Jammu & Kashmir High Court - Srinagar Bench
Ms. Shaheena Masarat vs State And Ors on 13 April, 2010
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 168 of 2008 CMP No. 310 of 2008 Ms. Shaheena Masarat Petitioners State and ors Respondents !Mr. B.A. Bashir, Advocate ^Mr. J.A. Kawoosa, Advocate Mr. A. Haqani, Advocate Honble Mr. Justice Virender Singh, Judge Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 13/04/2010 :J U D G M E N T:
The State of Jammu and Kashmir in exercise of its power conferred upon it by Article 162 of Constitution of India launched a Scheme called Rehbar-i-Taleem Scheme (for short Scheme) by issuance of Government order No. 396-Edu 2000 dated 28th April 2000. The principal objectives of the Scheme were;
a) Promoting and decentralizing management of elementary education with the community participation and involvement.
b) To ensure accountability and responsiveness through a strong backup and supervision through the community.
c) To operationalize effectively the schooling system at the grass roots level. It was further provided that the scheme shall be effectuated through services of teaching guides called Re-T in the primary and middle schools to make up the deficiency of the staff as per the existing norms.
The concept of Re-T was defined and role of village committee was also highlighted. The Village Level Committee (VLC) was also constituted in the scheme. The VLC was to be convened by Zonal Education Officer (ZEO) having been designated as convener of the said committee charged with the duty of assessing the requirement of teachers in the primary/middle school(s) within the area of their operation in due regard to the approved norms of staffing and their role.
Under the caption eligibility, in the scheme, it was provided that i) Re-T should be permanent resident of State; ii) belong to village where the deficiency of the staff was assessed; iii) should possess the minimum qualification of 10+2; and iv) the candidate shall as far as possible fulfill the age qualification as prescribed by the State Government.
The mode of selection of Re-T was that the panel was to be drawn by VLC and was send to the Dy. Commissioner (D.C) through ZEO concerned. The D.C along with a representative of Director School Education was to make final selection commensurate with the assessed requirement. The formal order of engagement of Re- T was to be issued by ZEO concerned. The Re-T was to be deemed a local community worker for a period of five years. He was to be paid monthly honorarium for a period of five years. The Re-T teacher was to be engaged initially for a period of two years and the period thereafter was to be extended for further three years subject to fulfillment of conditions laid down in the Scheme. The Scheme also provided for absorption of the Re-T as General Line Teacher. The relevant part of the Scheme is reproduced as under:-
Role of Village Level Committee On the satisfactory completion of five years as Reher-I-Taleem on honorarium basis, the candidate shall be eligible for appointment as General Line Teacher in the Education Department. For this purpose VLC shall have to furnish a certificate about the satisfactory performance of the teacher and highlighting the specific achievement and his/her conduct. At the time of consideration for formal appointment in the Government, if a teacher is found not to fulfill age qualification, then his/her employment would be on contractual basis for future.
By order of Government of Jammu and Kashmir The Government issued order No. 1238-Edu of 2001 dated 14.09.2001. The said government order is reproduced as under:-
In partial modification of Govt. order No. 396 of Edu 2000 dated 28.04.2000 issued under endorsement No. Edu/Prpl. Secy/PS/3/2000 dated 28.04.2000, it is ordered that the sub-para Regularization appearing at page 4 of the said order shall read follows:-
On the satisfactory completion of five year as Rehbar-i-Taleem on honorarium basis the candidate shall be eligible for appointment as General Line Teacher in the Education Department. For this purpose the VLC shall have to furnish a certificate about the satisfactory performance of the teacher highlighting the specific achievements and his/her overall conduct. At the time of consideration of Rehbar-i- Taleem teacher for formal appointment in the Government his age/qualification on the date of his/her contractual appointment will be taken reckoned provided that in case of candidate otherwise eligible for formal appointment in the Government but who may be over aged at the time of contractual appointment, relaxation of qualification/age shall be considered on merits by the Administrative Department. By order of Government of Jammu and Kashmir. In terms of the said Government order, the earlier provision of scheme was substantially modified, in as much as, it was provided that at the time of consideration of the Re-T teacher for formal appointment in the government, his/her age qualification on the date of his/her contractual appointment will be reckoned; provided that in case of candidate otherwise eligible for formal appointment in the Government, who may be over aged at the time of contractual appointment relaxation of qualification/age shall be considered on merits by administrative department.
