The State Of Jammu And Kashmir vs Shaheena Masarat

Jammu and Kashmir on 28.04.2000 for promoting and

decentralizing management of elementary education with

community participation and involvement. The further object of

the scheme was to ensure accountability and responsiveness

through a strong backup and supervision through the community

and to operationalize effectively the schooling system at the

grass roots level. According to the scheme, teaching guides

(referred to as ‘Re-T’ hereinafter) in primary and middle schools

were to be appointed to cover for the deficiency of the staff as

per existing norms. An advertisement was published in daily

1 newspaper ‘Aftab’ on 29.11.2002. According to the scheme and

the advertisement, a candidate seeking appointment as Re-T

should be a permanent resident of the State and belong to the

village where the deficiency of the staff was assessed. He/she

should possess the minimum qualification of 10+2 and the

candidate should ‘as far as possible’ fulfill the age qualification as

prescribed by the State Government. The selection under the

scheme for the primary school at Bundook Khar Mohalla

Rainawari was conducted in which 11 candidates applied

pursuant to the Notification dated 29.11.2002. Respondent No. 2

was selected for appointment as Re-T. Respondent No. 1 filed a

writ petition before the High Court of Jammu and Kashmir at

Srinagar under Article 226 of the Constitution of India read with

Section 103 of the Constitution of Jammu and Kashmir for

quashing order No.12-DDC of 2003 dated 14.05.2003 by which

Respondent No. 2 was appointed as Re-T. A learned Single Judge

of the High Court dismissed the writ petition by a judgment dated

08.09.2008. Aggrieved thereby, the first Respondent filed an

appeal which was allowed by the Division Bench of the High

Court. The Division Bench directed the appointment of the

Respondent No. 1 as Re-T within a period of one month from the

date of the judgment. The High Court further directed

2 continuance of the Respondent No. 2 also. State of Jammu and

Kashmir has filed this appeal challenging this judgment and final

order dated 13.4.2010 passed by Division Bench of High Court of

Jammu and Kashmir.

2. The main grievance of the State of Jammu and Kashmir

(Appellant) is that the High Court committed an error in directing

the appointment of Respondent No. 1 and also continuance of

Respondent No. 2. The Respondents were vying for one post of

teacher and the High Court could not have directed the

appointment of both the Respondents. It was contended on

behalf of the first Respondent that the second Respondent had

crossed the maximum age limit of 35 years and was not eligible

to even apply for appointment as a teacher. The learned counsel

for the first Respondent submitted that SRO 30 of 2003 which

relaxed the maximum age for appointment of teacher by 2 years

is not applicable to the instant case. According to the Respondent

No. 1, the learned Single Judge of the High Court dismissed the

writ petition erroneously by holding Respondent No. 2 as being

eligible for appointment as Re-T on a misinterpretation of the

condition relating to upper age limit.

3. Respondent No. 2 contended that her appointment was

strictly in terms of the advertisement and the maximum age was

3 relaxed as per SRO 30 of 2003 which applied to all selections.

The learned counsel for the Respondent No. 2 argued that she

was appointed on 17.05.2003 and she has been continuing since

then. As her remuneration was not being paid since May 2008,

Respondent No.2 filed an interlocutory application in this Court

for suitable directions. During the course of hearing of the

appeal, this Court was informed that Respondent No. 2 has been

paid her salary. It was contended on behalf of Respondent No. 2

that the words ‘as far as possible’ are directory and the

authorities had power to relax the maximum age beyond 35

years. In any event, according to Respondent No. 2, her

appointment should not be disturbed at this stage as 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

areas where there are deficiencies. To give effect to the SSA

scheme, the State Government launched a scheme for

appointment of Re-T teachers in primary and middle schools.

Village Level Committees were constituted under the scheme.

The Zonal Education Officer was designated to be the convenor of

the Village Level Committee. The Village Level Committee has to

prepare a panel after conducting the selection process for

4 appointment as Re-T. The Deputy Commissioner along with the

representative of the Director School Education shall finalise the

selections. The Zonal Education Officer would have to issue

appointment letters. According to the scheme, Re-T is appointed

initially for period of 2 years and thereafter his/her services can

be extended for a further period of 3 years. There is a provision

in the scheme for absorption of Re-T as a General Line Teacher.

Absorption of Re-T is made on the basis of recommendation made

by the Village Level Committee regarding the satisfactory

performance of the teacher.

5. Upper age limit notified in the advertisement for

appointment as Re-T is 35 years as on 01.01.2002 which is the

cut-off date for determining eligibility of a candidate who has

applied in response to the advertisement dated 29.11.2002.

Admittedly, the date of birth of second Respondent is 28.12.1965

and, therefore, she was more than 35 years on 01.01.2002. The

learned Single Judge relied upon SRO 30 of 2003 by which the

upper age limit was relaxed from 01.01.2003 to 31.12.2004.

Thereafter, Rule 17 of the Jammu and Kashmir Civil Services

(Classification, Control and Appeal), Rules 1956 was amended

and upper age limit was relaxed from 01.01.2003 to 31.12.2004.

