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2012 DIGILAW 414 (JK)

Umar Rasool Reshi v. State of J&K & Ors.

2012-07-11

HASNAIN MASSODI, M.M.KUMAR

body2012
1. The instant appeal under Clause 12 of the Letters Patent Rules is directed against judgment and order dated 08.04.2010, rendered by learned Single Judge, rejecting the claim made by the appellant-writ petitioner that he was eligible to be considered for appointment to the post of Rehbar-e-Taleem. 2. It has come on record that an advertisement notice was issued, inviting applications for appointment to the post of Rehbar-e-Taleem on 23.07.2008. The applications were to be submitted within a period of 10 days. The date of birth of the appellant-petitioner is 16.01.1990. 3. The learned Single Judge has considered the question concerning the relevant date of birth for determining the eligibility of the appellant-petitioner. On the basis of Article 37 of the Jammu and Kashmir Civil Service Regulations, 1956 (for brevity the Regulations), the learned Single Judge has concluded that the age of the direct recruits to the government service in the Subordinate Services has to be determined as 1st 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. The age is required to be not less than 18 years and shall not exceed 30 years. In that regard reliance has been placed on a Division Bench judgment of this Court in LPA No. 20/2009 titled Altaf Ahmad Sheikh v. State, decided on 06.03.2009. 4. Mr. Asif A Bhat, learned counsel for the appellant-petitioner has argued that the scheme concerning Rehbar-e-Taleem does not contemplate a post which may be regarded as a civil post. Therefore, it would not attract the provisions of Article 37 of the Regulations. According to the learned counsel, a candidate is appointed as a Rehbar- e-Taleem for initial period of 2 years with a further extension of 3 years with higher pay. It is only after 5 years that he is considered to be absorbed as a regular teacher and such an incumbent may become the holder of a civil post. 5. Mr. Naik, learned AAG, has controverted the submissions made by the learned counsel for the appellant-petitioner. He has argued that the post of Rehbar-e-Taleem is also a post to be filled up by the State and the Regulations concerning the eligibility at the initial recruitment would apply. 5. Mr. Naik, learned AAG, has controverted the submissions made by the learned counsel for the appellant-petitioner. He has argued that the post of Rehbar-e-Taleem is also a post to be filled up by the State and the Regulations concerning the eligibility at the initial recruitment would apply. According to the learned State counsel, the law is settled by a Division Bench of this Court in Altaf Ahmad Sheikhs case (supra) and the judgment rendered by the learned Single Judger does not suffer from any legal infirmity warranting interference of this Court. 6. Having heard the learned counsel for the parties we are of the considered view that the instant appeal is devoid of merit. It is well settled that in the absence of any fixed date of eligibility in the advertisement notice, or the subordinate legislation, the last date of inviting applications would be the cutoff date for determining the eligibility of a candidate. The aforesaid proposition of law has been laid down by their Lordships of the Supreme Court in cases of Rekha Chaturvedi v. University of Rajasthan & Ors. 1993 Supp (3) SCC 168 and Dr. M. V. Nair v. Union of India & Ors. (1993) 2 SCC 429 . However, in the cases where the legislation or subordinate legislation like Rules and Regulations has fixed the date by providing uniformity, then such a fixation of date must prevail as has been rightly held by the Division Bench of this Court in Altaf Ahmad Sheikhs' case (supra). Moreover, if the argument of the learned counsel for the appellant-petitioner is accepted that the post of Rehbar-e-Taleem is not a civil post then in every recruitment to a civil post the Regulations would not apply because at the time of initial recruitment every recruit is on probation. He becomes member of the service after completing the period of probation. Rehbar-e-Taleem like recruits to a civil post becomes entitled to be considered for regularization after five years. Therefore, we are of the view that the opinion expressed by the learned Single Judge does not suffer from any legal infirmity warranting interference of this Court. 7. Accordingly, the appeal fails and the same is dismissed. 8. No costs.