A.S. Qureshi, J.
1. The petitioners herein were employed as Aayas at Ram Rajendrasinhji Hospital and Baluba Maternity Home, Limbdi in Surendranagar District. They were employed over a period of two years and more on several occasions each time for a period of 29 days at a stretch. The petitioner No. 1 whose date of birth is stated to be 23rd November. 1951, was employed for the first time as Aaya on 2nd April, 1980 for a period of 29 days. Thereafter, she has been employed on 18 occasions with short intervals, each time the employment being for 29 days. Thus, from 2nd April, 1980 upto 22nd June. 1983, she had worked on 19 occasions, each time 29 days making a total of 551 days. Similarly, the petitioner No. 2 was employed as Aaya for the first lime on 10th June, 1981 for a period of 29 days. Thereafter she was employed 12 times for a period of 29 days at a time till 22nd June, 1983. Similarly, the petitioner No. 3 also was first appointed as Aaya on 22nd July, 1981 for 29 days and was subsequently appointed from time to time on 12 different occasions, each time for 29 days till 24th May, 1983. The three petitioners having worked as Aayas for more than two years although there were gaps in between and each time the employment was for a period of 29 days, they were sent before the Selection Board for permanent appointment. The appointing authority in the case of the petitioners is the Civil Surgeon, Limbdi. He selected the petitioners and recommended their permanent appointment as Aayas in the said hospital. The Director of Health and Medical .Services by his letter dated 22nd May, 1984 turned down the recommendation of the Civil Surgeon, Limbdi, on the ground that the petitioners had passed the age limit of 30 years on the date of their permanent appointment. Against the said order of the Director, the present petition is filed.
2. Mr. A. D. Padival for Mr. P. M. Thakker, the Learned Counsel for the petitioners submits that although the petitioners were employed for a period of 29 days on each occasion, in fact, they had served for about 2 years with short intervals. Therefore according to him, the petitioners are entitled to be appointed permanently on the basis of their service for nearly two years. Mr. Padival has further argued that it is not in dispute that the petitioners were within the age limit of 30 years when they were first employed on temporary basis for a period of 29 days. He has submitted that as per the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 (hereafter Rules), the petitioners are entitled to be employed on a permanent basis. He relies on Rule 8 Sub-rule (5), which provides as under:
(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.
Mr. Padival submits that although the petitioners have not continuously worked for a period of six months at a stretch at any time, but considering that they had been employed for 29 days on many occasions when taken together comes to much more than six months. According to him, the State has been resorting to this tactics of employing for a period of 29 days at a time and re-employing for a similar period after a short break, is only with a view to circumvent the provision of the aforesaid Sub-rule (5). He therefore submits that the petitioners who were within the age limit of 30 years when they were first employed on a temporary basis, now it is not open to the State to say that the petitioners have passed the age limit at the time of their permanent employment. According to Mr. Padival, the petitioners were also in the Government service before they had reached the age limit of 30 years and that they have been kept for more than two years on a temporary basis employing for a period of 29 days at a time over a period of more than two years, the question of age limit does not arise for their appointment in permanent service.
