THE STATE OF JAMMU AND KASHMIR & ORS. versus SHAHEENA MASARAT & ANR.

Citation: [2021] 9 S.C.R. 7 · Decided: 29-09-2021 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Disposed off

Cited by 5 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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THE STATE OF JAMMU AND KASHMIR & ORS.
v.
SHAHEENA MASARAT & ANR.
(Civil Appeal No. 4991 of 2012)
SEPTEMBER 29, 2021
[L. NAGESWARA RAO AND SANJIV KHANNA, JJ.]
Service Law – Appointment – Respondent no.2 selected for
appointment as Re-T (teaching guides) under Rehbar-e-Taleem (Re-
T) scheme of appellant-State – Challenged by respondent no.1 –
Writ petition dismissed by Single Judge – Appeal, allowed by Division
Bench – Held: 35 years was the upper age limit for appointment as
Re-T – Respondent no.2 who had crossed 35 years on the cut-off
date was not eligible for appointment – Division Bench correctly
directed the appointment of the respondent no.1 as Re-T – However,
advertisement in question relates to appointment to a post of Re-T
to which either respondent no.1 or respondent no.2 could have been
appointed – Division Bench ought not to have directed the
appointment of both the respondent nos.1 and 2 – Direction to
continue respondent no.2 set aside – Constitution of India – Arts.
14, 16.
Constitution of India – Arts.14, 16 – Appointment to public
posts – Compliance of eligibility criteria – Held: Appointments to
public posts should be strictly in accordance with Arts.14 and 16 –
Eligibility criteria should be uniform and there cannot be scope of
arbitrary selections by unfettered discretion being vested in the
authorities – Service Law.
Words & expressions – ‘as far as possible’ – Directory or
mandatory – Discussed.
Disposing of the appeal, the Court
HELD: 1.1 Upper age limit notified in the advertisement
for appointment as Re-T is 35 years as on 01.01.2002 which is
the cut-off date for determining eligibility of a candidate who has
applied in response to the advertisement dated 29.11.2002.
Admittedly, the date of birth of second Respondent is 28.12.1965
and, therefore, she was more than 35 years on 01.01.2002. The
[2021] 9 S.C.R. 7
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
learned Single Judge relied upon SRO 30 of 2003 by which the
upper age limit was relaxed from 01.01.2003 to 31.12.2004 SRO
30 of 2003 giving relaxation of upper age limit from 01.01.2003
to 31.12.2004 cannot be made applicable to a selection which
commenced by issuance of the advertisement dated 29.11.2002.
[Para 5][11-G-H; 12-A-C]
1.2 The eligibility criteria for appointment as Re-T by the
scheme as well as the advertisement includes a condition that a
candidate shall ‘as far as possible’ fulfill the age qualification as
prescribed by the State Government. The High Court construed
the provision relating to upper age limit as mandatory. The
conclusion of the Division Bench is approved. Appointments to
public posts should be strictly in accordance with Articles 14 and
16 of the Constitution of India. Eligibility criteria should be
uniform and there cannot be scope of arbitrary selections by
unfettered discretion being vested in the authorities. Construing
the provision relating to upper age limit as directory would be
conferring unbridled power in the executive to choose persons
of their choice by relaxing the age beyond 35 years. In such case,
the provision would have to be declared as unconstitutional.
Therefore, 35 years is the upper age limit for appointment as
Re-T. The 2nd Respondent who crossed 35 years on the cut-off
date was not eligible for appointment. The High Court correctly
directed the appointment of the 1st Respondent as Re-T. [Para
8][13-A-F]
1.3 While referring to the scheme in detail, the High Court
took note of the fact that the Government can relax the upper
age limit for regularization of Re-Ts. The scheme was discontinued
and Re-Ts appointed under the scheme were considered for
absorption as General Line Teachers. Even if a Re-T teacher
was overaged, he/she would be eligible for formal appointment
in the Government by relaxation of age. In view of the above, the
Division Bench directed the continuance of Respondent No. 2.
The advertisement in question relates to appointment to a post
of Re-T to which either Respondent No.1 or Respondent No. 2
could have been appointed. The High Court ought not to have
directed the appointment of both the Respondent Nos. 1 and 2.
Having set aside the judgment of the Single Judge, the High
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Court committed no error in directing the appointment of
Respondent No.1. The direction issued by the High Court to
continue Respondent No.2 is set aside. Respondent No.2 has
been continuing to work from 2004. Therefore, the Appellant is
directed to accommod

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