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2010 DIGILAW 549 (JK)

Ashok Kumar Bhat v. State Of J&K

2010-11-04

Sunil Hali

body2010
1. Union of India in consultation with the Government of Jammu and Kashmir has adopted a policy for providing employment package to the members of a community, who have migrated from Kashmir Valley after 1st November, 1989. In response to the said policy, the State Government issued SRO No. 412 dated 30.12.2009 called as Jammu and Kashmir "Kashmiri Migrants (Special Drive) Recruitment Rules, 2009". The process for making selection was entrusted to the Jammu and Kashmir, Service Selection Recruitment Board, who vide its Advertisement Notice No. 01 of 2010 dated 12.01.2010 invited applications for various posts. The eligibility provided amongst other things is as under: (a) That the age of a candidate shall not below 18 years and above 37 years in case of Open merit category candidates; (b) That candidate should possess academic/Professional/Technical qualifications and fulfill all other conditions of eligibility prescribed for the posts, for which a candidate seeks his appointment; and (c) The Migrant unemployed youth shall be eligible for appointment against the posts advertised under the Notification and shall have to work within Kashmir Valley and shall not be eligible for transfer out side the valley under any circumstances at any stage for the reason whatsoever. The appointment orders of the selected candidate shall be issued only after the selectee reports in the Valley after furnishing the requisite documents including the agreement in the prescribed form. 2. In pursuance to the said advertisement notice, petitioner has also applied for the post of Teacher. The basic qualification prescribed for the said post in terms of the advertisement notice is 10+2, preference has been given to the candidates having higher qualification and those having passed M.Ed, B.Ed and diploma in ETT/NTT. In this category, the upper age limit was 37 years. The application form of the petitioner was not entertained by the respondent-Service Selection Board on the ground that the date on which the advertisement notice was issued, the petitioner has crossed the upper age limit as provided under the statute. 3. Through the intervention of this court, in terms of order dated 10.5.2010, the petitioner was allowed to appear in the interview at his own risk and responsibility. In pursuance to the direction issued by this court, the petitioner was allowed to participate in the selection process. This court vide order dated 09.08.2010 directed the respondents to produce the result of the petitioner in a sealed cover. In pursuance to the direction issued by this court, the petitioner was allowed to participate in the selection process. This court vide order dated 09.08.2010 directed the respondents to produce the result of the petitioner in a sealed cover. In pursuance to aforesaid direction, Mr. Shukla, learned counsel for the respondent-Board has produced the result of the petitioner in a sealed cover. Perusal of which reveals that petitioner has obtained 51.79 points, whereas the cut of point in the open merit category is 37.58. In normal course, the petitioner should have found his name in the select list, but for the fact that he has crossed the upper age limit of 37 years as prescribed in the notification, has been excluded from the list. Mr. Shukla states at the bar that the only question that requires to be determined by this court is that the petitioner having crossed the upper age limit, therefore, is not eligible to be selected for the said post. He does not want to file objections on behalf of appearing respondents and wants to argue this case on merits, as the issue involved in this case is purely a legal one. 4. Respondent No. 4 represented by Mr. A.H. Qazi, also does not want to file the objections. Nobody has appeared on behalf of respondent No. 2. 5. I have heard learned counsel for the parties. 6. The issue involved in this writ petition relates to relaxation of upper age limit, which matter cannot be considered by this court and the same has to be referred to the competent authority for consideration. As the admission of the writ petition will delay the disposal of the case, therefore, with the consent of learned counsel for the parties, the same is taken up for final disposal at the admission stage. 7. The petitioner has made the grade in the selection process by obtaining 51.79 marks, which are over and above the cut of point i.e. 37.58 in the open merit category. His selection would have automatically been made, but in view of the fact that he has crossed the upper age limit of 37 years, he is not found eligible to be appointed. Even though, the petitioner contends that he had worked as lecturer on contractual basis in the year, 1997-2000, therefore he falls within the category of in-service candidates. His selection would have automatically been made, but in view of the fact that he has crossed the upper age limit of 37 years, he is not found eligible to be appointed. Even though, the petitioner contends that he had worked as lecturer on contractual basis in the year, 1997-2000, therefore he falls within the category of in-service candidates. This in my opinion is not the correct position under law, as this immunity is provided only to those people, who on the date of advertisement notice were in Government service, contractual or on adhoc basis. This is not the case in hand. 8. The stand taken by the respondents is that petitioner cannot be appointed as Teacher as he has admittedly crossed the upper age limit. The issue falls for consideration is whether age can be relaxed in view of the bar created in the Advertisement Notice. 