Jammu & Kashmir High Court
Suresh Kumar Sharma vs State Of J&K And Others on 18 March, 2020
Author: Rajesh Bindal
Bench: Rajesh Bindal
Sr. No.
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPA No. 218/2019 (O&M)
(in SWP No. 359/2018)
Reserved on: 04.02.2020
Pronounced on: 18.03.2020
Suresh Kumar Sharma ... Appellant(s)
Through:- Mr. Abhinav Sharma, Advocate
v/s
State of J&K and Others ... Respondent(s)
Through:- Mr. F. A. Natnoo, AAG
HON'BLE THE CHIEF JUSTICE
Coram:
HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
ORDER
RAJESH BINDAL J
01. The petitioner having failed before the learned Single Judge has filed the present intra-court appeal impugning the judgment dated 04.06.2019.
02. Learned counsel for the appellant submitted that first advertisement for recruitment to the posts of Librarian, notifying 42 posts, was issued on 16.12.2013. The petitioner, being already in government service in Technical Education Department, was eligible to apply for the post, having requisite qualifications. The maximum age prescribed for in service candidate as on 01.01.2013 was 45 years. The petitioner applied for the post. However, the aforesaid advertisement was withdrawn vide order No. 143-PSC of 2016 dated 29.09.2016. Thereafter a fresh advertisement was issued on 13.12.2016. 2 LPA No.218/2019 As with the passage of time certain more posts had fallen vacant, the number of posts was increased from 42 to 67. The age for in-service candidates was prescribed as 40 years, as on 01.01.2016.
03. Referring to the Jammu and Kashmir Education (Gazetted) College Service Recruitment Rules, 2008 (for short „the 2008 Rules‟), it was submitted that Rule 2(d) defines „Government‟ to mean the Government of Jammu and Kashmir, Rule 2(f) defines the „member of the service‟, Rule 2(j) defines „service‟, whereas Rule 9 provides for eligibility of government servant for direct recruitment. The aforesaid Rule provides that a person already in service may apply through proper channel, in case he/she fulfills eligibility criteria. The upper age limit for such government servants shall be provided as in the general rules. The aforesaid rule does not provide that the candidate has to be in service of the Education Department itself. He can be in service in any of the government department.
04. He further argued that a Note appended after Schedule-II attached to the 2008 Rules clearly provides that the upper age limit for appointment of in service candidates shall be 45 years as on 1st January of the year of advertisement. Though Schedule-II was substituted vide notification dated 21.04.2014, however the Note appended after Schedule-II was not tinkered with. Hence, the same remained applicable even after substitution of Schedule- II.
05. Learned counsel for the petitioner further referred to Government Order No. 586-GAD of 2014 dated 03.06.2014 by which the age for different categories for recruitment in Government service was modified, with reference to competitive examination to be conducted by the Public Service 3 LPA No.218/2019 Commission, with effect from 01.01.2014. This does not provide for the age for in-service candidates. Learned counsel further referred to the stand taken by the respondents in the objections filed.
06. Referring to the error committed by the learned Single Judge, learned counsel submitted that the Government Order No. No. 586-GAD of 2014 dated 03.06.2014 did not provide any age for in-service candidates. However, learned Single Judge has taken the same as prescribed therein. He further contended that after the first advertisement dated 16.12.2013 was withdrawn, the Education Department had written to the Commission on 23.08.2016 that the cut-off date for age criteria in case of candidates who had applied in response to the earlier advertisement, be treated as 01.01.2013. At that time the petitioner was below 40 years of age, hence eligible. The Commission had referred back the matter to the indenting department requesting for taking opinion from the Law Department. Without waiting for the opinion, eligibility was fixed in the advertisement notice. Hence, rejection of candidature of the petitioner was totally erroneous. Mr. Sharma further argued that during earlier selections, on recommendation by the Commission to the Department in case of deserving candidates, relaxation in age was given. The same process ought to be followed even now. It is additionally claimed that the qualification and the experience possessed by the petitioner is far better than the candidates in whose cases age was relaxed earlier.
07. On the other hand, Mr. F. A. Natnoo, learned counsel appearing for respondent No.2 & 3/the Commission submitted that the Commission is merely the recruiting agency. It had issued advertisement as per the rules and prescribed the criteria mentioned therein. The petitioner cannot have any 4 LPA No.218/2019 grievance on that account. Once fresh advertisement dated 13.12.2016 was issued after withdrawal of the earlier one dated 16.12.2013, the eligibility conditions have to be considered in terms of the advertisement, pursuant whereto the selections are to be made. Rule 9 of the 2008 Rules clearly provides that the age of the candidates has to be as provided in the General Rules. As per General Rules applicable on the date the advertisement was issued, the maximum age for in service candidates, was 40 years. It is submitted that there is no error in prescription of that age in advertisement issued.