This scheme has been wound by the government.
The Central Government in pursuit of its earnest desire to ensure that literacy rate goes up in all the areas of the country where the percentage of literacy is below normal and also to provide teachers to the areas where teaching staff is deficient, a scheme called Serva Shiksha Abeyan (SSA), Scheme has been launched. The Central Government is providing maximum share of funds. Under the SSA Scheme not only posts of teachers have been created but even schools have been sanctioned and/or upgraded. The maximum share of finance to operationalize the SSA Scheme is being provided by the Central Government.
The State Government in order to effectuate the intendment underlying the SSA Scheme, has made applicable the pattern of recruitment, provided in Re-T Scheme, for engagement of teachers under SSA scheme.
Reverting to the facts of this case what appears from the material available on record of the writ petition is that a Primary School was sanctioned under SSA scheme at Bundook Khar Mohalla Rainawari, and two teachers were to be appointed for the said school on the pattern of Re-T. A merit penal was prepared in consultation with V.L.C and was forwarded to D.C through Chief Education Officer (CEO), Srinagar. A tentative selection list was published in daily News paper Aftab and Srinagar Times on 15th Jan. 2003. Objection was called against the said list. Period of seven days was provided for filing of objections, if any.
After consideration of the objections and representations by the Screening Committee, final selection list of candidates was issued after having been approved by District Development Commissioner (DDC), Srinagar vide No. 12-DDC of 2003 dated 14.05.2003 which approved list was conveyed through C.E.O vide endorsement No. CEO/3787/98 dated 17.05.2003. The private respondent was engaged as Re-T under SSA Scheme for a period of one year in the first instance on the monthly honorarium of Rs.1500/- by ZEO Rainawari vide his No. ZEOR/RT/12066-71 dated 17th May 2003.
It is this order which was challenged by the appellant by filing the writ petition which came to be registered as SWP No.846/2003 interalia on the grounds that on the date the post was notified, the private respondent was over aged as such could not be considered for being engaged as Re-T under SSA Scheme in the aforementioned School. It was pleaded that in the list of candidates who had applied for being engaged as Re-T in Primary School Bandook khar Mohalla Rainawari, though private respondent figured at Sr. No. 1 but in the remarks column of the said list it was mentioned that that she has become over aged on 1st Jan. 2002. The appellant figured at Sr. No.3 of the said list. The private respondent was possessed of academic qualification M.A. B.Ed, whereas appellant B.Sc B.Ed. The tentative selection list which was published in daily News paper, the appellant figured at Sr. 32 and thus, was tentatively selected for being engaged as Re-T in Primary School Bundook Khar Mohalla. The appellant, however, was not engaged as she subsequently learnt that private respondent has been engaged. She, accordingly, filed representation and application, for seeking redressal of her grievances. When her demand for justice fell on deaf ear she filed the writ petition.
Private respondent filed objections to the maintainability of the writ petition, in which she stated that during the pendency of the selection process a communication was issued on 15th Jan. 2003 by Secretary to Government Education Department informing Div. Commissioner Jammu/Kashmir that dates for submission of applications for appointments as teachers under Re-T Scheme have been notified and in most of cases last date for submission of application is over. It was further provided that Government has enhanced upper age limit to 37 years for appointment in government service, it was also informed that formal orders in this behalf are being issued separately.
The two Divisional Commissioners were accordingly requested to ask District Development Commissioner to notify extension of date by period of ten days so as to enable the candidates to file application forms whose age is 37 years as on first of Jan. 2003.
The relevant part of the communication dated 15.01.2003 is reproduced as under:- ..Dates for submission of applications for appointment as Teachers under Rehbari- Taleem Scheme have been notified and in most of the cases last date for submission of applications are over. Govt have enhanced upper age limit to 37 years for appointment in Govt services. Formal orders are being issued separately. I am to request you to kindly ask the District Dev. Commissioners to notify extensions of dates by a period of 10 days so as to receive the applications from the candidates, whose age is 37 years as on 1st of January, 2003.
