Gujarat High Court Case Information System
Print
SCA/1034/1998 9/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1034 of 1998
=========================================================
ALKABEN
KARSHANBHAI PATEL - Petitioner(s)
Versus
DISTRICT
PRIMARY EDUCATION OFFICER & 1 - Respondent(s)
=========================================================
Appearance
:
MR
RC JANI for
Petitioner(s) : 1,
MR HS MUNSHAW for Respondent(s) : 1,
MR JK
SHAH, LD.ASST.GOVERNMENT PLEADER for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 16/04/2010
ORAL
ORDER
By
way of present petition, the petitioner
has inter alia prayed for directing the respondents to consider the
case of the petitioner
for the post of Primary Teacher and directing the respondents not
to consider the petitioner
as underaged and holding that the cut off date was against the
principles of natural justice and further directing the respondents
to invite the petitioner
for interview and if she is found suitable, she may be absorbed in
service.
During
the course of hearing, it is submitted by Mr.J.K. Shah, learned
Assistant Government Pleader, that the issue involved in the
petition is squarely covered by the decision of this Court in the
case of Truptiben B. Patel v. District Primary Education
Officer, Mehsana and others, reported in 1998(1) GLH
737 and, therefore, in view of the same, the present
petition is required to be disposed of.
It
would be beneficial to reproduce the above cited decision as under :
1. Issues
raised in these Letters Patent Appeals and Special Civil Applications
are same. Though appellants and petitioners are different in
these matters, respondents are identical. So, we consider it
advantageous to dispose of these matters by a common judgment.
As agreed to by counsel appearing on either side, we refer to
the facts of Letters Patent Appeal No.302 of 1993 because facts of
these cases do not vary materially.
2. Letters
Patent Appeal No.302 of 1993 arose out of a decision rendered by a
learned single Judge in Special Civil Application No.7547 of
1992. That Special Civil Application was disposed of by the learned
single Judge along with 11 other Special Civil Applications by
a common judgment dated 19th March, 1993. Common question that
arose in those Special Civil Applications was whether the
petitioners therein were qualified for being considered for the
posts of Primary Teacher as per the Gujarat Panchayat Service
(Recruitment of Primary Teachers) Rules, 1970 (hereinafter
referred to as “The Rules”). Learned Judge took the view
that candidates, who put in applications for the posts of Primary
Teacher pursuant to the Notification issued on 13.10.1992, should
have completed the age of 18 as on 1.7.1992 and not as on 1.7.1993,
as contended by them. Learned Judge, while taking this view,
differed from the stand taken by this court in many earlier
decisions, placing reliance on the decision of the Apex Court in
A.P. Public Service Commissioner, Hyderabad and another v. B.
Sarat Chandra and others, reported in (1990) 2 SCC 669. Hence,
these Letters Patent Appeals and Special Civil Applications.
3. For
a proper understanding of the issue in controversy, we shall
refer to the basic … 13.10.1992, an advertisement was published
in newspapers, inviting applications from eligible candidates
for selection to the posts of Primary Teacher. Applications
pursuant to this Notification were to be filed within 15 days
therefrom. The Notification specifically mentioned that
applications are for recruitment of Primary Teachers 1992-’93.
Application form issued by the District Education Committee,
Mehsana is produced as Annexure ‘C’ to Special Civil Application
No.7547 of 1992. It required applicant to mention age as on
1.7.1992. Along with that application form, Instructions in
respect of filling the forms were also issued. Instruction 6 was
that :-
“…
For evidence of the birth date, the candidate shall send
a copy of the S.S.C. certificate or school leaving
certificate or a certificate of the principal of the
school in respect of the date of birth. For this
year, the age shall be as on 1.7.1992...."
Instruction
14 further stated that the candidate, who has not completed 18
years as on 1.7.1992 and who is more than 28 years of age as on
1.7.1992, shall not be given any chance. It also provided that
Scheduled Caste and Scheduled Tribe candidates are entitled to
relaxation in respect of the maximum age limit upto 5 years and in
the case of widows and forsaken candidates, the maximum age limit
is 40. Pursuant to the Notification, petitioners, three in number,
in Special Civil Application No.7547 of 1992, put in their
application forms. The dates of birth of these petitioners are :
22.8.1974, 26.9.1974 and 26.7.1974, respectively. Consequently,
they had not completed 18 years of age as on 1.7.1992. Their
contention is that the Notification issued on 13.10.1992 could not
have fixed the age with reference to an anterior date, viz.,
1.7.1992, that the age is to be computed with reference to
the 1st July of the year in which recruitment is made and that the
recruitment in this case took place long after the expiry of 1992
and so, they must be treated as eligible for being considered for the
post of Primary Teacher. This contention did not find favour with
the learned single Judge.
