Eligibility criteria for appointments to public posts should be uniform and there cannot be the scope of arbitrary selections by unfettered discretion being vested in the authorities as held by the Hon’ble Supreme Court while approving the decision of a Division Bench of the High Court of Jammu and Kashmir, in the case of The State of Jammu And Kashmir & Ors Vs Shaheena Masarat & Anr [Civil Appeal No. 4991 of 2012].
Brief facts of the case are that a scheme, namely Rehbar-e-Taleem (Re-T), was floated by the State of Jammu and Kashmir under which teaching guides (referred to as ‘Re-T’ hereinafter) in primary and middle schools were to be appointed to cover for the deficiency of the staff. A candidate seeking an appointment as Re-T should ‘as far as possible’ fulfil the age qualification as prescribed by the State Government. The selection under the scheme for the primary school at Bundook Khar Mohalla Rainawari was conducted pursuant to the Notification dated 29.11.2002. Respondent No. 2 was selected for appointment as Re-T. Respondent No. 1 filed a writ petition before the High Court of Jammu and Kashmir at Srinagar under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir for quashing order No.12-DDC of 2003 dated 14.05.2003 by which Respondent No. 2 was appointed as Re-T. A learned Single Judge of the High Court dismissed the writ petition.
Aggrieved thereby, the First Respondent filed an appeal which was allowed by the Division Bench of the High Court. The Division Bench directed the appointment of Respondent No. 1 as Re-T within a period of one month from the date of the judgment. The High Court further directed 2 continuance of Respondent No. 2 also. The state of Jammu and Kashmir has filed this appeal challenging this judgment and final order dated 13.4.2010 passed by Division Bench of High Court of Jammu and Kashmir.
The main grievance of the State of Jammu and Kashmir (Appellant) is that the High Court committed an error in directing the appointment of Respondent No. 1 and also the continuance of Respondent No. 2. The Respondents were vying for one post of teacher and the High Court could not have directed the appointment of both the Respondents.
It was contended on behalf of the First Respondent that the second Respondent had crossed the maximum age limit of 35 years and was not eligible to even apply for an appointment as a teacher. The learned counsel for the first Respondent submitted that SRO 30 of 2003 which relaxed the maximum age for appointment of teacher by 2 years is not applicable to the instant case. Respondent No. 2 contended that her appointment was strictly in terms of the advertisement and the maximum age was 3 relaxed as per SRO 30 of 2003 which applied to all selections. It was contended on behalf of Respondent No. 2 that the words ‘as far as possible’ are directory and the authorities had the power to relax the maximum age beyond 35 years.
After hearing the appellant and both the respondents, the hon’ble court was of the opinion that the eligibility criteria for appointment as Re-T by the scheme as well as the advertisement include a condition that a candidate shall ‘as far as possible’ fulfill the age qualification as prescribed by the State Government. There is no dispute that the upper age limit for appointment as Re-T is 35 years and held that “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 a case, the provision would have to be declared as unconstitutional. Therefore, we are of the opinion that 35 years is the upper age limit for appointments as Re-T. The 2nd Respondent who has crossed 35 years on the cut-off date was not 8 eligible for appointment.”
Judgment reviewed by – Aryan Bajaj