Sd/-
(A.S. Bhat) Copy to All District Development Commissioners. The private respondent accordingly took a stand that as the age limit was relaxed by the Government by two years she accordingly was extended benefit thereof and was engaged as Re-T on the basis of her higher merit.
After the admission of the writ petition to hearing, the private respondent filed counter affidavit and at para 3 of the said counter affidavit she admitted that her Date of Birth being 28th Dec. 1965, she had attained the age of 37 years on 28th Dec. 2002. But despite being over aged she applied, reeling under the impression that the Government right from 1997 has been relaxing the upper age limit fixed for seeking consideration for being appointed in Government service through direct recruitment by two years, as such she was eligible for seeking consideration for being engaged as Re-T. The private respondent thus, literally admitted the claim of the petitioner projected in the writ petition that the provisions of Civil Service Regulations (CSR) governing the age limit for seeking appointment to the Government service as direct recruit was applicable to the post of Re-T as well; but denied the claim of the appellant interalia on the grounds that the private respondent being possessed of highest merit viz M.A, B.Ed and government having relaxed the upper age limit by raising it to 37 years w.e.f 1st of Jan. 2003, she was thus eligible and has been rightly appointed. The official respondents in the counter affidavit, which is cryptic and brief, took a stand that by raising the upper age limit to 37 years for making appointments in the government service, the private respondent, therefore, was engaged. Rejoinder affidavit was also filed by petitioner.
The ld. Single Judge, after hearing the ld counsel for parties vide its judgment dated 8.9.08 dismissed the writ petition filed by the appellant interalia on the ground that in view of issuance of SRO 30 of 2003 vide which relaxation in upper age limit by two years from 1st of Jan, 2003 to 31st of Dec. 2004 was provided, private respondent was entitled to be selected. The said SRO added temporary provision after rule 17 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules 1956 ( for short rules of 1956), and the private respondent was accordingly held to be within age and her appointment was further held to be legal and valid.
The appellant being aggrieved of the judgment has filed this Letters Patent Appeal.
We have heard ld counsel for parties. Considered the matter. Mr. B.A. Bashir ld counsel for the appellant referred to the material placed on the writ record to indicate that private respondent was over age at the time the selection process was initiated in the year 2002 for engagement of Re-T in Primary School Mohalla Bundook Khar Rainawari. The ld counsel submitted that the benefit of relaxation of age was given from 1st of Jan. 2003 to 31st Dec. 2004 and even in the admitted fact situation obtaining in this case private respondent on 1st of Jan. 2003 was above 37 years of age, which fact otherwise was admitted by private respondent at para 3 of her counter affidavit. Ld counsel accordingly submitted that the impugned judgment holding private respondent to be within age is thus in the admitted factual position obtaining in this case not covered and the ld counsel submitted that even by application of SRO 30 of 2003 the private respondent would not get any benefit thereof as she had completed 37 years of age in Dec. 2002 itself. The ld counsel accordingly prayed for setting aside the impugned judgment and for allowing the Letters Patent Appeal as also the writ petition.