As the second Respondent was less than 37 years as on

5 01.01.2002, the learned Single Judge held that she was eligible to

be considered for appointment as Re-T. The Division Bench of the

High Court held that Respondent No. 2 was not entitled to seek

benefit of SRO 30 of 2003 as she completed 37 years of age as

on 01.01.2003. We are in agreement with the Division Bench.

SRO 30 of 2003 giving relaxation of upper age limit from

01.01.2003 to 31.12.2004 cannot be made applicable to a

selection which commenced by issuance of the advertisement

dated 29.11.2002.

6. Re-T scheme provides that a candidate shall ‘as far as

possible’ fulfill the qualification as prescribed by the State

Government. The eligibility criteria stipulated by the

advertisement dated 29.11.2002 is that a candidate shall ‘as far

as possible’ fulfill the age qualification as prescribed by the State

Government i.e. the candidate should not be above 35 years of

age. The learned Single Judge of the High Court interpreted the

words ‘as far as possible’ appearing in the scheme as well as the

advertisement in respect of the upper age limit, as directory by

relying upon judgment of this Court in Iridium Indian Tele-

Communication V. Motorola In-Charge,1 whereas, the

Division Bench was of the opinion that the judgment of this Court

1 2005 (2) SCC 145

6 in Iridium Indian Tele-Communication (supra) is not

applicable to the facts of the instant case.

7. In Iridium Indian Tele-Communication (supra), this Court

was concerned with the interpretation clause 37 of Letters Patent

which provided that in making rules and orders under this

clause, the High Court shall be guided “as far as possible” by

provisions of the Code of Civil Procedure. A Full Bench of High

Court of Calcutta in Manickchand Durgaprasad V. Pratabmull

Rameswar2, considered the scope of clause 37 of Letters Patent

and observed that the rules framed under clause 37 would prevail

over the corresponding provisions of the Code of Civil Procedure if

there is any inconsistency. This Court in Iridium Indian Tele-

Communication (supra), upheld the view of the Full Bench of

the Calcutta High Court in Manickchand Durgaprasad (supra)

in so far as it related to interpretation of the words ‘as far as

possible’ in clause 37 of the Letters Patent by holding that the

words ‘as far as possible’ are merely directory.

8. As stated above,the eligibility criteria for appointment as Re-T

by the scheme as well as the advertisement includes a condition

that a candidate shall ‘as far as possible’ fulfill the age

qualification as prescribed by the State Government. There is no 2 AIR 1961 Cal 483

7 dispute that the upper age limit for appointment as Re-T is 35

years. The Division Bench examined the scheme and noticed

that there is no minimum age limit specified and if the words ‘as

far as possible’ for upper age limit are interpreted as directory,

the officers would have discretion to select candidates even after

they cross 45 years. Further, the Division Bench was of the

opinion that there will be no uniformity in selection of Re-Ts in the

State. The scheme would be rendered unconstitutional as being

violative of Articles 14 and 16 of the Constitution of India.

Therefore, the High Court construed the provision relating to

upper age limit as mandatory. We approve the conclusion of the

Division Bench. Appointments to public posts should be strictly in

accordance with Articles 14 and 16 of the Constitution of India.

Eligibility criteria should be uniform and there cannot be scope of

arbitrary selections by unfettered discretion being vested in the

authorities. Construing the provision relating to upper age limit

as directory would be conferring unbridled power in the executive

to choose persons of their choice by relaxing the age beyond 35

years. In such case, the provision would have to be declared as

unconstitutional. Therefore, we are of the opinion that 35 years

is the upper age limit for appointment as Re-T. The 2 nd

Respondent who has crossed 35 years on the cut-off date was not

8 eligible for appointment. The High Court has correctly directed

the appointment of the 1st Respondent as Re-T.

9. Now, the question that remains to be answered is the

continuance of Respondent No. 2. While referring to the scheme

in detail, the High Court took note of the fact that the

Government can relax the upper age limit for regularization of

Re-Ts. The scheme was discontinued and Re-Ts appointed under

the scheme were considered for absorption as General Line

Teachers. Even if a Re-T teacher was overaged, he/she would be

eligible for formal appointment in the Government by relaxation

of age. In view of the above, the Division Bench directed the

continuance of Respondent No. 2.

10. The advertisement in question relates to appointment to a

post of Re-T to which either Respondent No.1 or Respondent No. 2

could have been appointed. The High Court ought not to have

directed the appointment of both the Respondent Nos. 1 and 2.

Having set aside the judgment of the learned Single Judge, the

High Court committed no error in directing the appointment of

Respondent No.1. The direction issued by the High Court to

continue Respondent No.2 is set aside. Respondent No.2 has

been continuing to work from 2004. Therefore, the Appellant is

9 directed to accommodate her in any other vacancy. She shall not

be entitled for any benefits prior to the date of her appointment

afresh other than the salary and other allowances already paid

for her services.

11. The appeal is disposed of accordingly.

.....................................J. [ L. NAGESWARA RAO ]

.....................................J. [SANJIV KHANNA]

New Delhi, September 29, 2021.

10