat Service. The Superior Panchayat Service consists of posts which are not included in the Inferior Panchayat Service and the Inferior Panchayat Service consists of posts specified in Schedule 1. The post of Gram Sevak is not included in the said Schedule. Rule 7 provides that the qualifications with regard to age, education and experience, etc., shall be those mentioned in Schedule IV and IVA against each post. Rule 9(1) provides that except in the case of services and posts which are not within the purview of the Board or the Selection Committee, recruitment and appointment to all posts shall be made by the appointing authority after consultation with the Board or the Selection Committee, as the case may be, either by direct selection, or by promotion from a lower post or service or by transfer from the State Service to the Panchayat Service, or by re-employment or by deputation. It has been pointed out in the preceding paragraph that the post of a Gram Sevak is within the purview of the Selection Committee. In fact, there is no dispute on this point. Sub-rule (2) of Rule 9 further provides that for the purpose of selecting candidates by direct selection for appointment to posts mentioned in Schedule IV and IV-A or with a view to selecting candidates for preservice training prior to their appointment to such posts, the Board or, as the case may be, the Selection Committee shall arrange to hold qualifying written examinations, if prescribed.
3. The Recruitment Rules in Schedule IV are branch wise and we are in the instant case concerned with those found under the head 'Revenue and Rural Development Branch (Executive).' Item No. 4 thereof concerns Gram Sevaks and it appears that this item came to be amended by the Gujarat Panchayat Service (Classification and Recruitment) (Nineteenth Amendment) Rules, 1980 which came into effect from 15th February 1980. There is no dispute that the present petitions are covered by the said amendment whereby the cadre of 'Gram Sevak' is divided into two cadres, namely: (a) Gram Sevak (Training and Visit System); and (b) Gram Sevak (Multipurpose). Part I of the amended Rules deal with Gram Sevak (Training and Visit System) while Part Il deals with Gram Sevak (Multipurpose). Insofar as the former cadre is concerned, the appointment by nomination and by promotion is permitted in the ratio of 85 : 15 respectively, that is, 85 per cent by nomination and 15 per cent by promotion, In the case of latter cadre the ratio is 1 : 4, that is, 20 per cent by nomination and 80 per cent by promotion. The qualifications for appointment by nomination to the post of Gram Sevak (Training and Visit System) are as under:
(i) Candidates should have at least passed vernacular final examination with diploma of an Agricultural School conducted by Agricultural University;
(ii) Preference shall be given to candidates with higher qualifications viz, B.Sc. degree in Agriculture or such other higher qualifications. Experience in the field of Agricultural practices, knowledge of agriculture, background of village life and working knowledge of local language shall be considered as additional qualification.
(b) Age limit
Candidates should not be below 21 years of age and not above 30 years of age. Candidates belonging to the Scheduled Castes, Scheduled Tribes and other backward class persons recognised by Government for the purpose, should not be above 35 years of age. Upper age limit upto 40 years shall be relaxable in the case of Government servants and Panchayat servants.
(c) Those candidates who are called for selection shall have to appear for a qualifying written test at their own expense.
The qualifications for appointment to the post of Gram Sevak (Multipurpose) by nomination are as under:
(1) Educational qualifications and other qualifications.
(a) Candidates should have at least passed:
(i) vernacular final examination with diploma of an agricultural school; or
(ii) matriculation or secondary school certificate examination.
(b) preference shall be given to candidates with 'higher educational qualifications and experience in the field of social service. Knowledge Of agricultural practices, background of village life and working knowledge of local language shall be considered as additional qualification.
xxx xxx xxx(2) Age Limit-Candidates should not be below 21 years of age and not above 30 years of age. Candidates belonging to the Scheduled Caste, Scheduled Tribes and other Backward class persons recognised by the Government for the purpose should not be above 35 years of age. Upper age limit upto 40 years shall be relaxable in the case of Government and Panchayat servants.
xxx xxx xxx(3) Those candidates who are called for selection shall have to appear for a qualifying written test at their own expenses.
The contention urged on behalf of the petitioners is that no qualifying written test as required by the aforesaid Rules was taken by the Selection Committee before finalising the list for appointment to the post of Gram Sevaks in the respective Panchayats. They, therefore, contend that the select list prepared by the Selection Committee in response to the advertisement No. 2/80-81 issued by the Selection Committee inviting applications for appointment in the aforesaid two cadres was clearly contrary to the Rules as admittedly the said Select List was prepared after a viva voce test at which candidates were interviewed for hardly two or three minutes which resulted in arbitrary selection of candidates in violation of Article 14 of the Constitution as laid down by the Supreme Court in the case of Ajay Hasia v. Khalid Mujib : (1981)ILLJ103SC .