Mr. J.A. Kawoosa, Ld AAG appearing for the official respondents submitted that the official respondents have all along adopted the provisions of CSR and that of rules 1956 in respect of determining the eligibility so far as the age of the competing candidates is concerned. The ld counsel also referred to Article 37 of the CSR Vol 1, as also to SRO 30 of 2003 to persuade the court that the private respondent at the time of the selection for the post of teacher in Primary School Mohalla Bundook Khar was over aged, thus was not eligible and could not be appointed. Mr. Kawoosa, ld AAG further referred to and relied upon the Division Bench judgment of this court passed in LPA No. 20 of 2009 dated 6.3.2009 in case titled Altaf Ahmed Sheikh v. State and ors to show that the age of a candidate seeking consideration for being engaged as Re-T had to be determined as on 1st Jan. of the year in which the selection/engagement was to be made. The Division Bench judgment referred to by Mr. Kawoosa cannot constitute a binding precedent in law, as neither the issue is raised, nor reference is made to rule, nor there is any discussion about the legal position. The judgment is rendered in sub-silentio and will bind the parties inter-se only. Perusal of judgment further reveals that case has been decided on the terms as \contained in Advertisement notice and not on Provisions of law. Mr. Haqani, ld counsel for the private respondent submitted that the post under the Re- T Scheme is not the post under the Government and the provisions of the CSR and the rules of 1956 which are applicable for making selection/appointment etc to the posts under the Government cannot be thus made applicable to the posts under a Scheme. The ld counsel invited attention of the court to clause (iv) of the eligibility clause provided in Re-T Scheme to indicate that the age qualification as is prescribed by State Government for filling of the posts is not same under the Scheme. The ld counsel submitted that the expression used in the aforesaid clause is that the age shall as far as possible fulfill the age qualification as prescribed by the State Government. The ld counsel submitted that the expression used as far as possible is directory and it does not in all the circumstances require that the candidate must fulfill the age qualification prescribed by the State Government at the time of his/her selection/engagement as Re-T. For the purpose of considering the issue raised Art. 37 CSR is reproduced as under:-
[37. (1) Except in the case of direct recruits to (i) Kashmir Administrative Service (ii) Kashmir Police Service (iii) Kashmir Forest Service (iv) Kashmir Accounts Service, in which case the minimum and maximum age list for recruitment, will be governed by the recruitment rules of the respective services, the age of direct recruits to Government service in the rest of subordinate and Gazetted Service shall on the first day of January of the year in which the competitive examination is held or the nomination is made in respect of the vacancy to which the direct recruitment is made, shall not be less than 18 years and shall not exceed 30 years.. The upper age limit is fixed at 35 years which has been temporarily raised to 37 years at different times.
The post(s) of teacher created under SSA Scheme or for that matter the deficiency assessed under the Re-T Scheme whether is a post under the Government may require some consideration. We are conscious that his issue has not been raised either in the pleadings or in the arguments but a reference to this issue is required for the purpose of disposal of this case. The Re-T Scheme was launched by State Government by exercising the power conferred upon it under Article 162 of the Constitution of India which is co-extensive with legislative power of state. The Government launched the Scheme by issuance of Government order. The assessment of the deficiency would mean finding out as to whether with reference to the pupil strength, the teachers are sufficient to teach them. What was to be assessed was thus, the deficiency of a teacher and this deficiency was to be assessed in Government Schools. The selection committee which was required to make selection for engagement of Re-T comprised of senior Government functionaries and the selection committee was headed by the head of the District viz District Dev. Commissioner. Minimum qualification which was fixed in the scheme for seeking consideration for being selected/engaged as Re-T was 10+2. Honorarium was to be paid by the Government. The engagement order was to be issued by ZEO, a senior officer of the Education department at the zonal level and the Re-T could be removed/disengaged by the Govt. officer alone. The engagements were made against available vacancies of teachers. The Re-T was to be absorbed as General Line Teacher in a service constituted by government.
In the entire process of making selection/engagement it was the government functionaries who were/are involved and teaching guide could be removed by the government functionary alone.
In terms of the J&K Educational (subordinate) Service Recruitment Rules 1979, issued vide SRO 240 dated 23rd April 1979, as amended from time to time, the requisite qualification for the post of General Line Teacher is 10+2. The Scheme also provided the same eligibility qualification for engaging Re-T. The Re-T under Scheme is to be absorbed as General Line Teacher.
The role of Re-Ts is to impart education to the students in the school, and under the scheme being local candidate is further charged with the additional duty of ensuring that there is increase in the number of students and tendency of leaving the education by the students midway is stopped. The General Line teacher who is appointed in the service of the Government has to have minimum academic qualification 10+2 and his/her job is to teach the students in the school. The functions, responsibilities and duties of General Line Teacher and Re-T are thus identical besides the educational qualification required for filling of the post(s) as General Line Teacher and Re-T is similar. The Re-T, holding a post under Re-T Scheme launched by the Government, cannot be stricto-senso said to be service constituted in accordance with the rules of 1956; but the post(s) under Re-T Scheme can be said to be post out side the regularly constituted service. The constitutional scheme as envisaged in Article 309, 310 and 311 denotes post under the state to mean office or position to which duties in connection with the affairs of the State are attached. A post is an employment, but every employment is not a post. A post under the State means a post under the administrative control of the State. State may create or abolish the post and may regulate the conditions of service of the persons (refer to case titled State of Assam and ors, appellants v. Kanak Chandra Dutta, respondent AIR 1967 SC 884.
