{"id":237914,"date":"2010-04-16T00:00:00","date_gmt":"2010-04-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/alkaben-vs-district-on-16-april-2010"},"modified":"2017-02-05T17:53:15","modified_gmt":"2017-02-05T12:23:15","slug":"alkaben-vs-district-on-16-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/alkaben-vs-district-on-16-april-2010","title":{"rendered":"Alkaben vs District on 16 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Alkaben vs District on 16 April, 2010<\/div>\n
Author: Ks Jhaveri,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/1034\/1998\t 9\/ 11\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1034 of 1998\n \n\n \n=========================================================\n\n \n\nALKABEN\nKARSHANBHAI PATEL - Petitioner(s)\n \n\nVersus\n \n\nDISTRICT\nPRIMARY EDUCATION OFFICER & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nRC JANI for\nPetitioner(s) : 1, \nMR HS MUNSHAW for Respondent(s) : 1, \nMR JK\nSHAH, LD.ASST.GOVERNMENT PLEADER for Respondent(s) :\n2, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 16\/04\/2010\n \n\nORAL\nORDER<\/pre>\n
By
\n\tway of present petition, the petitioner
\n\thas inter alia prayed for directing the respondents to consider the
\n\tcase of the petitioner
\n\tfor the post of Primary Teacher and directing the respondents  not
\n\tto consider the petitioner
\n\tas underaged and  holding that the cut off date was against the
\n\tprinciples of natural justice and further directing the respondents
\n\tto invite the petitioner
\n\tfor interview and if she is found suitable, she may be absorbed in
\n\tservice.\n<\/p>\n
During
\n\tthe course of hearing, it is submitted by Mr.J.K. Shah, learned
\n\tAssistant Government Pleader, that the issue involved in the
\n\tpetition is squarely covered by the decision of this Court in the
\n\tcase of Truptiben B. Patel v. District Primary Education
\n\tOfficer, Mehsana and others, reported in 1998(1) GLH
\n\t737 and, therefore, in view of the same, the present
\n\tpetition is required to be disposed of.\n<\/p>\n
\tIt
\n\twould be beneficial to reproduce the above cited decision as under :\n<\/p>\n
 1.\tIssues
\nraised in these Letters Patent Appeals and Special Civil Applications
\nare same.  Though  appellants and petitioners   are different in
\nthese  matters, respondents are  identical. So, we consider it
\nadvantageous  to  dispose  of  these  matters by a common judgment.
\nAs agreed to by counsel  appearing  on  either side,  we  refer  to
\nthe  facts of Letters Patent Appeal No.302 of 1993 because facts of
\nthese cases do  not  vary materially.\n<\/p>\n
2.\tLetters
\nPatent Appeal No.302 of 1993 arose out of a decision rendered by a
\nlearned single Judge in  Special Civil Application  No.7547  of
\n1992.  That Special Civil Application was disposed of by the learned
\nsingle  Judge along  with  11  other  Special  Civil  Applications by
\na common judgment dated 19th March, 1993.  Common  question that
\narose  in  those  Special  Civil  Applications  was whether the
\npetitioners therein were qualified for  being considered  for  the
\nposts of Primary Teacher as per the Gujarat  Panchayat  Service
\n(Recruitment   of   Primary Teachers)  Rules,  1970  (hereinafter
\nreferred to as “The Rules”).  Learned Judge took the  view
\nthat  candidates, who  put in applications for the posts of Primary
\nTeacher pursuant to the Notification issued on 13.10.1992, should
\nhave completed the age of 18 as on 1.7.1992 and not as on 1.7.1993,
\nas contended by them. Learned Judge, while taking  this  view,
\ndiffered from the stand taken by this court in many earlier
\ndecisions, placing reliance on  the decision of  the  Apex  Court  in
\n A.P.    Public Service Commissioner, Hyderabad and another v.  B.
