S.B. Majmudar, J.
1. The petitioners who are employees of the State of Gujarat challenge in this petition the vires of the proviso to Rule 8(5) of the Gujarat Civil Service Classification and Recruitment (General) Rules, 1967, hereinafter referred as 'the Rules'.
2. The facts leading to the present proceedings may now be stated in brief:
Petitioner No. 1 joined service of the 1st respondent-State of Gujarat as a junior clerk in the Agriculture Department in the office of the Divisional Soil Conservation at Palanpur on July 13,1965. He was confirmed in the said post on January 12,1972. The first petitioner is working on the said post even today. Petitioner No. 2 joined service as a clerk in the District Local Board at Banaskantha as a primary teacher on October 8, 1960. On the introduction of the Panchayati Raj, he was allocated to the District Panchayat, Banaskantha, on April 1, 1963. Petitioner No. 2 even to-day continues as a primary teacher in die service of the Banaskantha District Panchayat.
3. Under the scheme of recruitment to various posts under the 1st respondent-State, different age-limits are prescribed for different posts as per Rule 10 of the State Civil Service Recruitment (examination) Rules, 1969. As per these rules all candidates who want to compete for recruitment to the concerned posts have to fall in the requisite age groups. If they are beyond the concerned age group, they are excluded from the arena of competition for these posts.
4. The 1st respondent, State of Gujarat, have also framed rules named and styled as the Gujarat Civil Service Classification and Recruitment (General) Rules, 1967. Sub-rule (5) of Rule 8 of the said rules provided that upper age limit prescribed in relevant recruitment rules relating to a post offered shall save as otherwise provided under Sub-rule (6), not apply to a candidate who is already in Government service, either as permanent Government servant or as temporary Government servant, officiating continuously for six months in its substantive or leave vacancy or in 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. Sub-rule (6) of Rule 8 read as under:
(6) The provisions of Sub-rule (5) shall not apply to a Government servant when recruitment to a post is done through competitive examination or by direct selection for which experience has not been prescribed as one of the qualifications for such post.
The aforesaid Sub-rules (5) and (6) of Rule 8 underwent an amendment by Government Notification No. GS-(1)-CRR-1167-6 dated January 1, 1970, which was issued by the General Administration Department of the State of Gujarat. As a result of the aforesaid amendment, the said Sub-rule (5) was substituted by the new Sub-rule (5) with two provisos. The newly constituted Sub-rule (5) is as under:
8(5) Notwithstanding anything to the contrary contained in any rules for the time being in force relating to the recruitment to any service or post, the upper age limit for the purposes of recruitment prescribed in such rules shall not apply to a candidate who is already in Gujarat Government service either as a permanent Government servant or as a temporary Government 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.
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 Public Service Commission, a Government 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.
Simultaneously with the aforesaid substitution of Sub-rule (5), the original sub-rule (6) of Rule 8 which is reproduced above was deleted.
5. After the aforesaid amendment in the rules, an advertisement was issued by the Gujarat Public Service Commission, being Advertisement No. 40 published in the Gujarat Samachar dated September 9, 1975, for selection on the basis of examination for the posts of District Registrar, Co-operative Societies Class II and Class I, Superintendent, Prohibition and Excise Class II, Assistant District Registrar Class I and Class II and certain posts in the cadre of Mamlatdar Class II and cadre of Assistant Registrar and District Registrar were mentioned as reserved for Scheduled caste and Scheduled tribes candidates. The said advertisement is at Annexure A to the petition. As per the said advertisement, it was specified that a candidate must have a bachelor's degree or equivalent Government recognised qualification. With regard to the age limit, it was specified that the candidate must not be less than 21 years and not more than 26 years of age. However in the case of Scheduled caste and Scheduled tribes candidate, the upper age limit prescribed was 31 years. The case of the two petitioners is that as they belonged to Scheduled caste the upper limit for both of them as per the aforesaid advertised would be 31 years. But by the time the said posts were advertised by the Gujarat Public Service Commission, they had already crossed the upper age limit of 31 years. Of-course, when they originally entered Government service, they were much below the upper age limit of 31 years. Both the petitioners had applied for the same posts which were advertised, by the Gujarat Public Service Commission as per its advertisement published on September 9,1975. Their applications were rejected by the orders of the Gujarat Public Service Commission dated December 31, 1975 on the ground that they did not fulfil the qualifications relating to the upper age limit as required by the Commission. The petitioners, therefore, have approached this Court seeking a declaration that the 1st proviso to Sub-rule (5) of Rule 8 as substituted by the amendment of 1970 is violative of their fundamental rights guaranteed under Article 16 of the Constitution. A mere look at the aforesaid substituted Sub-rule (5) of Rule 8 of the Rules makes it clear that as the Rule and the first proviso stand, the petitioners could not compete for the posts advertised as both of them had already reached the upper age limit of 31 years which they had crossed since long and much prior to the date of advertisement. Consequently, the petitioners are driven to contend that the relaxation of upper age limit as sought to be provided for by the main body of Rule 8(5) should be available to them and the first proviso which carves out an exception to the said Rule should be treated as non-est, inoperative being violative of their fundamental rights under Article 16 of the Constitution. If the proviso is held valid, then obviously, the petitioners can have no case. Consequently, it is necessary for us to examine the challenge levelled by the petitioners to the vires of the first proviso to Sub-rule (5) of Rule 8 of the Rules.