9. Article 37 of the Civil Service Regulations provides that age of direct recruits to Government service in the rest of subordinate and Gazetted Services shall on the first day of January of the year in which the competitive examination is held or the nomination is made in respect of the vacancy to which the direct recruitment is made shall not be less than 18 years and shall not exceed 30 years. It further provides maximum age for such recruitment to the various posts. It also provides that upper age limit for entry into Government service may be relaxed by the competent authority. The provision, however, states that upper age limit for handicapped persons shall be relaxed by five years. This condition would not apply to the categories other than Scheduled Caste. No upper age limit has been provided regarding relaxation of age. 10. However, Article 37, Sub Section (3) contemplates different age limits in respect of direct recruits to the Government service in all the subordinate and Gazetted service on the first day of the January of the year in which the competitive examination is held or nomination is made in respect of the vacancy to which direct recruitment is made. The upper age limit provided for a general category candidate is 35 years. Proviso to this section states that upper age limit shown may be relaxed by the competent authority in respect of any individual case on the merit of each case. The upper age limit provided for a general category candidate is 35 years. Proviso to this section states that upper age limit shown may be relaxed by the competent authority in respect of any individual case on the merit of each case. Section further provides that Government may in respect of any particular service prescribe a different age limit. This in essence, deals with the upper age limit in providing appointment to a particular service. Same criteria have been provided under the Jammu and Kashmir Educational (Subordinate) Service Recruitment Rules, 1979. 11. Analyzing the merits of aforementioned provisions, the following things emerge. 1. That there is upper age limit provided for direct recruits on their initial appointment. 2. That the State Government has powers to grant relaxation in respect of any individual on the merit of the case. 3. That the State Government can provide different age limits for any particular service. 12. It clearly emerges that upper age limit, even though, provided can be relaxed and the State has the powers to provide different age limits for particular service. The power of relaxation, which is to be traced to the rules governing the present case, is under J&K Educational (Subordinate) Service Recruitment Rules, 1979. However, there is no provision in the said rules which provides for relaxation of rules. Under Rule, 13 of the said Rules, it is provided that in regard to all the matter not specifically covered by these rules, the members of the service shall be governed by the rules, regulations and orders applicable to the State Civil Services in general. The rules applicable to the State services in general are Jammu and Kashmir Civil Services (Classification Control and Appeal) Rules, 1956. Section 5 of the said Rules deals with the power of Government to grant relaxation of rules. The said Rule contemplates that any of the rules made under them, may for reasons to be recorded in writing, be relaxed by the Government in individual cases, if Government is satisfied that a strict application of the rule would cause hardship to the individual concerned or confer undue benefit on him. 13. Undoubtedly, the power to relax the rules is contemplated by this provision. Some rules permit relaxation of conditions of service and some permit relaxation of rules. 13. Undoubtedly, the power to relax the rules is contemplated by this provision. Some rules permit relaxation of conditions of service and some permit relaxation of rules. There are two possibilities envisaged while exercising the power of relaxation, first relates to relaxation of conditions of service second permit relaxations of rules. There is no power vested with the State Government to relax the recruitment rules, which are fundamental to the appointment to a service. It envisages that a person cannot be appointed in violation of the fundamental rules of appointment, meaning thereby the mode and method of recruitment. The second condition for relaxation of rules is to relax the rules of service which is not fundamental or does not go to the root of appointment. 14. The State Government may consider relaxation of rules in order to deal with a particular situation in a just and equitable manner. The Scope of rule is wide enough to confer power on the State to relax the requirement of rules in respect of an individual or class of individuals to the extent it may be necessary for dealing with the case in a just and equitable manner. Underlining idea of the relaxation is to mitigate undue hardship of a particular individual or group of individuals to meet a particular situation. Strict application of rules would create a situation, where a particular individual or group of individual may suffer undue hardship. There may be a case where qualified persons may not be available or as in the present case sufficient numbers of persons who may have crossed upper age limit. The power of relaxation can be exercised in order to mitigate hardships or to meet special and deserving situations. In that eventuality, rules are required to be construed liberally. 