As the issue has not been raised nor argued, we thus, refrain from holding the Re-T post as the post under the Government at this stage. This issue if raised can be settled in appropriate proceedings. Reference to all this was made for the purpose of this case only to indicate that the Government has been applying the rules which are being applied to the post under the government, more or less to the posts under Scheme as well.
In the admitted fact position of this case and as pleaded by the parties in their respective pleadings the private respondent on 1st of Jan.2003 was over and above 37 years of age and was not thus, entitled to get the benefit of SRO 30 of 2003 as by virtue of said SRO the relaxation of upper age limit commenced from 1st of Jan. 2003 up to 31st of Dec. 2004. Admittedly on 1st of Jan. 2003 the private respondent had already completed 37 years of age. The Government had admittedly applied SRO 30 of 2003 to the post(s) which are being filled up on the pattern of Re-T Scheme as well.
The private respondent on this premises thus could have not been appointed against the post(s) of Re-T in primary school Mohalla Bundook Khar is argued by ld counsel for appellant.
The contention of ld counsel Mr. A. Haqani appearing on behalf of private respondent that at clause (iv) of eligibility clause of the Re-T Scheme it being provided that age shall as far as possible as prescribed by the State Government, does not mean that the age fixed by the Government for making direct recruitment to the post under Government ipso facto will get applicable to the posts under the Scheme as well. The ld counsel, accordingly, submitted the appointment of the private respondent is in accordance with the mandate of the Re-T Scheme and cannot be found fault with and the appeal deserves to be dismissed. The ld counsel also in support of his contention referred to and relied upon case titled Iridium India Telecom Ltd v. Motorola INC reported in (2005) 2 Supreme Court Cases 145 (for short Telecoms case). Before dealing with this submission we would like to make it clear that this is not the case pleaded by the private respondent before the ld Single Judge. The private respondent in her pleadings before the ld Single Judge has relied upon SRO 30 of 2003 and has tried to justify her engagement on the age relaxation given in the upper age limit by the Government. We would have accordingly not allowed Mr. Haqani, to raise this issue orally. But in the impugned judgment we find that this issue has been raised by the ld counsel even before the ld writ court, but this issue has not been dealt with apparently for the reason that the ld Single Judge was under the impression that private respondent was also entitled to benefit of SRO 30 of 2003, the other issue raised was not adverted to. In view of our above referred discussion we have already held that the private respondent was not entitled to get benefit of SRO 30 of 2003 as on 1st of Jan. 2003 she had already completed 37 years of age. Since the issue was again raised before us by Mr. Haqani, in order to do substantial justice to the parties we deem it appropriate to deal with the contention raised by the ld counsel. In the Re- T Scheme there is admittedly a clause viz (iv) in the eligibility part of the Scheme and same is reproduced as under:-
iv. The candidate shall as far as possible fulfill the age qualification as prescribed by the state Government Reading the said clause of the said Scheme in conjunction with the concluding clause of the Scheme it becomes writ large on the face of the scheme that a candidate who though was over age in terms of the applicable government rules at the time of selection/appointment/engagement could still be selected/engaged as Re- T under the Scheme, in as much as if he/she did not fulfill age qualification at the time of consideration for formal appointment in the government then he/she would continue on contractual basis for future.
This paragraph, however, was modified in terms of Government order No. 1238-Edu 2001 which provided that at the time of consideration of Re-T for formal appointment in the government service his/her age qualification on the date of his/her contractual appointment will be reckoned provided that in case of candidate, otherwise, eligible for formal appointment in the government, but who may be over aged at the time of contractual appointment, relaxation of qualification/age shall be considered on merits by administrative department. Reading the government order in conjunction with part (iv) of eligibility clause of the scheme, it appears that over aged person could also be selected/engaged for contractual appointment. The authorities, it appears have appointed the private respondent by interpreting the above referred clause of the scheme as it apparently creates the same situation. The private respondent in the facts and circumstances of this case is thus, entitled to the benefit of the language used in the scheme and above referred government order.