6. Mr. N.J. Mehta, learned advocate appearing for the petitioners, contended that Rule 8(5) as substituted after the amendment of January 1, 1970 clearly provides that so long as the Government servants are concerned, they were to be permitted to compete for the posts which are advertised by the Public Service Commission without any inhibition as to the provisions regarding the upper age limit for the purpose of recruitment to the advertised posts as prescribed in the concerned recruitment rules. The first proviso to the said Rule 8(5) carves out an exception to the clear scheme of the main part of Rule 8(5) which aimed at exe-noting all the concerned Government servants from the fetter of upper age limits as prescribed by the Recruitment Rules for the concerned advertised posts. But the first proviso to Rule 8(5) stated that exemption from upper age limit will not be available in case of recruitment to those posts for which experience has not been prescribed as one of the qualifications for being appointed to such posts. Mr. Mehta for the petitioners contended that such type of classification as envisaged by the proviso is highly irrational and has no nexus with the object sought to be achieved. Consequently, 1st proviso to Sub-rule (5) of Rule 8 is violative of Article 16. It is difficult to accept the said submission of Mr. Mehta. A close scrutiny of the said rule alongwith the first proviso shows that even though under the main body of Sub-rule (5) it is envisaged that whenever the question of recruitment through competitive examination by the Gujarat Public Service Commission arises, candidates who are already Government servants can compete for the said posts without being inhibited by the prescription of the concerned upper age limits for the respective posts. But that provision is not in absolute terms and it is subject to the proviso which is impugned by Mr. Mehta in the present case. The first proviso classifies the posts for which competitive examination or direct selection has to be held into two broad categories. Those posts which require some experience are placed in one category and those posts where no experience is prescribed are bracketed in another category, ft has been provided by the impugned first proviso to the Rule 8(5) that the Government servants who are already in service will be able to compete for those posts for which experience is prescribed as one of the qualifications without being inhibited by any provision as to upper age ml; meaning thereby that the requirement of the upper age limit will be relaxed in cases where a Government servants want to compete of posts which require qualification of experience. The impugned proviso provides that in cases where competitive examination is to be held for the recruitment to those posts which do not require experience, the concerned Government servants who are already in Government service shall not get benefit of age relaxation. Thus relaxation of age qualification is made dependent by the proviso on the nature of posts for which advertisement is issued. It is clear that the posts for which experience is necessary may be required to be filled in by recruiting existing Government servants who may have put in number of years of Government service and those Government servants may have grown sufficiently old in age and experience both. When the emphasis is on experience cf a candidate in service pinning him down to a particular age limit would frustrate the very object of recruitment. Consequently, in such cases where experienced persons are needed the upper age limit is not much relevant. Hence in such cases relaxation from upper age limit is available to the experienced Government servants as the relevant consideration for being recruited to those posts is experience, whatever may be the age of the candidate. Those posts for which experienced persons are needed form one category of such posts, and for all such posts relaxation of upper age limit is available for all Government servants who want to compete for these posts. But there is also the second category of posts to which recruitment by competitive examination or direct selection is to be held and which do not require any experience as one of the qualifications for such posts. In such cases, where there is no emphasis on experience, it is obvious that all outside candidates as compared to candidates who are coming from the Government service itself will stand on the same footing and all of them will have to compete at par and will have to take the same tests and will have to clear out the rigours of competitive examination or test held by the Public Service Commission. Thus, when recruitment is to be made for those posts where experience is not the requisite qualification, the upper age limit provision prescribing a ceiling for age qualification is to apply uniformly to all candidates for the obvious reason that in such cases the emphasis is not an experience, but the emphasis is on fresh blood available from any source. In such cases, whatever may be the experience of the candidates, it is not treated as a relevant factor. The emphasis is only on qualifications one of which is that the candidate must belong to a particular age group. Therefore, it is obvious that in this category of posts are found those posts where open competition will serve as a filtering process for weeding out unsuitable candidates and for selection of best talent that will be drawn from all candidates similarly situated having the requisite qualifications inclusive of the prescribed age limit qualification. Consequently, the classification of posts into two categories-one comprising of posts which do not require experience and which prescribes upper age limit for all uniformly, and the other category of posts which require experience and consequently which brings in its wake the concept of relaxation of upper age limit for Government servants can be said to be a reasonable classification having nexus with the object sought to be achieved. The object sought to be achieved by the classification is efficiency in Government service. In one category of posts where experience is