\nSarat Chandra and others, reported in (1990) 2 SCC 669.   Hence,
\nthese Letters Patent Appeals and Special Civil Applications.\n<\/p>\n
3.\tFor
\n a  proper  understanding  of  the  issue  in controversy, we shall
\nrefer  to  the  basic  … 13.10.1992, an advertisement was published
\nin newspapers, inviting   applications   from  eligible  candidates
\nfor selection to the posts of Primary Teacher.   Applications
\npursuant  to this Notification were to be filed within 15 days
\ntherefrom.  The Notification specifically  mentioned that
\napplications are for recruitment of Primary Teachers 1992-’93.
\nApplication  form  issued  by  the  District Education Committee,
\nMehsana is produced as Annexure  ‘C’ to Special   Civil  Application
\nNo.7547  of  1992.    It required applicant to mention age as on
\n1.7.1992.   Along with  that  application  form, Instructions in
\nrespect of filling the forms were also issued.   Instruction  6  was
\nthat :-\n<\/p>\n
“…<\/p>\n
\n  For  evidence of the birth date, the           candidate shall send\na copy of  the  S.S.C.           certificate  or  school leaving\ncertificate           or a certificate of the  principal  of  the    \n      school  in  respect  of  the date of birth.           For this\nyear,  the  age  shall  be  as  on           1.7.1992....\"   \n\n \n\n\n \n\n\n \n\n\nInstruction\n<\/pre>\n
14 further stated that the candidate, who has not  completed  18
\nyears  as on 1.7.1992 and who is more than 28 years of age as on
\n1.7.1992, shall not  be  given any chance. It also provided that
\nScheduled Caste and Scheduled Tribe candidates are entitled to
\nrelaxation  in respect  of the maximum age limit upto 5 years and in
\nthe case of widows and forsaken candidates, the  maximum  age limit
\nis  40.  Pursuant to the Notification, petitioners, three in number,
\nin Special Civil Application No.7547  of 1992, put in their
\napplication forms.  The dates of birth of these  petitioners  are  :
\n  22.8.1974, 26.9.1974 and 26.7.1974, respectively. Consequently,
\nthey  had  not completed 18 years of age  as  on  1.7.1992.    Their
\ncontention is that the Notification issued on  13.10.1992 could  not
\nhave  fixed  the  age  with  reference  to an anterior date, viz.,
\n1.7.1992, that  the  age  is  to  be computed  with  reference  to
\nthe 1st July of the year in which recruitment is made and  that  the
\nrecruitment  in this  case  took  place long after the expiry of 1992
\nand so, they must be treated as eligible for being considered for the
\npost of Primary Teacher.  This contention did not find favour with
\nthe learned single Judge.\n<\/p>\n
4.\tLearned
\ncounsel representing the  appellants  and petitioners relied on
\ndecision rendered by learned single Judges  of  this Court in Special
\nCivil Applications Nos.3678 of 1988, 6394 of 1988, 7769 of 1988,
\n8335  of  1998 and  1777  of  1992  in  support of their contention
\nthat 1.7.1993 is to be taken as the relevant date, with  which the
\nage  of the applicant is to be assessed for deciding the issue of
\neligibility.    In  the  first  case,  viz., Special  Civil
\nApplication No.3678 of 1988, Notification was  issued  on  13.8.1987,
\n inviting applications from eligible candidates. Petitioner therein
\nhad completed 17 years and  1  month  as  on 1.7.1987.  Therefore,
\nshe was considered as ineligible, being underaged.  Interview for
\nselection of the  candidates,  who  put  in  applications pursuant
\nto Notification dated 13.8.1987, was being held after 26.7.1988.  So,
\nthe petitioner contended  that  the year of recruitment being 1988,
\non the 1st of July, 1988,  she completed the age of 18 and so, is
\neligible for being considered for  the post.  Court took the view
\nthat there was no reason for  the  respondents  not  to  permit  the
\npetitioner   to   appear   in  the  interview  since  the petitioner
\ncompleted 18 years on 1.7.1988,  the  year  in which the recruitment
\nis made.\n<\/p>\n
5.\tIn
\nSpecial Civil  Application  No.6394  of  1988, petitioners   applied
\n for  the  post  pursuant  to  the advertisement dated 9.12.1987.