3. Mr. B. D. Desai, the learned A.G.P. has urged that the petitioners having been employed for only 29 days on each occasion, it cannot be said that they have served continuously for a period of six months to come within the perview of Sub-rule (5) of Rule 8 of the aforesaid Rules. The contention of Mr. Desai must be rejected. The fact that the petitioners have worked for a period of nearly two years although with short intervals and only for 29 days at a stretch, cannot be taken to mean that they have not worked for a period of six months continuously. If they had been given continuous employment it would have been much longer than six months. But by resorting to the subterfuge of employing for 29 days at a stretch, an attempt is made to circumvent the aforesaid provision of the Rules. Technically, of course, it may be correct to say that the petitioners have not worked continuously for a period of six months, but this technicality cannot be allowed to perpetrate injustice. The re-employment over and over again although for 29 days at a time, must be regarded as continuous for the purpose of giving rational and just meaning to the aforesaid provision in the Rules. Even if a private employer were to resort to this kind of unfair tactics, it would be regarded as bad enough. But the State resorting to these kinds of unfair tactics must be denounced in no uncertain terms. It does not behove the State as an employer to resort to the exploitation of its employees especially those belonging to the lowest stratum, the poor, the ignorant and the weak ones. The petitioners who were working as Aayas i.e. Class-IV servants doing menial job of cleaning the dirt in the hospital. The fact that they have been subjected to this unfair treatment should disturb the conscience of any right thinking person. It is difficult to see how the Director of Health and Medical Services tried to take shelter behind the provisions of the Rules when the Civil Surgeon, Limbdi, had recommended their appointment as permanent Aayas. The Civil Surgeon, Limbdi, was justified in taking the view that the petitioners were within the age limit when they were first employed on temporary basis. It is surprising that the Director turned down the recommendation of the Civil Surgeon on the flimsy and untenable ground that the petitioners had passed the age limit of 30 years at the time of their permanent appointment and that they could not get the benefit of Sub-rule (5) of Rule 8 of the Rules as they had not put in a continuous service for more than six months. The stand taken by the Director is based on a misconception. He is entirely wrong and hyper technical in taking the view that the petitioners had not put in a continuous service of six months because they were employed for 29 days at a time and that there were short breaks in between various re-employments. It is hoped that the State as an employer, will not resort to such subterfuge in future.
4. Mr. Desai has also urged that under Sub-rule (2) of Rule 8, the appointing authority has power to relax the age limit in favour of candidates belonging to the Scheduled Castes and Scheduled Tribes only in cases of a service or post in Subordinate service or of a State service where the age limit does not exceed 40 years, it may be relaxed upto five years. Mr. Desai points out that under Rule 4 Sub-rule (1), the service and post of class I and II are known as State Services. Under Sub-rule (2) services and postes in Class III are known as Subordinate Services, and under Sub-rule (3) the services and posts in Class IV are called Inferior Services. According to Mr. Desai, there can be age relaxation under Rule 8(2)(a) only in respect of Class-I, Class-II and Class-Ill only but not in respect of Class-IV service, who are not included in the said clause. He therefore submits that the petitioners being Class-IV employees, there cannot be any age relaxation although the petitioner No. 1 belongs to the Backward Class and petitioner Nos. 2 and 3 belong to Scheduled Castes.
5. It is really difficult to understand how and on what basis Class-IV servants are excluded from the benefit of the Rule regarding relaxation of age limit. If the servants in Class-I, Class-II and Class-Ill can get benefit of age relaxation, there can be no rational reason why Class-IV should be excluded from it. The purpose of age relaxation in the case of Scheduled Castes and Scheduled Tribes is quite obvious. They being the unfortunate section of the community, they cannot compete with others on equal basis and therefore the age relaxation in their cases is justifiable. But to achieve that object, only Class-I and Class-II and Class-III should be given, the benefit of age relaxation and Class-IV should be excluded from it, is patently discriminatory and violative of the petitioners' fundamental right to equality under Article 14 of the Constitution of India. It is hoped that the Government will apply its mind to this aspect of the matter and remove this anomaly. In this case however the application of this particular rule of relaxation beyond 40 years' age limit does not arise because the petitioners were within the age limit when they were employed on a temporary basis. Therefore, they are entitled to the benefit of Rule 8(5) as stated above.
6. In the result, the petition is allowed. A writ of certiorari shall issue quashing and setting aside the impugned order dated 22nd February, 1984 of the Director of Health and Medical Services, turning down the appointments of the present petitioners on the ground that they had passed the age limit on the date of their permanent appointment. A writ of mandamus shall also issue directing the respondents to appoint the petitioners as Aayas in the aforesaid Hospital with effect from 22nd February, 1984. The respondents are further directed to pay the petitioners their salary from the date of their deemed appointment on 22nd February, 1984 till today within a period of four weeks from the date on which the writ is received. The petitioners shall be employed on their respective posts within a week from the date of receipt of writs. Writs to issue immediately. Rule made absolute. There shall be no order as to costs.