required, efficiency is linked with experience of the concerned candidate for a particular post and in such cases upper age limit cannot be strictly insisted upon otherwise well experienced candidates may be left out only because they have crossed a given age limit. The experience of the candidates is of essence and not his age. It is trite to say that in getting the requisite experience the concerned candidate may have reached an advanced age, while in other category of posts where experience is not relevant., the provision of upper age limit ensures efficiency linked with fresh outlook from fresh blood which may not be available from candidates who have crossed a given age limit. Thus, the classification envisaged by the proviso so far as it divides different posts in the aforesaid two broad categories cannot be said to be irrational as Mr. Mehta would like us to hold. On the contrary, the aforesaid classification really sub-serves the purpose underlying the classification, namely, efficiency in public service. Hence, it cannot be said that the proviso suffers from any vice of discrimination or is violative of Article 16 of the Constitution. In fact, the proviso treats equals equally. Ail these candidates who want to compete for the posts which do not require any experience must compete on a common footing subject to a given upper age limit. All these conditions who are below that prescribed age limit and belong to the same age group, whether they are drawn from Government service or outside stand on the same footing and have to compete on a common platform; while on the other hand, in cases where the concerned posts require experienced incumbents, existing Government servants who may have crossed a given age limit in getting the requisite experience cannot be shut out from contest for such posts by rigidly insisting on any upper age limit as one of the qualifications for such posts, so that their experience which is a relevant consideration .in the scheme of recruitment to this type of posts can be effectively utilised. In these cases all Government servants are treated alike and they will all obtain a common benefit of relaxation of upper age limit. Thus the proviso far from bzing discriminating, treats equals equally and it refuses to treat unequals equally. Under these circumstances, the challenge to the proviso as levelled by Mr. Mehta is liable to fail.
7. Mr. Mehta at the fag end of his arguments contended that if the aforesaid scheme of classification of posts is tried to be supported by the respondents on the touch stone of experience, even then, some posts may require larger experience, some posts may require smaller experience and in such comigencies there cannot be such an overbroad classification based on experience simpliciter, and consequently such a broad classification as envisaged the proviso would be discriminatory. It is difficult to accept the said submission of Mr. Mehta. Once the scheme of classification as envisaged by the proviso is held to be a rational one, how in practice the rule will be worked out will depend upon facts of each case. But in working out the proviso if different posts requiring different years of experience are all clubbed together, it cannot be said that the original classification would in any case get vitiated by the vice of alleged discrimination. In fact, once it is held that posts which require experience should be classified separately from those which do not require experience, a further sub-classification of these posts requiring experience into sub categories of posts depending upon number of years of experience required may or may not create unnecessary complications and may or may not be gerirEne to the main object of classification, namely, the efficiency in public service. Once the initial classification is held to be valid and well sustained, the supposed vice in the working out of the proviso becomes extinct. Once the proviso is found to be properly enacted, legal and operative, if in practice there is any discrimination on the facts of a given case that will bring forth a different type of challenge with which the present petitioners at this stage are not concerned. Consequently, it cannot be said that the proviso as framed suffers from any real vice of discrimination. If Mr. Mehta imagines any discrimination in its future working, that cannot affect the efficacy of the proviso as framed.
8. The proviso cannot be found fault with on the basis of imaginary discrimination, which may, according to Mr. Mehta, result in future from its working. In fact, there is no scope for any such fear. The proviso has made a clearcut distinction between the posts which require experience and those which do not require it at all. All candidates competing for these concerned categories of posts are treated equally. Therefore, the question of discrimination ends. Any other contention, if at all arising in future on facts of a given case will be de hors the challenge on the basis of Articles 14 and 16 of the Constitution and may lie in some other direction. The proviso as it stands remains fully efficacious and effective. This is the only challenge levelled by the petitioners in the present petition and as the said challenge fails, this petition is found to be devoid of any merit.
9. The result is that this petition is liable to be dismissed. It is not disputed that both the petitioners were age-barred and had crossed the upper age limit of 31 years at the time of advertisement. Once it is held that the posts for which the advertisement was issued by the Gujarat Public Service Commission were those which do not require any experience, the petitioners were required to compete with others subject to the requirement of upper age limit and as they had crossed the upper age limit, they obviously had no qualification to compete for the slid posts and hence they were properly out of the said contest and their applications were rightly rejected, relying upon the impugned proviso which is found to be valid. The result is that the present petition fails and the rule is discharged. In the facts and circumstances of the case, there will be no order as to costs.