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2018 DIGILAW 559 (JK)

Safya Haider v. State of J&K

2018-07-25

SANJEEV KUMAR

body2018
JUDGMENT : 1. The petitioner in this petition has called in question the advertisement notification No. CEO/K/1136-40 dated 22.05.2009 issued in continuation to the earlier notification issued by respondent No. 4 dated 16.02.2009, whereby the age limit for engagement of candidates in KGBV as on 01.01.2009 was recast. 2. Briefly stated, the facts giving rise to the fling of this petition are that vide notice No. CEO/SSA/09/755-58 dated 16.02.2009 issued by respondent No. 4, which was published in newspaper vide notification No. DIP/J-7336 dated 24.02.2009, zone-wise applications were invited from female candidates permanent residents of Jammu & Kashmir for their engagement as teachers on contractual basis on Rehbar-e-Taleem pattern. In the notification the maximum age limit for applying as on 01.01.2009 was fixed as under:- “Minimum age 18 years Maximum (General) 37 years SC/ST 40 years Handicapped 39 years Ex-Servicemen 45 years.” 3. Responding to the aforesaid notification, the petitioner and few other eligible candidates who were within the prescribed age limit and were otherwise holding eligibility qualification submitted their application forms. A panel of selection was also drawn in which the name of the petitioner figures at serial No. 07. It may be noted that for Marwah zone number of vacancies notified were 07. Before the select panel aforesaid could be given effect to, the respondent No. 4 came up with another notification bearing No. CEO/K/1136-40 dated 22.05.2009 whereby the age limit for engagement of contractual teachers in KGBV as on 01.01.2009 was prescribed as under:- “Minimum age 18 years Maximum age (Gen) 37 years SC/ST/RBA 40 years Handicapped 39 years Ex-Serviceman 45 years.” . The last date for submission of application forms too was extended to 02.06.2009, whereas in the original notification it was by or before 28.02.2009. In view of the prescription of new age limit vide impugned notification some more candidates submitted their application forms. Accordingly, a fresh panel was drawn, as a result whereof, the petitioner was ousted and seven candidates in the order of merit made their place in the select panel. It is this notification of respondent No. 4 issued on 22.05.2009 the petitioner is aggrieved of. 5. Accordingly, a fresh panel was drawn, as a result whereof, the petitioner was ousted and seven candidates in the order of merit made their place in the select panel. It is this notification of respondent No. 4 issued on 22.05.2009 the petitioner is aggrieved of. 5. The petitioner claims that the fresh notification dated 22.05.2009 whereby the upper age limit of the candidates belonging to Resident of Backward Areas (RBA) was extended from 37 to 40 years was issued only to accommodate the candidates who had been incapacitated to apply pursuant to the initial notification being overage. It is submitted by the learned counsel for the petitioner that as is categorically indicated in the advertisement notification published on 24.02.2009, the selection of the candidates was to be made on the pattern of Rehbar-e-Taleem and therefore, the terms and conditions prescribed in Government Order No. 396-Edu of 2000 dated 28.04.2000 would govern the instant selection. It is, thus, submitted that in terms of the aforesaid order, whereby Rehbar-e-Taleem scheme was launched, it is specifically provided that the candidates to be engaged as Rehbar-e-Taleem shall as far as possible fulfill the age qualification as prescribed by the State Government. He, therefore, submits that the State Government under Article 37 of the Jammu and Kashmir Civil Services Regulations, 1956 and Rule 17 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 has prescribed the minimum and maximum age limit for recruitment. The same is, therefore, required to be followed in case of engagement under Rehbar-e-Taleem. It is thus, submitted by the learned counsel for the petitioner that since the prescription of minimum and maximum age is statutory in nature the government by an executive order cannot temper with the same. 6. The respondents have filed their reply in which the impugned notification enhancing the maximum age limit has been sought to be justified on the ground that the government vide its order No. 559-GAD of 2008 dated 23.04.2008 has prescribed the upper age limit for the RBA candidate candidates as 40 years. Therefore, issuance of fresh notification was necessitated to comply with the aforesaid government order. 7. Heard learned counsel for the parties and perused the record available on the file. Therefore, issuance of fresh notification was necessitated to comply with the aforesaid government order. 7. Heard learned counsel for the parties and perused the record available on the file. The only question that arises for determination in this petition is as to what was the maximum age limit prescribed for direct recruitment to the government services at the time the first notification was issued. 8. The facts are not much in dispute. The first advertisement notification issued in February, 2009 (supra) had not provided any separate maximum age limit for candidates belonging to RBA and, therefore, the RBA candidates too were supposed to fulfill the age limit as prescribed for general category candidates i.e. 37 years. That apart, the advertisement notification aforesaid specifically provided that the selection of teachers on contractual basis in KGBV would be on contractual basis on Rehbar-e-Taleem pattern. The Rehbar-e-Taleem scheme was launched in the year 2000 vide Government Order No. 396-Edu of 2000 dated 28.04.2000 whereby the pattern of selection of R-e-Ts to be engaged in different schools having deficiency of staff was elaborately provided. With regard to the minimum and maximum age required to be fulfilled by a candidates for engagement as R-e-T, it was provided that the age limit as far as possible shall be same as prescribed by the State Government. It is, thus, clear that the Rehbar-e-Taleem scheme as promulgated in the year 2000 followed by subsequent government orders making amendments thereto do not provide for a separate age limit for engagement of Rehbar-e-Taleems. It is in this context we need to see as to what was the age limit prescribed by the government for direct recruitment to government services on the date the first advertisement notification was issued i.e. 24.02.2009. 