It is accordingly, held that though in the admitted fact position private respondent was over age at the time of selection/engagement as Re-T but same cannot be set aside for the above stated reasons and it is held that private respondent was validly appointed. We are conscious that Justice has to be administered in accordance with law. But when consequences of actions are likely to be harsh, then equity or mercy gets incorporated as part of concept of Justice according to law.
Ld Add. Advocate General informed the court that the private respondent is continuously working ever since her appointment.
We have, however, carefully and consciously considered the matter on the basis of the pleadings, the government order(s) and the submissions made at bar by the ld counsel for parties. We for the reasons to be summarized hereinafter hold that the age which is prescribed for seeking employment under the Government as direct recruit is applicable to the post(s) under Re-T scheme as also SSA Scheme. The words as far as possible fulfill the age qualification as prescribed by the Government has to be in tune with, and has to be declared to be the same age which is fixed by the government for appointment as a direct recruit. Paragraph (iv) of eligibility clause of the Scheme vests an unguided, un-canalized and excessive discretion with the selection/appointing authority.
The provisions of Scheme having not fixed the lower and upper age limit for candidates seeking consideration for selection and appointment as Re-T, has made the Scheme capable of being manipulated and manoeuvred to suit the wishes and interests of few persons. The Scheme has to pass the test of Art. 14 of the Constitution. We make it clear that we are not testing the constitutional validity of the Scheme as that is not an issue in these proceedings. We, however, are considering the impact of clause (iv) of eligibility part of Scheme.
Since the selection/engagement under the Scheme are being made at local level, village/ward being the zone of consideration and there are many zonal officers working in one district under one CEO. Every zonal Education Officer may prescribe age of his own choice in view of the language used in paragraph (iv) of the eligibility clause of Scheme. One Zonal Education Officer while issuing the advertisement notification may fix age 15 years and another zonal education officer may even fix upper age limit at 45 years. Yet other authority may strictly apply the norms fixed by Government in terms of rules in determining the age qualification. This will create anomalous situation. The candidate of one zone will thus be discriminated against candidates living in another educational zone/village.
An uncertainty will be created, more so when all the candidates selected/engaged are ultimately to be considered for their absorption as General Line Teacher in accordance with the mandate of the Scheme. The candidates in themselves constitute one Single Class, but on the apparent reading of clauses of Schemes will be treated dissimilarity, which on the touch stone of Art 14 and 16 cannot be countenanced. The clause (iv) of the eligibility clause read with Government order No. 1238-Edu of 2001 are thus to be harmonized and purposeful interpretation is to be placed on them so as to ensure that similar treatment is meted out to the candidates who for the purpose of this scheme constitutes one single class. The provisions of the Scheme and the government order(s) are thus held to provide that the lower and upper age limit fixed by the government in respect of making selection/appointments to the post(s) under the Government is also applicable to the posts under the Re-T Scheme. Art. 37 of CSR is held to be applicable to the engagements under Scheme as well. The judgment cited at bar by Mr. Haqani ld counsel for private respondent which provides that the words as far as possible are directory has been so held in the facts of the Telecoms case (supra). The facts of that case are that the appellant had instituted a suit on the original side of the High Court of judicature at Bombay. The respondent had applied for extension of time for filing of written statement. Further time was granted to file written statement on payment of costs to be paid to the plaintiff- appellant.The written statement was filed within the time it was extended by the High Court. The appellant filed an appeal before Division Bench of the High Court challenging the order granting extension of time to file the written statement. The appeal was dismissed by the D.B taking the view that the proceedings on the original side will be governed by the rules and not by amended provisions of O-8 R-1 CPC which provide that in case of failure to file written statement, one of the legal consequences contemplated therein is passing of ex-parte decree. Before the Honble Supreme Court it was contended that clause 37 of the Letters Patent which deal with original side proceedings could not over ride the provisions of CPC. It was further submitted that section 129 of the CPC authorizes the High Court to make rules to regulate its own procedure in exercise of its original civil jurisdiction. The proviso, attached to clause 37 provided that the High Court shall be guided in making such rules and orders as far as possible by the provisions of Code of Civil Procedure. Repelling the argument, that they are words of limitation and must be interpreted to mean that the rule made should be in conformity with the provisions of CPC as amended from time to time, the Honble Supreme Court while referring to Full Bench of the High Court of Calcutta, which Full Bench held the expression as far as possible to be directory, to be correct view of interpreting these words in clause 37 of the Letters Patent. Paras 43, and 44 of the said judgment are reproduced as under:-
43.Learned counsel for the appellant next contends that even clause 37 of the Letters Patent establishing the High Court of Bombay, which empowers the High Court to make rules and orders on its original side, is subject to the proviso that the said High Court shall be guided in making such rules and orders as far as possible, by the provisions of the Code of Civil Procedure. He contends that the words as far as possible are words of limitation and must be interpreted to mean that the rules made should be consistent with the provisions of CPC as amended from time to time.
