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2010 DIGILAW 641 (JK)

Bashir Ahmad Najar v. State

2010-12-22

MOHAMMAD YAQOOB MIR

body2010
1. The short controversy projected is as to whether the age for eligibility is to be determined on 1st. January of the year of notification or as on the date of notification. 2. The controversy has already been set at rest in three judgments delivered by the Division Bench of this Court in following cases:- (1) LPA No. 168/2008, titled Ms. Shaheena Masarat v. State and ors, decided on 13.4.2010; (2) LPA No.20/2009, titled Altaf Ahmad Sheikh v. State & ors, decided on 6.3.2009; (3) LPA No.77/2010, titled Hilal Ahmad Sofi v. State & ors, decided on 3.6.2010. 3. In the above referred three judgments, in essence it has been held that Article 37 of the Jammu & Kashmir Civil Service Regulations governs the determination of age, which provides that minimum and maximum age limit is to be determined as on 1st of January of the year. 4. In the cases in hand, notifications have been issued from the office of respondent no.4 on 03.09.2008 and 21.08.2008 respectively, inviting applications from eligible candidates for engagement as R-e-T under SSA Scheme. Petitioners have also responded. Admittedly date of birth of the petitioners, Bashir Ahmed is 05.02.1990 and of Gulam Ahmad Dar is 25.02.1990, so on 1st January, 2008, age of both the petitioners was below 18 years. Petitioners as per their own showing in their writ petitions have stated that they have been verbally informed that their age as on 1.1.2008 was below 18 years so ineligible. 5. Contention of the learned counsel for the petitioners is that the petitioners were properly selected on the basis of merit, they were pursuing B.A. 2nd year and B.A. 1st year respectively. On getting selected, they were advised by the authorities concerned to leave the studies. Acting on such advise they got character and discharge certificates which they produced before the authorities but were not given the appointment on the objection of being less than 18 years of age as on 01.01.2008 as required in terms of Article 37 of CSR. According to the learned counsel, Article 37 of CSR is not applicable. Same position is supported by the judgment rendered in the case captioned "Mohammad Altaf Mir v. Bilal Ahmad Mir & ors." (2009(1) S.L.J 253). 6. According to the learned counsel, Article 37 of CSR is not applicable. Same position is supported by the judgment rendered in the case captioned "Mohammad Altaf Mir v. Bilal Ahmad Mir & ors." (2009(1) S.L.J 253). 6. The said contention of learned counsel for the petitioners has to be repelled because the judgment he has referred to has been taken note of by the Division Bench of this Court in LPA No. 168/2008 and it has been held that the law laid down in the said judgment to the extent that Article 37 of CSR is not applicable to the engagement under the scheme i.e. SSA scheme, is not correct view, so has been over ruled. 7. On the aforesaid premises no mandamus can be issued so as to command the respondents to issue the order of engagement/appointment in favour of the petitioners, when admittedly on 1st January, 2008 i.e. the year of notification, both the petitioners were below 18 years of age so ineligible, therefore, petitions have to be dismissed, are dismissed as such alongwith connected CMPs.