Supreme Court of India
THE STATE OF JAMMU AND KASHMIR & ORS. versus SHAHEENA MASARAT & ANR. on 29 September 2021
THE STATE OF JAMMU AND KASHMIR & ORS.
v.
SHAHEENA MASARAT & ANR.
(Civil Appeal No. 4991 of 2012)
SEPTEMBER 29, 2021
[L. NAGESWARA RAO AND SANJIV KHANNA, JJ.]
Service Law – Appointment – Respondent no.2 selected forappointment as Re-T (teaching guides) under Rehbar-e-Taleem (Re-T) scheme of appellant-State – Challenged by respondent no.1 –Writ petition dismissed by Single Judge – Appeal, allowed by DivisionBench – Held: 35 years was the upper age limit for appointment asRe-T – Respondent no.2 who had crossed 35 years on the cut-offdate was not eligible for appointment – Division Bench correctlydirected the appointment of the respondent no.1 as Re-T – However,advertisement in question relates to appointment to a post of Re-Tto which either respondent no.1 or respondent no.2 could have beenappointed – Division Bench ought not to have directed theappointment of both the respondent nos.1 and 2 – Direction tocontinue respondent no.2 set aside – Constitution of India – Arts.14, 16.
Constitution of India – Arts.14, 16 – Appointment to publicposts – Compliance of eligibility criteria – Held: Appointments topublic posts should be strictly in accordance with Arts.14 and 16 –Eligibility criteria should be uniform and there cannot be scope ofarbitrary selections by unfettered discretion being vested in theauthorities – Service Law.
Words & expressions – ‘as far as possible’ – Directory ormandatory – Discussed.
Disposing of the appeal, the Court
HELD: 1.1 Upper age limit notified in the advertisementfor appointment as Re-T is 35 years as on 01.01.2002 which isthe cut-off date for determining eligibility of a candidate who hasapplied in response to the advertisement dated 29.11.2002.Admittedly, the date of birth of second Respondent is 28.12.1965and, therefore, she was more than 35 years on 01.01.2002. The
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Alearned Single Judge relied upon SRO 30 of 2003 by which theupper age limit was relaxed from 01.01.2003 to 31.12.2004 SRO30 of 2003 giving relaxation of upper age limit from 01.01.2003to 31.12.2004 cannot be made applicable to a selection whichcommenced by issuance of the advertisement dated 29.11.2002.[Para 5][11-G-H; 12-A-C]B
1.2 The eligibility criteria for appointment as Re-T by thescheme as well as the advertisement includes a condition that acandidate shall ‘as far as possible’ fulfill the age qualification asprescribed by the State Government. The High Court construedthe provision relating to upper age limit as mandatory. TheCconclusion of the Division Bench is approved. Appointments topublic posts should be strictly in accordance with Articles 14 and16 of the Constitution of India. Eligibility criteria should beuniform and there cannot be scope of arbitrary selections byunfettered discretion being vested in the authorities. ConstruingDthe provision relating to upper age limit as directory would beconferring unbridled power in the executive to choose personsof their choice by relaxing the age beyond 35 years. In such case,the provision would have to be declared as unconstitutional.Therefore, 35 years is the upper age limit for appointment asRe-T. The 2nd Respondent who crossed 35 years on the cut-offEdate was not eligible for appointment. The High Court correctlydirected the appointment of the 1st Respondent as Re-T. [Para8][13-A-F]
1.3 While referring to the scheme in detail, the High Courttook note of the fact that the Government can relax the upperFage limit for regularization of Re-Ts. The scheme was discontinuedand Re-Ts appointed under the scheme were considered forabsorption as General Line Teachers. Even if a Re-T teacherwas overaged, he/she would be eligible for formal appointmentin the Government by relaxation of age. In view of the above, theGDivision Bench directed the continuance of Respondent No. 2.The advertisement in question relates to appointment to a postof Re-T to which either Respondent No.1 or Respondent No. 2could have been appointed. The High Court ought not to havedirected the appointment of both the Respondent Nos. 1 and 2.Having set aside the judgment of the Single Judge, the HighH
Court committed no error in directing the appointment ofRespondent No.1. The direction issued by the High Court tocontinue Respondent No.2 is set aside. Respondent No.2 hasbeen continuing to work from 2004. Therefore, the Appellant isdirected to accommodate her in any other vacancy. She shall notbe entitled for any benefits prior to the date of her appointmentafresh other than the salary and other allowances already paid forher services. [Paras 9, 10][13-F-H; 14-A-B]
Iridium Indian TeleCommunication v. Motorola In-Charge (2005) 2 SCC 145 : [2005] 1 SCR 73 – referredto.