4. Learned
counsel representing the appellants and petitioners relied on
decision rendered by learned single Judges of this Court in Special
Civil Applications Nos.3678 of 1988, 6394 of 1988, 7769 of 1988,
8335 of 1998 and 1777 of 1992 in support of their contention
that 1.7.1993 is to be taken as the relevant date, with which the
age of the applicant is to be assessed for deciding the issue of
eligibility. In the first case, viz., Special Civil
Application No.3678 of 1988, Notification was issued on 13.8.1987,
inviting applications from eligible candidates. Petitioner therein
had completed 17 years and 1 month as on 1.7.1987. Therefore,
she was considered as ineligible, being underaged. Interview for
selection of the candidates, who put in applications pursuant
to Notification dated 13.8.1987, was being held after 26.7.1988. So,
the petitioner contended that the year of recruitment being 1988,
on the 1st of July, 1988, she completed the age of 18 and so, is
eligible for being considered for the post. Court took the view
that there was no reason for the respondents not to permit the
petitioner to appear in the interview since the petitioner
completed 18 years on 1.7.1988, the year in which the recruitment
is made.
5. In
Special Civil Application No.6394 of 1988, petitioners applied
for the post pursuant to the advertisement dated 9.12.1987.
They were not considered eligible since they had not completed 18
years of age on 1.7.1987. The Court took the view that since
the recruitment process started after May, 1988, the
recruitment year would be 1988. Consequently, it was held that
relevant date is 1.7.1988 and not 1.7.1987. The same view was
followed by the same Judge in Special Civil Applications Nos.
7769 of 1988 and 8335 of 1988. Relying on this decision, another
learned single Judge decided Special Civil Application No.1777
of 1992. Correctness of this decision was canvassed before learned
single Judge, who passed the impugned judgment. Learned Judge
refused to follow above decisions in the light of the view taken by
the Apex Court in (1990) 2 SCC 669 (supra).
6. Before
going into the question in controversy, we think it proper to refer
to the provisions of the Rules, governing the recruitment of
Primary Teachers. Rule 2(vi) defines “school year”
as “the period commencing from 1st June and ending on 31st May
of the succeeding year.” Rule 3 deals with preparation
of estimates of vacancy by Administrative Officer. As per this,
the Administrative Officer should prepare an estimate of
vacancies likely to arise in the District for each school year during
the first week of April of the year. He shall then take steps
to invite applications from qualified candidates by giving public
notice. This means that in the month of April of a year, the
Administrative Officer has to assess the probable… arise in
the post of Primary Teachers in the ensuing school year. For
filling up those vacancies, he has to invite applications. If in
April, 1992, as in this case, vacancies have been assessed, it will
be in relation to the academic year 1992-’93. So, the school
year, in relation to which the vacancy is to be filled up, is
1992-’93. 1992-’93 school year is from 1st June, 1992 to 31st May,
1993. Eligibility of one to apply for the vacancy that arose for
1992-’93 school year is contained in Rule 4 of the Rules.
This Rule states that a candidate will be eligible for
appointment if he is not less than 18 years of age and not more
than 28 years of age. This has an Explanation added to it. It reads
:-
“…Explanation:-
For the purpose of this rule, a candidate shall be
deemed to have attained the age limit, if he attains such
age limit before the first July of the year in
which the recruitment is made….”
7. As
stated earlier, the vacancy that are to be filled up are those
of the school year 1992-’93. That school year has July, 1992
within it. July 1993 is outside the school year. So, 1st July,
1992 is the relevant date with reference to which the eligibility
is to be assessed. Pursuant to the Notification issued, if the
interview and the preparation of the select list take place beyond
July, 1993, the eligibility cannot be ascertained with reference
to July of the subsequent year.
8. As
per the Explanation to Rule 4, quoted above, the age limit should
be with reference to 1st July of the year in which recruitment is
made. According to learned counsel representing the appellants and
the petitioners, recruitment can only be the final selection.
If the final selection takes place in 1993 or 1994, the relevant
date for assessing the eligibility should be 1st July, 1993 or
1994, as the case may be, even if the Notification was issued
in 1992 in relation to the school year 1992-’93. This argument, we
are afraid, cannot be accepted.
9. In
A.P. Public Service Commission v. B. Sarat Chandra and others,
(1990) 2 SCC 669, Their Lordships had to consider the scope of the
words “first day of July of the year in which selection is
made”. Only point of difference between that case and the
case on hand is that, instead of the word `selection’ used
therein, word `recruitment’ is the one used in the Rules. In the
case before the Supreme Court, a candidate must have completed 21
years of age on the first day of July of the year in which selection
is made and must not have completed 26 years as on that date.
The argument advanced before the Apex Court was that the selection
can be said to have been made only when the list is prepared
and so, the eligibility of the candidate as to the age has to be
determined with reference to the year when the list is prepared.