\nThey were not  considered eligible  since they had not completed 18
\nyears of age on 1.7.1987.   The  Court  took  the  view  that  since
\nthe recruitment   process   started   after  May,  1988,  the
\nrecruitment year would be 1988.    Consequently,  it  was held  that
\nrelevant  date  is 1.7.1988 and not 1.7.1987. The same view was
\nfollowed by the same Judge  in  Special Civil Applications  Nos.
\n7769 of 1988 and 8335 of 1988. Relying on this decision, another
\nlearned  single  Judge decided   Special  Civil  Application  No.1777
\n of  1992. Correctness of this decision was canvassed before learned
\nsingle Judge, who passed the impugned judgment.   Learned Judge
\nrefused  to follow above decisions in the light of the view taken by
\nthe Apex Court in (1990) 2 SCC 669 (supra).\n<\/p>\n
6.\tBefore
\ngoing into the question in controversy, we  think  it proper to refer
\nto the provisions of the Rules, governing the recruitment  of
\nPrimary  Teachers.    Rule  2(vi)  defines  “school  year”
\nas “the period commencing from 1st June and ending on 31st May
\nof  the  succeeding  year.”  Rule  3  deals  with  preparation
\nof estimates of vacancy by Administrative Officer. As  per  this,
\nthe Administrative  Officer  should  prepare  an  estimate of
\nvacancies likely to arise in the District for each school year during
\nthe first week of April  of  the  year. He shall then  take  steps
\nto  invite  applications  from qualified candidates by giving public
\nnotice.  This means that in the month of April of a year, the
\nAdministrative  Officer  has  to  assess  the probable…  arise in
\nthe post of  Primary  Teachers  in  the  ensuing school year. For
\nfilling up those vacancies, he has to invite applications.  If in
\nApril, 1992, as in this case, vacancies have been assessed, it will
\nbe in  relation  to the academic  year  1992-’93. So,  the school
\nyear, in relation to which the vacancy is  to  be  filled  up,  is
\n1992-’93.  1992-’93 school year is from 1st June, 1992 to 31st May,
\n1993.    Eligibility  of  one to apply for the vacancy that arose for
\n1992-’93 school year is  contained in Rule  4  of  the  Rules.
\nThis  Rule  states  that a  candidate will be eligible for
\nappointment if he  is  not less  than  18 years of age and not more
\nthan 28 years of age.  This has an Explanation added to it.  It reads
\n:-\n<\/p>\n
“…Explanation:-\n<\/p>\n
For the purpose  of  this           rule,  a  candidate shall be
\ndeemed to have           attained the age limit, if he attains  such
\n        age limit before the first July of the year           in
\nwhich the recruitment is made….”\n<\/p>\n
7.\tAs
\n stated  earlier,  the  vacancy that are to be  filled up are those
\nof the school year  1992-’93. That school year  has  July,  1992
\nwithin it. July 1993 is outside the school year. So,  1st  July,
\n1992  is  the relevant  date with reference to which the eligibility
\nis to be assessed.  Pursuant to the Notification issued, if the
\ninterview and the preparation of the select list take place beyond
\nJuly, 1993, the  eligibility  cannot  be  ascertained with reference
\nto  July  of  the  subsequent year.\n<\/p>\n
8.\tAs
\nper the Explanation to Rule 4,  quoted  above, the age limit should
\nbe with reference to 1st July of the year in  which recruitment is
\nmade.  According to learned counsel representing the appellants and
\nthe  petitioners, recruitment can  only  be  the  final  selection.