Manickchand Durgaprasad v. Pratabmull RameswarAIR 1961 Cal 483 – referred to.
Case Law Reference
[2005] 1 SCR 73referred toPara 6
CIVIL APPELLATE JURISDICTION: Civil Appeal No.4991 of2012.
From the Judgment and Order dated 13.04.2010 of the High Courtof Jammu & Kashmir at Jammu, in LPA SW No.168 of 2008.
Ms. Taruna Ardhendumauli Prasad, Parth Awasthi, Advs. for theAppellants.
Ms. Manjula Gupta, Ms. Nidhi, Ms. Suvarna S. Ganu. Jaydip Pati,Advs. for the Respondents.
The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
Citations and Judicial Treatment
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No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
1. Rehbar-e-Taleem (Re-T) scheme was floated by the State ofJammu and Kashmir on 28.04.2000 for promoting and decentralizingmanagement of elementary education with community participation andinvolvement. The further object of the scheme was to ensureaccountability and responsiveness through a strong backup and supervisionthrough the community and to operationalize effectively the schoolingsystem at the grass roots level. According to the scheme, teaching guides(referred to as ‘Re-T’ hereinafter) in primary and middle schools wereto be appointed to cover for the deficiency of the staff as per existing A
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Anorms. An advertisement was published in daily newspaper ‘Aftab’ on29.11.2002. According to the scheme and the advertisement, a candidateseeking appointment as Re-T should be a permanent resident of theState and belong to the village where the deficiency of the staff wasassessed. He/she should possess the minimum qualification of 10+2 andthe candidate should ‘as far as possible’ fulfill the age qualification asBprescribed by the State Government. The selection under the schemefor the primary school at Bundook Khar Mohalla Rainawari wasconducted in which 11 candidates applied pursuant to the Notificationdated 29.11.2002. Respondent No. 2 was selected for appointment asRe-T. Respondent No. 1 filed a writ petition before the High Court ofCJammu and Kashmir at Srinagar under Article 226 of the Constitution ofIndia read with Section 103 of the Constitution of Jammu and Kashmirfor quashing order No.12-DDC of 2003 dated 14.05.2003 by whichRespondent No. 2 was appointed as Re-T. A learned Single Judge of theHigh Court dismissed the writ petition by a judgment dated 08.09.2008.Aggrieved thereby, the first Respondent filed an appeal which was allowedDby the Division Bench of the High Court. The Division Bench directedthe appointment of the Respondent No. 1 as Re-T within a period of onemonth from the date of the judgment. The High Court further directedcontinuance of the Respondent No. 2 also. State of Jammu and Kashmirhas filed this appeal challenging this judgment and final order datedE13.4.2010 passed by Division Bench of High Court of Jammu andKashmir.