4. The second contention urged on behalf of the petitioners was that some of the petitioners were not called for interview by the Selection Committee on the ground that they were age-barred inasmuch as they bad completed 30 years on 1st June 1980 overlooking the fact that under the Recruitment Rules the upper-limit could be relaxed in the case of Government and Panchayat servants upto the age of 40 years and that in fact by the advertisement itself such relaxation was granted by the Selection Committee.
5. The first contention urged on behalf of the petitioners is two fold, viz', (i) the Select List prepared by the Selection Committee is in violation of the Recruitment Rules inasmuch as no qualifying written test was taken as required by the said Rules and (ii) the selection of candidates on the basis of oral test by interviewing each candidate for two or three minutes was clearly in violation of Article 14 of the Constitution as held in Ajay Hasia's case (supra).
6. The qualifications prescribed for the appointment of a Gram Sevak (Training and Visit System) as well as for the appointment of a Gram Sevak (Multipurpose) inter alia provide that 'those candidates who are called for selection shall have to appear for a qualifying written test at their own expense'. Admittedly the candidates were not subjected to any written test by the Selection Committee before the list for appointment was finalised. It was, therefore, contended by the learned Counsel for the petitioners that the Selection Committee had violated one of the fundamental rules of procedure to be followed for the purpose of selection of candidates for appointment to the aforesaid two cadres. As against this the learned Counsel for the respective Panchayats (except the Sabarkantha District Panchayat) contended that on a true interpretation of the aforesaid rule, it becomes obvious that no obligation is cast on the Selection Committee to bold a qualifying written test but it merely provides that if any qualifying written test is held, the candidates shall appear at such a test at their own expense, In other words, it was submitted that the aforesaid Rule lays emphasis on the candidate being required to bear his own expense if be is called upon by the Selection Committee to appear for a qualifying written test but that does not mean, argued the learned Counsel, that it is imperative to hold a qualifying written test before the selection list is finalised by the Selection Committee. This argument was amplified by pointing out that the Rules do not allocate marks for a written test and a viva voce test and no syllabus is prescribed for the purpose of holding a written test which are clear indications in favour of the view that no obligation was intended to be cast on the Selection Committee to hold a qualifying written test. In my opinion, the language of the Rule under interpretation is clear and unambiguous. It clearly states that those candidates who are called for selection shall have to appear for a qualifying written test at their own expense. It does not state that if a qualifying test is held, they will have to appear at their own expense. That is not the tenor of the rule under construction. The mere fact that separate marks have not been allocated for the written test and the viva voce test and the mere fact that the Rules do not lay down the syllabus for holding a written test do not mitigate against the view that it was imperative on the part of the Selection Committee to hold a written test. It is not necessary under the Rules to indicate the syllabus or to allocate the marks because that is left to the body, in the instant case, the Selection Committee, which is required to hold the tests. These are details which need not be laid down by the Rules but have to be worked out by the body which is enjoined with the duty to hold the written test. It, therefore, seems clear to me that the Selection Committee was bound to hold a qualifying written test for the purpose of selection of candidates for appointment as Gram Sevaks. It having failed to do so clearly acted in vitiation of the relevant Rules and hence the selection made without holding a qualifying test is clearly illegal and liable to be struck down.
7. The second contention urged on behalf of some of the petitioners who were not called for interview on the ground that they were age barred, that is, they had crossed the age of 30 years on 1st June 1980 also requires to be accepted. For appointment as Gram Sevak in both the cadres, the age limit prescribed is not below 21 years of age and not above 30 years of age. The relevant Rules, however, provide that the upper age limit shall be relaxable upto the age of 40 years in the case of Government and Panchayat servants. The petitioners who were not called for interview on the ground that they were age barred were admittedly, at all material times, serving as Gram Sevaks in the respective Panchayats. It was, therefore, open to the Selection Committee to relax the upper age limit and that was done by the advertisement itself, which in terms states that the age limit for Government and Panchayat servants shall be 40 years. In view of the above, the Selection Committee was not light in refusing to call the petitioners for selection on the ground that they were age barred, that is to say, they had crossed 30 years of age on 1st June 1980. Therefore, even on the second contention so far as those petitioners are concerned, the Select List prepared by the Selection-Committee cannot be allowed to stand. In this behalf reference was also made to Role 7(3) of the Recruitment Rules, 1967 which reads as under:
(3) Notwithstanding anything to the contrary contained in these rules or other relevant rules for the time being in force relating to the recruitment to any Panchayat Service or post, the upper age limit for the purpose of recruitment prescribed in such rules shall not apply to a candidate who is already in Gujarat Government Service or Panchayat Service either as a temporary servant or a permanent servant officiating continuously for six months in a substantive or leave vacancy or in a vacancy caused as a result of deputation of other servants and was within the age limit prescribed for the post at the time of his first appointment in Government Service or Panchayat Service, as the case may be;
Provided that such upper age limit shall apply to such candidate in a case where recruitment to a post or service is done through competitive examination or by direct selection for which experience has not been prescribed as one of the qualifications for such post.