9. As per the stand taken by the respondents in their objections which is not rebutted by the petitioner, the government in the year 2007 had issued government Order No. 559-GAD of 2008 dated 23.04.2008 prescribing the maximum age limit for recruitment in government services for the candidates belonging to RBA category as 40 years. It is, thus, contended that the subsequent notification impugned in this writ petition was issued by respondent No. 4 only to bring the initial advertisement notification in conformity with the aforesaid government order. It is, thus, contended that the subsequent notification impugned in this writ petition was issued by respondent No. 4 only to bring the initial advertisement notification in conformity with the aforesaid government order. Since the government had provided separate maximum age limit for the candidates belonging to RBA category and respondent No. 4 in its initial notification had not made any mention about the aforesaid prescription, as such, fresh notification by way of corrigendum was necessitated. 10. Per contra, the submission of learned counsel for the petitioner is that minimum and maximum age for direct recruitment to government services is always provided by statute, be it J&K Civil Service Regulations or J&K Civil Services (Classification, Control and Appeal) Rules, 1956 and therefore, the same cannot be tempered with, enhanced or decreased by way of an executive fiat. It may be noticed that neither J&K CSR nor the CCA Rules per se apply to the engagements under Rehbar-e-Taleem or SSA Schemes. These appointments are governed by the respective schemes which provide for separate eligibility and the terms and conditions of the engagement. As noted above, the Rehbar-e- Taleem scheme promulgated in the year 2000 does not provide separate age eligibility for engagement as R-e-Ts. It, however, provides that the candidate shall as far as possible fulfill age qualification as prescribed by the State Government. 11. The issue with regard to the applicability of Article 37 of the J&K CSR to the engagement under Rehbar-e-Taleem Scheme came up for consideration before a Division Bench of this Court in the case of Shaheena Masarat vs. State and Others, 2010 (2) JKJ 353 wherein the Division Bench after threadbare discussion in paragraph No. 39 held thus:- “39. We accordingly for the above reasons and also in view of the stand taken by the State that lower and upper age prescribed for making selection/appointment against posts under the Government is being applied to the posts under the Scheme as well, we hold that the words “as far as possible” used in the scheme are to be read down and we have already held in this judgment that the lower and upper age prescribed by the government for seeking appointment against the posts under the government shall be deemed to be the lower and upper age limit fixed for seeking selection/engagement under the scheme as well. The Article 37 of the CSR VI will thus, get attracted and applicable to the selection/ engagement made under the scheme as well.” 12. In view of the law laid down by the Division Bench of this Court in the case of Shaheena Masarat (supra), it is abundantly clear that the minimum and maximum age for direct recruitment to the government services is provided by Article 37 of the J&K CSR Vol. I which is statutory in nature. It is trite that the executive instructions cannot supplant the statutory Rules. Realizing the aforesaid aspect, respondent No. 1 while providing the maximum age limit for candidates belonging to the Socially and Educationally Backward Classes, Resident of Areas Adjoining Line of Actual Control and Resident of Backward Areas etc as 40 years vide Government Order No. 559-GAD of 2008 dated 23.04.2008 (strongly relied upon by the respondents) made a specific stipulation that the finance department will take necessary steps to amend the J&K CSR. From the reply filed by the respondents, it is not discernible as to whether the aforesaid government order was thereafter followed by amendment in the CSR and if yes when such amendment was actually carried in the CSR. 13. In the absence of any specific stand taken by the respondents in this behalf, this Court has no option but to believe that on the date when the first notification was issued, the amendment in Article 37 of J&K CSR had not been effected. If that being so, respondent No. 4 could not have relied upon Government Order No. 559-GAD of 2008 dated 23.04.2008 and issued second notification enhancing the maximum age limit for the candidates belonging to RBA category to 40 years. For facility of reference Government Order No. 559-Gad of 2008 is reproduced hereunder:- “Subject: Enhancement of upper age for recruitment n favour of Socially and Educationally backward classes. Government Order No. 559-Gad of 2008 Dated: 23-04-2008 It is hereby ordered that maximum age limit for direct recruitment to Government service in respect of Socially and Educationally Backward Classes viz. Weak and Under Privileged Classes (Social Castes), Resident of Areas Adjoining Line of Actual Control (ALC) & Resident of Backward Areas (RBA) shall also be 40 years. The Finance Department shall make necessary amendments in the Jammu and Kashmir Civil Services Regulations. By order of the Government of Jammu & Kashmir.” 14. Weak and Under Privileged Classes (Social Castes), Resident of Areas Adjoining Line of Actual Control (ALC) & Resident of Backward Areas (RBA) shall also be 40 years. The Finance Department shall make necessary amendments in the Jammu and Kashmir Civil Services Regulations. By order of the Government of Jammu & Kashmir.” 14. The government order aforesaid makes a specific provision for making necessary amendments in Article 37 of the J&K CSR which deals with minimum and maximum age limit for direct recruitment to the government services. I am in agreement with the learned counsel for the petitioner that in the absence of such amendment in Article 37 of CSR, maximum age limit for the candidates belonging to RBA category could not have been raised to 40 years. The second notification was, thus, illegal and aimed at providing opportunity to the candidates to apply who were overaged as per the first notification. 15. For the foregoing reasons, this petition is allowed. Second notification issued by respondent No. 4 bearing No. CEO/K/1136-40 dated 22.05.2009 along with the second select/merit list prepared by considering the candidates who had applied in response to the second notification is quashed. The respondents are directed to give effect to the select panel as was prepared by considering the eligible candidates in terms of the initial advertisement notification published on 24.02.2009 and issue formal orders of engagement in favour of 07 (seven) candidates in the order of their merit.