44.The Full Bench of the High Court of Calcutta in Manickchand Durgaprasad v.
Pratabmull Rameswar had occasion to consider this very contention with regard to clause 37 of the Letters Patent and observed:
The restriction upon the power of the Court as contained in the proviso to clause 37 of the Letters Patent is that the rules framed under that clause should, as far as possible be in-conformity with the provisions of the Code of Civil Procedure. This restriction as the phrase as far as possible indicates is merely directory. The provisions of the Code of Civil Procedure are intended for the purpose of guidance of this Court in framing rules under clause 37 of the Letters Patent. Consequently, if any rule framed by the High Court under clause 37 be inconsistent with or confers any additional power besides what is granted by the Code of Civil Procedure, the rule framed under clause 37 will prevail the corresponding provisions of the Code of Civil Procedure. The interpretation so placed on the words as far as possible is in a particular fact situation of that case traceable to two provisions of Act and Subordinate legislation.
This interpretation cannot be extended to the same words used in Re-T Scheme. As already stated if the words as far as possible in the fact situation of the Re-T scheme are held to be directory then not only illegal but unconstitutional situation as discussed hereinabove will be created.
We accordingly for the above stated reasons and also in view of the stand taken by the State that lower and upper age prescribed for making selection/appointment against posts under the Government is being applied to the posts under the Scheme as well, we hold that the words as far as possible used in the scheme are to be read down and we have already held in this judgment that the lower and upper age prescribed by the government for seeking appointment against the posts under the government shall be deemed to be the lower and upper age limit fixed for seeking selection/engagement under the scheme as well. The Article 37 of the CSR V.1 will thus, get attracted and applicable to the selection/engagement made under the scheme as well.
For the reasons, we have recorded in this judgment for arriving at the above finding we hold that the law laid down by the ld Single Judge in Mohd Altaf Mirs case (2009) 1 SLJ 253 to the extent it holds that Article 37 of CSR is not applicable to the engagement under the Scheme, is not correct view of law and we accordingly over rule the said judgment to the said extent. The other issue raised in that judgment being not an issue before us so we accordingly do not deal with that part of the judgment.
For the above stated reasons we set-aside the judgment under appeal. The discussions made in this judgment and stand taken by official respondents show that in law, the appellant who was next in merit in the panel prepared by VLC and who was also tentatively selected for being engaged as Re-T teacher in Mohalla Bundook Khar Primary School was entitled to be engaged. We in order to advance the cause of justice direct the official respondents to offer appointment to the appellant as Re-T (teacher) under SSA scheme or a teacher as the case may be within a period of one month from today treating her to be within age as at the time seeking consideration for appointment she was within age. We also for the reasons recorded in this judgment maintain the appointment of No.7. She is held to be entitled to get all consequential benefits. All the appointments made prior to pronouncement of this judgment on basis of class (iv) of eligibility clause of Scheme shall not be disturbed. Disposed of.
(Muzaffar Hussain Attar) (Virender Singh)
Judge Judge
Srinagar
13.04.2010
Ayaz