According to Their Lordships, the word `selection’ does not
mean the final act of selecting candidates only. Process of
selection consists of various steps, like inviting applications,
scrutiny of applications, rejection of defective applications or
elimination of ineligible candidates, conducting
examinations, calling for interview or viva voce and preparation
of the list of successful candidates for appointment. When such
different steps in the process of selection are to be undergone, the
minimum or maximum age for suitability of a candidate for
appointment, according to Their Lordships, cannot be allowed to
depend upon any fluctuating or uncertain date. If the final
stage of selection is delayed, the candidates, who are eligible on
the date of application, may find themselves eliminated on becoming
over-aged or those ineligible, on account of their not having
completed the age of 18, becoming eligible. Therefore, it can
certainly be held that the eligibility of a candidate on account of
age cannot be allowed to depend upon any fluctuating or uncertain
date. The date to attain the minimum or maximum age must,
therefore, be specific and determinate as on a particular date for
the candidates to apply. The Apex Court categorically held
that it would be unreasonable to construe the word `selection’ as
meaning the factum of preparation of the final select list.
This decision of the Supreme Court applies on all fours to the facts
on hand. Recruitment of a candidate depends on a long process.
The ultimate result of all those processes will culminate in the
recruitment of candidates. So, the eligibility, on the basis of
age, cannot be made to depend on the final stage of recruitment.
It must be certain. When applications for filling up the
vacancies that exist during the school year 1992-’93 are invited,
the age of the candidate must be reckoned with reference to the
first day of July of that school year. If first day of July of
the school year is 1st July, 1992, eligibility must be assessed
with reference to that date. If process of recruitment happened to
be delayed on account of administrative reasons or otherwise,
the eligibility cannot vary in so far as the said
Notification and the vacancy that arose for that school year are
concerned.
10. On
9th January, 1982, an advertisement was published, inviting
applications for appointment to the posts of Junior Engineer in
the Service of Jammu & Kashmir State. The last date for
submitting application was July 15, 1982. A pass in Engineering
Degree examination (Civil) was the minimum academic
qualification required for applying to the post. Certain candidates,
who did not pass the examination on or before July 15, 1982,
applied for the post. Though they were not qualified on the last
date for receipt of the application, they were selected on the
ground that they were qualified on the date of interview.
Their appointments were challenged. The Supreme Court, i…first
instance, did not interfere with the said appointment.
That decision was reviewed and a Bench of three Judges, in Ashok
Kumar Sharma & Others v. Chander Shekhar & another, JT
1997 (4) S.C. 99, stated the law as :-
…
The proposition that where applications are
called for prescribing a particular date as the last
date for filing the applications, the eligibility of
the candidates shall have to be judged with
reference to that date and that date alone, is a
well-established one. A person who acquires the
prescribed qualification subsequent to such prescribed
date cannot be considered at all….” In the instant
case, applications were invited by Notification dated
13.10.1992. Applications pursuant thereto were to be filed within
15 days therefrom. In the application form and in the
Instructions to the candidates, it was specifically mentioned
that eligibility on account of age is to be decided with
reference to 1.7.1992. The said prescription in the application
form and Instructions was in conformity with the Rules.
Consequently, it cannot be held that one, who has not completed the
age of 18 on 1.7.1992, is entitled to be considered for the post
since the interview took place in 1993 or later, by which time, he
has completed the age of 18. In view of the decisions of the
Supreme Court, referred to earlier, and in the light of the
provisions contained in the Rule, we have no hesitation in holding
that the eligibility of a candidate, regarding age for the post of
Primary Teacher, is to be assessed with reference to the 1st July
of the year, in which the Notification is issued, and not otherwise.
Putting it in other words, for determining the age requirement,
the relevant date that is to be reckoned is the 1st of July of the
year in which the process of recruitment commences. Contrary
view taken by this Court, in the various decisions referred to
earlier, cannot be considered to be laying down the correct legal
position.
11. By
virtue of the interim orders, some of the candidates, who had
not completed the age of 18 years on 1st of July of the year, in
which the Notification was issued, happened to get selected.
Those candidates cannot claim any equity to the post. Benefit
they have obtained by virtue of the interim orders must be taken
away. Those candidates have to be sent out of the post, for, they
were not eligible to apply to the post pursuant to the Notification.
Authorities are directed to remove them from Service forthwith.
12. Letters
Patent Appeals, Special Civil Applications and Civil
Application No.2858 of 1997 are disposed of as indicated above.
However, we direct the
parties to suffer their respective costs.
In
view of aforesaid, when the issue involved in the present petition
has already been decided by this Court by way of above cited
decision, in light of the same the present petition is required to
be disposed of and the same stands disposed of accordingly. The
parties to abide by the above cited decision. Rule is discharged
with no order as to costs. Interim relief, if any, stands hereby
vacated.
(K.S.
Jhaveri, J)
Aakar
Top