15. I am fortified my view with a judgment of Supreme Court, titled, J.C. Yadav. v. State and ors reported in AIR 1990 SC 857 , in which it was held as under: "The relaxation of the rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. I am fortified my view with a judgment of Supreme Court, titled, J.C. Yadav. v. State and ors reported in AIR 1990 SC 857 , in which it was held as under: "The relaxation of the rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. The scope of rule is wide enough to confer power on the State Government to relax the requirement of rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner. The power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation. Many a time strict application of service rules create a situation where a particular individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service. In such a situation the Government has power to relax requirement of Rules. The State Government may in exercise of its powers issued a general order relaxing any particular rules with a view to avail the services of requisite officers. The relaxation even if granted in a general manner would ensure to the benefit of individual officers." This decision was followed in Sandeep Kumar v. State of Punjab (1997) 10 SCC 298 , in which it was held as under: "The power of relaxation even if generally included in the service rules could either be for the purpose of mitigating hardships or to meet special and deserving situations. Such rules must be construed liberally, according to the learned judges. Of course arbitrary exercise of such power must be guarded against. But a narrow construction is likely to deny benefit to the really deserving cases. We too are of the view that the rule of relaxation must be a pragmatic construction so as to achieve effective implementation of a good policy of Government." 16. Applying above these principles in the present case, it be seen that employment package has been provided to the members of a migrant community on account of their migration from the Kashmir Valley in the year, 1990, which has not been denied by the respondents. Applying above these principles in the present case, it be seen that employment package has been provided to the members of a migrant community on account of their migration from the Kashmir Valley in the year, 1990, which has not been denied by the respondents. As already discussed supra, the underlining idea of the special employment package is with an intend and purpose to rehabilitate the members of the said community in the Kashmir Valley. As an incentive to allure them, the Government has provided a package and in this respect, rules have also been framed. It may also be noted that only migrant unemployed youths are eligible to apply. The persons, who have been uprooted and are unable to find employment for various reasons, are required to be accommodated by providing this employment package. Underlying objective of the policy is to ensure that the candidates who are otherwise eligible to hold the post and make the grade after proper process of selection are required to be provided employment. 17. In such a situation like this, there may be cases including the case of the petitioner who might have crossed the upper age limit and could not found employment during that period for various reasons. It is a special and peculiar situation where the objective is to provide employment, who is seeking rehabilitation in Kashmir Valley for which all those persons who are qualified and made the grade are required to be accommodated. If strict application of the rules is required to be made, most of the posts are likely to remain unfilled, which will undo the policy. In such a situation liberal view has to be taken by the respondents in the matter of granting relaxation in the upper age limit. 18. Reliance has also been placed by the petitioner on a Government Order No. 1500-GAD of 2000 dated 21.12.2000, which contemplates that relaxation can be granted in case where the candidate is exceptionally qualified. The import of expression exceptionally qualified is always related to the post for which appointment is to be made. The qualification for the post of Teacher is 10+2 and the petitioner is admittedly M. A., B. Ed with an experience of working as Lecturer on contractual basis. Looking to the fact that this appointment is confined to a particular class, it cannot be said that petitioner is not exceptionally qualified in such a situation. The qualification for the post of Teacher is 10+2 and the petitioner is admittedly M. A., B. Ed with an experience of working as Lecturer on contractual basis. Looking to the fact that this appointment is confined to a particular class, it cannot be said that petitioner is not exceptionally qualified in such a situation. This position may not hold good where the area of consideration is District or Province level. This can also be one of the grounds for considering his case for relaxation of age. Moreover, it be noted that petitioner has already made the grade. He has secured 51.79 points, whereas the cut of point in the open merit category is 37.58. The rules admittedly work harshly on the petitioners. 19. Be that as it may, this issue is to be considered by the competent authority, who is required to take a decision in this behalf after considering this aspect and the observations made hereinabove. 20. In view of the above, I allow this writ petition and direct the respondents to consider the case of the petitioner for relaxation of upper age limit within a period of two months and pass appropriate orders in this regard after taking into account observation made herein supra. Till a decision is taken by the respondents, one post of Teacher shall not be filled. Disposed of alongwith connected CMP.