2. The main grievance of the State of Jammu and Kashmir(Appellant) is that the High Court committed an error in directing theappointment of Respondent No. 1 and also continuance of RespondentFNo. 2. The Respondents were vying for one post of teacher and theHigh Court could not have directed the appointment of both theRespondents. It was contended on behalf of the first Respondent thatthe second Respondent had crossed the maximum age limit of 35 yearsand was not eligible to even apply for appointment as a teacher. The learned counsel for the first Respondent submitted that SRO 30 of 2003Gwhich relaxed the maximum age for appointment of teacher by 2 yearsis not applicable to the instant case. According to the Respondent No. 1,the learned Single Judge of the High Court dismissed the writ petitionerroneously by holding Respondent No. 2 as being eligible for appointmentas Re-T on a misinterpretation of the condition relating to upper ageHlimit.
3. Respondent No. 2 contended that her appointment was strictlyin terms of the advertisement and the maximum age was relaxed as perSRO 30 of 2003 which applied to all selections. The learned counsel forthe Respondent No. 2 argued that she was appointed on 17.05.2003 andshe has been continuing since then. As her remuneration was not beingpaid since May 2008, Respondent No.2 filed an interlocutory applicationin this Court for suitable directions. During the course of hearing of theappeal, this Court was informed that Respondent No. 2 has been paidher salary. It was contended on behalf of Respondent No. 2 that thewords ‘as far as possible’ are directory and the authorities had power torelax the maximum age beyond 35 years. In any event, according toRespondent No. 2, her appointment should not be disturbed at this stageas she has already served for 18 years.
4. The Central Government launched Sarva Shiksha Abhiyan(SSA) scheme to improve literacy by providing more teachers in areaswhere there are deficiencies. To give effect to the SSA scheme, theState Government launched a scheme for appointment of Re-T teachersin primary and middle schools. Village Level Committees were constitutedunder the scheme. The Zonal Education Officer was designated to bethe convenor of the Village Level Committee. The Village LevelCommittee has to prepare a panel after conducting the selection processfor appointment as Re-T. The Deputy Commissioner along with therepresentative of the Director School Education shall finalise theselections. The Zonal Education Officer would have to issue appointmentletters. According to the scheme, Re-T is appointed initially for period of2 years and thereafter his/her services can be extended for a furtherperiod of 3 years. There is a provision in the scheme for absorption ofRe-T as a General Line Teacher. Absorption of Re-T is made on thebasis of recommendation made by the Village Level Committee regardingthe satisfactory performance of the teacher.
5. Upper age limit notified in the advertisement for appointmentas Re-T is 35 years as on 01.01.2002 which is the cut-off date fordetermining eligibility of a candidate who has applied in response to theadvertisement dated 29.11.2002. Admittedly, the date of birth of secondRespondent is 28.12.1965 and, therefore, she was more than 35 yearson 01.01.2002. The learned Single Judge relied upon SRO 30 of 2003 bywhich the upper age limit was relaxed from 01.01.2003 to 31.12.2004.Thereafter, Rule 17 of the Jammu and Kashmir Civil Services AB
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A(Classification, Control and Appeal), Rules 1956 was amended and upperage limit was relaxed from 01.01.2003 to 31.12.2004. As the secondRespondent was less than 37 years as on 01.01.2002, the learned SingleJudge held that she was eligible to be considered for appointment as Re-T. The Division Bench of the High Court held that Respondent No. 2was not entitled to seek benefit of SRO 30 of 2003 as she completed 37Byears of age as on 01.01.2003. We are in agreement with the DivisionBench. SRO 30 of 2003 giving relaxation of upper age limit from01.01.2003 to 31.12.2004 cannot be made applicable to a selection whichcommenced by issuance of the advertisement dated 29.11.2002.
6. Re-T scheme provides that a candidate shall ‘as far as possible’Cfulfill the qualification as prescribed by the State Government. Theeligibility criteria stipulated by the advertisement dated 29.11.2002 is thata candidate shall ‘as far as possible’ fulfill the age qualification asprescribed by the State Government i.e. the candidate should not beabove 35 years of age. The learned Single Judge of the High CourtDinterpreted the words ‘as far as possible’ appearing in the scheme aswell as the advertisement in respect of the upper age limit, as directoryby relying upon judgment of this Court in Iridium Indian Tele-Communication V. Motorola In-Charge,[1] whereas, the Division Benchwas of the opinion that the judgment of this Court in Iridium IndianTele-Communication (supra) is not applicable to the facts of the instantEcase.
