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2022 DIGILAW 253 (JK)

Najeeb-ur-Rehman v. UT of J&K

2022-05-21

ALI MOHAMMAD MAGREY, PUNEET GUPTA

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JUDGMENT : Ali Mohammad Magrey, J. 1. The Petitioners, stated to be aspirants for J&K Combined Competitive Examination (JKAS), are aggrieved of Order dated 19th of May, 2022 passed by the Central Administrative Tribunal, Srinagar (hereinafter referred to as 'the Tribunal') in OA No. 436/2022, whereby and whereunder the learned Tribunal has declined to pass direction upon the Respondents to consider the averments made by the applicants/Petitioners and has only directed the Respondents to dispose of the representation made by the Petitioners by passing a reasoned and speaking order within a short period of four days, i.e., by 23rd of May, 2022 on the grounds detailed out in the Petition. Simultaneously, the Petitioners had also sought a direction in the name of the Respondents thereby directing them to raise the upper age limit prescribed for General Category candidates to 37 years and 40 years for Reserved and in-service candidates. The grievance so projected by the Petitioners for the relief claimed was having reference to: (i) non-conduct of the J&K Combined Competitive Examination for the year 2020-21; and (ii) the difficulties suffered by the aspirants on account of COVID-19 Pandemic, coupled with the fact that the socio-political situation did not remain favourable during the aforesaid period. 2. Mr. N.A. Beigh, the learned Senior Counsel, appearing on behalf of the Petitioners, while reiterating the grounds projected in the Petition for the relief claimed, has referred to the Judgment passed by the Hon'ble Supreme Court in case bearing 'Civil Appeal No. 2016 of 2022 arising out of SLP (C) No. 4452 of 2022' titled 'High Court of Delhi v. Devina Sharma' and submitted that the Hon'ble Supreme Court, in the aforesaid Judgment, has already granted the benefit of enhancement of upper age limit to the candidates who had applied for Delhi Judicial Service Examination for the year 2022 under similar circumstances as involved herein this case. The learned Senior Counsel further submitted that the aforesaid Judgment passed by the Supreme Court is squarely applicable to the facts and circumstances of the case and, therefore, the Tribunal had no option but to apply the said Judgment to the case of the Petitioners and direct extension of upper age limit in the case of the Petitioners and allow them to compete in the process of examination. It is pleaded that the Government has not considered the claim made by the Petitioners in tune with the mandate of Jammu and Kashmir Combined Competitive Examination Rules, 2008, more specifically proviso to Clause (ii) to Sub-Rule (1) of Rule 8 of the Rules of 2008. 3. While the matter was being considered, we thought it proper to seek the assistance of the learned Advocate General. The learned Advocate General, accordingly, appeared before the Court and advanced his arguments on the issue. It is submitted that the Judgment of the Supreme Court, as referred to and relied upon by the learned Senior Counsel appearing for the Petitioners, is not applicable to the facts and circumstances of the present case. The learned Advocate General, while inviting the attention of the Court to the Judgment aforesaid, submitted that the directions have been passed by the Supreme Court in exercise of power under Article 142 of the Constitution of India which power is not available with the High Court under Article 226 of the Constitution. 4. We have heard Mr. Beig, the learned Senior counsel on behalf of the Petitioners; as well as the learned Advocate General. We have also gone through the pleadings on record and have considered the matter. 5. On an examination of the pleadings on record, what emerges is that the Petitioners, on the strength of their claim, appear to have made a representation before the Government through the Chief Secretary seeking raising of upper age limit under different categories as mentioned therein with the application of proviso to Clause (ii) to Sub-Rule (1) of Rule 8 of the Jammu and Kashmir Combined Competitive Examination Rules, 2008. For facility of ready reference, the aforesaid proviso is extracted as under : "Provided also that for good and sufficient reasons, to be recorded in writing, the Government may prescribe for any particular examination any other upper age limit for open category and reserved category candidates". For facility of ready reference, the aforesaid proviso is extracted as under : "Provided also that for good and sufficient reasons, to be recorded in writing, the Government may prescribe for any particular examination any other upper age limit for open category and reserved category candidates". Perusal of the representation so filed reveals that some candidates, who are stated to be aspirants for the Jammu and Kashmir Combined Competitive Examination, have made a representation to the Government of Jammu and Kashmir through Chief Secretary, stating therein that due to unfavourable circumstances like litigations in matters related to discrepancies and irregularities in recruitment process and several other factors, only two examinations have been conducted by the Commission in the six year period between 2015 to 2020, as such, most of the candidates did not get fair chance to appear in the examination. It is the case of the Petitioners that the Government has not favourably considered the representation and have, instead, substituted the age limit clause in terms of notification dated 12th of May, 2022 without taking into consideration the claim made by the Petitioners. 6. After going through the pleadings on record, we have noticed that the Government, being conscious of the claim of the candidates desiring to compete in the process of Combined Competitive Examination, has, with the application of proviso to clause (ii) of Sub-Rule (1) of Rule 8 of the Rules of 2008, considered the claim and granted benefit of enhancement of age in terms of S.O. 238 of 2022, dated 11th of May, 2022. In terms of the said S.O. dated 11th of May, 2022, the Government prescribed the upper age limit for the Combined Competitive Examination (CCE)-2022 as under:- i. Open Merit candidates: 35 years; ii. Reserved Category candidates and in-service candidates 37 years; and iii. Physically challenged candidates 38 years. In essence, the Government, being conscious of the various relevant parameters, has already enhanced the upper age limit in terms of the aforesaid SO for different categories, however, the Petitioners, seemingly having already crossed the said upper age limit as prescribed in the said notification, are now further claiming enhancement of age to the extent as discussed hereinabove which, by no stretch of imagination, can be specifically directed by any Court or Tribunal. That being so, the learned Tribunal has adopted the proper course in the matter by directing the Respondents to consider the claim of the Petitioners on the touchstone of the law and, therefore, we are of the view that there is no illegality or infirmity in the impugned Order passed by the Tribunal for not accepting the claim of the Petitioners for seeking enhancement of upper age limit. All that the Tribunal could have directed the Government is to accord consideration to the representation filed by the Petitioners which it has done. Furthermore, we are in agreement with the argument put forth by the learned Advocate General that the Judgment passed by the Supreme Court is not applicable to the facts and circumstances of the case of the present Petitioners inasmuch as the Supreme Court has passed the directions therein in exercise of powers under Article 142 of the Constitution which power is not available to this Court. 7. Law on the subject is no more res integra as the prescription of upper age limit amounts to condition of eligibility which is purely the domain of the employer and, by no stretch of imagination, a direction can be passed either by this Court in exercise of power under Article 226 of the Constitution or by the Tribunal to enhance the upper age limit. This view is fortified by the law laid down by the Supreme Court in case titled 'Union of India & Anr. v. Arulmozhi Iniarasu & Ors.', (2011) 7 SCC 397 '. 8. In the above background, we find no merit in this Petition which is, accordingly, dismissed along with the connected CM and, as a consequence thereof, the Order dated 19th of May, 2022 passed by the Tribunal is hereby maintained.