\nIf the final selection takes place in 1993 or 1994, the relevant
\ndate for assessing the eligibility should  be  1st  July, 1993   or
\n1994,  as  the  case  may  be,  even  if  the Notification was issued
\nin 1992 in relation to the school year 1992-’93. This argument, we
\nare afraid,  cannot  be  accepted.\n<\/p>\n
9.\tIn
\nA.P.  Public  Service Commission v.  B.  Sarat Chandra and others<\/a>,
\n(1990) 2 SCC 669, Their Lordships had to consider the scope of the
\nwords “first day of July  of the year  in  which  selection  is
\nmade”.  Only point of difference between that case and  the
\ncase  on  hand  is that,  instead of the word `selection’ used
\ntherein, word `recruitment’ is the one used in the Rules.  In the
\ncase before the Supreme Court, a candidate must have completed 21
\nyears  of age on the first day of July of the year in which selection
\nis made and must not  have  completed  26 years as  on that date.
\nThe argument advanced before the  Apex Court was that the selection
\ncan  be  said  to  have been  made  only  when  the  list is prepared
\nand so, the  eligibility of the candidate as to  the  age has  to  be
\ndetermined  with  reference to the year when the list is  prepared.
\nAccording  to  Their  Lordships, the word `selection’  does  not
\nmean  the  final act of selecting candidates only. Process  of
\nselection  consists   of various steps, like  inviting applications,
\nscrutiny of applications,  rejection  of  defective  applications  or
\nelimination    of   ineligible   candidates,   conducting
\nexaminations, calling for  interview  or  viva  voce  and preparation
\n of  the  list  of  successful candidates for appointment.  When such
\ndifferent steps in the process of selection are to be undergone, the
\nminimum or maximum age for suitability of a candidate for
\nappointment, according to Their Lordships, cannot be allowed to
\ndepend upon  any fluctuating or  uncertain  date.    If the final
\nstage of selection is delayed, the candidates, who are eligible on
\nthe date of application, may find themselves  eliminated on becoming
\nover-aged or those ineligible, on account of their not  having
\ncompleted the age of 18,  becoming eligible. Therefore,  it can
\ncertainly be held that the eligibility of a candidate on account of
\nage  cannot  be allowed to depend upon any fluctuating or uncertain
\ndate. The  date  to  attain  the  minimum  or maximum age must,
\ntherefore, be specific and determinate as on a particular date for
\nthe  candidates  to  apply. The  Apex  Court categorically  held
\nthat it would  be  unreasonable to construe the word `selection’ as
\nmeaning  the  factum  of preparation of  the  final select list.
\nThis decision of the Supreme Court applies on all fours to the facts
\non hand.   Recruitment  of  a  candidate  depends  on a long process.
\nThe ultimate result of all those processes will culminate in the
\nrecruitment of candidates. So, the eligibility, on the basis  of
\nage,  cannot be made to depend on the final stage of recruitment.
\nIt  must  be certain.   When applications for filling up the
\nvacancies that exist during the school year 1992-’93  are  invited,
\nthe  age of the candidate must be reckoned with reference to the
\nfirst day of July of that school year.   If  first day  of  July  of
\nthe  school  year  is  1st July, 1992, eligibility must be assessed
\nwith reference to that date. If process of  recruitment  happened  to
\n be  delayed  on account  of  administrative  reasons  or  otherwise,
\n the eligibility  cannot  vary  in  so   far   as   the   said
\nNotification  and  the vacancy that arose for that school year are
\nconcerned.\n<\/p>\n
10.\tOn
\n9th January, 1982, an  advertisement  was published, inviting
\napplications for appointment to the posts  of  Junior  Engineer in
\nthe Service  of Jammu & Kashmir State. The last date for
\nsubmitting  application was July   15,  1982. A pass in  Engineering
\nDegree examination   (Civil)   was the minimum academic
\nqualification required for applying to the post.  Certain candidates,
\nwho did not pass the examination on or before July 15,  1982,
\napplied  for the post.  Though they were not qualified  on  the  last
\n date  for  receipt  of  the application,  they  were selected on the
\nground that they  were qualified  on  the  date  of   interview.