Provided further that where a post requiring a medical, engineering or agricultural degree or diploma as a qualification is to be filled by direct selection through the Gujarat Panchayat Service Selection Board or District Panchayat Service Selection Committee, a Government servant or a panchayat servant who was within the age limit when appointed to such post shall, if he subsequently applies for the same post, be entitled to relaxation from the application of the upper age limit prescribed as aforesaid even if experience has not been prescribed as one of the qualifications for such post.
Even according to this Rule the upper age limit is required to be relaxed in the case of Government and Panchayat servants. It is, however, not necessary to interpret this Rule because even otherwise on the basis of the Rules contained in Schedule IV in respect of Revenue and Rural Branch (Executive), the Selection Committee was entitled to relax the upper age limit which it did by the advertisement issued in this behalf inviting applications for appointment to the post of Gram Sevaks.
8. It was further submitted by the learned Counsel for the petitioners that the selection made solely on the basis of the viva voce test clearly offends Article 14 of the Constitution as held by the Supreme Court in Ajay Hasia's case (supra). Mr. Vakharia, however, invited my attention to a subsequent decision of the Supreme Court in Lib Dhar v. State of Rajasthan : (1981)IILLJ297SC . In the view that I have taken on the interpretation of the relevant Rule regarding the holding of a written qualifying test, it is not necessary to examine this contention urged on behalf of the petitioners.
9. Mr. M.A. Panchal, who appears for some of the Panchayats, however, contended that since the petitioners had appeared at the oral interview without protest, they were estopped from challenging the selection made on the basis of the viva voce test held by the Selection Committee. There is no merit in this contention for the simple reason that there cannot be any estoppel where the grievance is that statutory rules have been violated. In cases where the challenge is based on the ground that the authority has failed to act in accordance with the statutory rules, the plea of estoppel cannot be sustained.
10. It may be clarified that in the case of Sabarkantha District Panchayat, after the receipt of applications, interviews have not been held by the Selection Committee, presumably because the question whether a written qualifying test is required to be taken under the Recruitment Rules Was in doubt. It may also be mentioned that Item No. 4 of the Recruitment Rules pertaining to Gram Sevaks has been further amended by a notification dated 25th September 1981 issued by the State Government whereby it is provided that:
The selection shall be made on the basis of the qualifying written test and oral interview. The total marks for oral interview shall not be more than 10 per cent of the total marks for written test.
11. In view of this clarification so far as future selections are concerned, the doubt has been removed.
11. In the result, therefore, the petitions succeed. It is hereby directed that:
(i) the Select List prepared by the Selection Committee in respect of appointments to the post of Gram in the various Panchayats solely on the basis of the oral test is quashed and set aside and it is directed that no appointment shall be made therefrom;
(ii) The question of age-bar shall be reconsidered by the Selection Committee in the case of those candidates who were not called for interview solely on the ground that they were age-barred in the light of the observations made in this judgment and having regard to the provision in Rule 7(3) of the Recruitment Rules wherever applicable;
(iii) Candidates who applied under the advertisement, Annexure 'C' to Special Civil Application No. 1801 of 1981 shall be recalled for test in the light of the observations made in this judgment and having regard to the amendment made by the notification of 25th September 1981;
(iv) while selecting candidates for appointment to the posts of Gram Sevaks weightage in regard to experience shall be given as at the relevant date mentioned in the said advertisement;
(v) the Selection Committee should complete the selection process within a period of two months from today in the light of the observations made in this judgment and the aforesaid directions;
(vi) those who are presently in position in the various District Panchayats shall not be disturbed till fresh selections are made by the Selection Committee for the respective District Panchayats; and
(vii) those petitioners who were discharged on appointments having been made from the impugned select list prepared by the Selection Committee shall be reinstated with full back wages in the respective Panchayats by creating supernumerary posts, if necessary, till a fresh select list is prepared and appointments are made therefrom.
The Rule is made absolute accordingly in all these petitions. There will be no order as to costs.