7. In Iridium Indian Tele-Communication (supra), this Courtwas concerned with the interpretation clause 37 of Letters Patent whichprovided that in making rules and orders under this clause, the HighCourt shall be guided “as far as possible” by provisions of the Code ofFCivil Procedure. A Full Bench of High Court of Calcutta in ManickchandDurgaprasad V. Pratabmull Rameswar[2], considered the scope ofclause 37 of Letters Patent and observed that the rules framed underclause 37 would prevail over the corresponding provisions of the Codeof Civil Procedure if there is any inconsistency. This Court in IridiumGIndian Tele-Communication (supra), upheld the view of the Full Benchof the Calcutta High Court in Manickchand Durgaprasad (supra) inso far as it related to interpretation of the words ‘as far as possible’ in 1 2005 (2) SCC 145H2 AIR 1961 Cal 483
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clause 37 of the Letters Patent by holding that the words ‘as far aspossible’ are merely directory.
8. As stated above, the eligibility criteria for appointment as Re-Tby the scheme as well as the advertisement includes a condition that acandidate shall ‘as far as possible’ fulfill the age qualification as prescribedby the State Government. There is no dispute that the upper age limit forappointment as Re-T is 35 years. The Division Bench examined thescheme and noticed that there is no minimum age limit specified and ifthe words ‘as far as possible’ for upper age limit are interpreted asdirectory, the officers would have discretion to select candidates evenafter they cross 45 years. Further, the Division Bench was of the opinionthat there will be no uniformity in selection of Re-Ts in the State. Thescheme would be rendered unconstitutional as being violative of Articles14 and 16 of the Constitution of India. Therefore, the High Courtconstrued the provision relating to upper age limit as mandatory. Weapprove the conclusion of the Division Bench. Appointments to publicposts should be strictly in accordance with Articles 14 and 16 of theConstitution of India. Eligibility criteria should be uniform and there cannotbe scope of arbitrary selections by unfettered discretion being vested inthe authorities. Construing the provision relating to upper age limit asdirectory would be conferring unbridled power in the executive to choosepersons of their choice by relaxing the age beyond 35 years. In suchcase, the provision would have to be declared as unconstitutional.Therefore, we are of the opinion that 35 years is the upper age limit forappointment as Re-T. The 2[nd] Respondent who has crossed 35 years onthe cut-off date was not eligible for appointment. The High Court hascorrectly directed the appointment of the 1[st] Respondent as Re-T.
9. Now, the question that remains to be answered is thecontinuance of Respondent No. 2. While referring to the scheme indetail, the High Court took note of the fact that the Government canrelax the upper age limit for regularization of Re-Ts. The scheme wasdiscontinued and Re-Ts appointed under the scheme were consideredfor absorption as General Line Teachers. Even if a Re-T teacher wasoveraged, he/she would be eligible for formal appointment in theGovernment by relaxation of age. In view of the above, the DivisionBench directed the continuance of Respondent No. 2.
10. The advertisement in question relates to appointment to a postof Re-T to which either Respondent No.1 or Respondent No. 2 could AB
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Ahave been appointed. The High Court ought not to have directed theappointment of both the Respondent Nos. 1 and 2. Having set aside thejudgment of the learned Single Judge, the High Court committed no errorin directing the appointment of Respondent No.1. The direction issuedby the High Court to continue Respondent No.2 is set aside. RespondentNo.2 has been continuing to work from 2004. Therefore, the AppellantBis directed to accommodate her in any other vacancy. She shall not beentitled for any benefits prior to the date of her appointment afresh otherthan the salary and other allowances already paid for her services.
11. The appeal is disposed of accordingly.
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Appeal disposed of.
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