\nTheir appointments were  challenged.  The Supreme Court, i…first
\ninstance,  did  not  interfere   with   the   said appointment.
\nThat  decision was reviewed and a Bench of three Judges, in Ashok
\nKumar Sharma & Others v.   Chander Shekhar &  another,  JT
\n1997 (4) S.C.  99, stated the law as :-\n<\/p>\n
 …\n<\/p>\n
    The    proposition    that    where           applications are
\ncalled  for  prescribing  a           particular  date as the last
\ndate for filing           the applications,  the  eligibility  of
\nthe           candidates  shall  have  to  be  judged with
\nreference to that date and that date  alone,           is a
\nwell-established  one.    A person who           acquires   the
\nprescribed    qualification           subsequent to such prescribed
\ndate cannot be           considered at all….” In  the  instant
\n case,  applications  were  invited   by Notification dated
\n13.10.1992.    Applications  pursuant thereto were to be filed within
\n15 days  therefrom. In the  application form and  in  the
\nInstructions to the  candidates, it was specifically   mentioned
\nthat eligibility  on  account  of  age  is  to be decided with
\nreference to 1.7.1992.   The  said  prescription  in  the application
\n form and Instructions was in conformity with the Rules.
\nConsequently, it cannot be held that one, who has not completed the
\nage of 18 on 1.7.1992, is  entitled to  be  considered  for the post
\nsince the interview took place in 1993 or later, by which time, he
\nhas  completed the age  of  18.  In view of the decisions of the
\nSupreme Court, referred to earlier,  and  in the light  of  the
\nprovisions  contained in the Rule, we have no hesitation in holding
\nthat the eligibility of a candidate, regarding age for the post of
\nPrimary Teacher, is to be  assessed with  reference to the 1st July
\nof the year, in which the Notification is issued, and not otherwise.
\nPutting it in other words, for determining  the  age  requirement,
\nthe relevant  date  that is to be reckoned is the 1st of July of  the
\n year  in  which  the  process   of   recruitment commences. Contrary
\nview  taken  by this Court, in the various decisions  referred  to
\nearlier,   cannot   be considered to be laying down the correct legal
\nposition.\n<\/p>\n
11.\tBy
\n virtue  of  the  interim  orders, some of the candidates, who had
\nnot completed the age of 18 years  on 1st  of  July  of the year, in
\nwhich the Notification was issued, happened  to  get  selected.
\nThose  candidates cannot claim  any  equity to the post.  Benefit
\nthey have obtained by virtue of the interim orders must be taken
\naway. Those candidates have to be sent out of the post, for, they
\nwere not eligible to apply to the post pursuant to the Notification.
\nAuthorities are directed to  remove them from Service forthwith.\n<\/p>\n
12.\tLetters
\nPatent    Appeals,    Special    Civil Applications and Civil
\nApplication No.2858  of  1997  are disposed of  as  indicated above.
\nHowever, we direct the
\nparties to suffer their respective costs.\n<\/p>\n
\tIn
\n\tview of aforesaid, when the issue involved in the present petition
\n\thas already been decided by this Court by way of above cited
\n\tdecision, in light of the same the present petition is required to
\n\tbe disposed of and the same stands disposed of accordingly. The
\n\tparties to abide by the above cited decision. Rule is discharged
\n\twith no order as to costs. Interim relief, if any, stands hereby
\n\tvacated.\n<\/p>\n
(K.S.\n<\/p>\n
Jhaveri, J)<\/p>\n
Aakar<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Alkaben vs District on 16 April, 2010 Author: Ks Jhaveri,&Nbsp; 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) ========================================================= […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-237914","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAlkaben vs District on 16 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/alkaben-vs-district-on-16-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Alkaben vs District on 16 April, 2010 - 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