08. Mr. Natnoo further submitted that in service candidates would mean that the candidate who were already serving in the Higher Education Department. He further submitted that the Note, which was appended to Schedule-II to the Jammu and Kashmir Education (Gazetted) College Service Recruitment Rules, 2008, stood deleted with the substitution of the Schedules vide SRO No. 124 dated 21.04.2014. Hence, the appellant‟s reliance thereupon to substantiate his case that the age limit should be taken as 45 years and not 40 years as prescribed in the General Rules, is totally misplaced. The further submission is that there is no error in the order passed by the learned Single Judge. It is urged that the appeal deserves to be dismissed.
09. We have heard learned counsel for the parties and perused the relevant referred record.
10. The undisputed facts which have come on record are that the Commission issued an advertisement dated 16.12.2013, calling for applications for the posts of Librarian, notifying 42 vacancies. The advertisement prescribed qualifications and also the age to be eligible for different categories 5 LPA No.218/2019 of the candidates, as on 01.01.2013. For in service candidates, the age prescribed was 45 years. On account of some error, the aforesaid advertisement was withdrawn by the Commission vide order No. 143-PSC of 2016 dated 29.09.2016, before the selection process could conclude. The candidates were advised to approach the Commission for refund of the fee paid by them. Meaning thereby the relationship of the candidates, who had applied in pursuance to the aforesaid advertisement, ended with the refund of the fee.
11. A fresh advertisement was thereafter issued on 13.12.2016 notifying 67 vacancies of Librarians. The age as prescribed in the aforesaid notification, as on 1st January 2016 was as under:
"2. Age as on 1st January 2016;
Minimum: = 18 years
Maximum: = 40 years
Candidates in Govt. Service: = 40 years
Physical Challenged candidates: = 42 years
Candidates belonging to RBA/SC/ST/
ALC/SLC categories = 43 years
Ex-serviceman: = 48 years"
12. The date of birth of the petitioner, as claimed by him is 24.08.1973. Hence, as on 01.01.2016, he was more than 42 years of age.
13. The two issues are sought to be raised by the learned counsel for the appellant, the first being the meaning of term „candidates in government service‟ and the second being, the maximum age for such candidates.
14. To complete the narration of facts before the aforesaid legal issues are considered, it may be added that the after issuance of advertisement on 13.12.2016, when the petitioner was not found to be eligible on account of the age bar, he filed SWP No. 69/2017 in this Court. In this writ petition, vide order dated 18.01.2017, this Court directed the Commission to entertain the application of the petitioner and allow him to participate in the selection 6 LPA No.218/2019 process. It was in pursuance thereto that the petitioner participated in the process of selection and his candidature was considered by the Commission. In the public notice dated 05.02.2018 issued, his candidature was rejected assigning the reason as „overage‟. The relevant part of the aforesaid public notice is extracted below:
"Whereas, further 08 candidates have been found ineligible as mentioned against each and their candidature is rejected. However these 08 candidates can file an appeal with supporting documents before the appellate authority of the Commission within 10 days from the date of issuance of this notice.
S REG.NUMBER NAME PARENTAGE DEFICIENCY
No. IF ANY
1. 17011809300266 SURESH INDER RAJ Over aged
KUMAR SHARMA
SHARMA
2-8 X X X X
"
15. Though the aforesaid writ petition was still pending in this Court but still the petitioner did not amend the same to claim any further relief to which he may be entitled to and the cause of action for which may have arisen during pendency of the aforesaid writ petition.
16. Instead the petitioner choses to file a fresh writ petition bearing SWP No. 359/2018. It cannot be denied that the substantive relief in both the petitions is for appointment as Librarian with reference to advertisement issued on 13.12.2016.
17. Para 32 of the second writ petition filed by the petitioner, the order passed wherein is the subject matter of challenge in the present appeal, reads as under:
"32. That the petitioner has not filed any other writ petition before this or any other competent court on the same subject matter."7 LPA No.218/2019
18. This court in OWP No. 2508/2018 titled Baba Institute of Nursing and Paramedical Sciences vs State of J&K and others, decided on 24.12.2019 considered the issue regarding mentioning of filing or non-filing of a writ petition earlier for the same relief and the consequences of its non- mentioning.
19. Not only this, even at the time hearing of the present appeal, the appellant did not bring it to the notice of the Bench that the earlier writ petition filed by him, in terms of an interim order passed wherein the petitioner was directed to be interviewed, was still pending.
20. What was challenged in the subsequent writ petition, was the notice dated 05.02.2018 issued by the Commission notifying deficiencies in the applications furnished by the candidates for the posts of Librarian in Higher Education Department. As noted above, the name of the appellant finds mentioned in the aforesaid public notice specifying the deficiency as „over aged‟. Substantively the issue regarding his eligibility with reference to age, being in service candidate, had been raised by the petitioner in the previous writ petition which was still pending, when the subsequent writ petition was filed.
21. The aforesaid public notice provided for an appeal. At the time of arguments also none of the counsels addressed the aforesaid issue. Nothing was pointed out by the appellant as to whether he had preferred any appeal.
22. Once the appellant had earlier filed a writ petition laying challenge to the age prescribed for in-service candidates as 40 years and in terms of an interim order passed in SWP No. 69/2017, the appellant was directed to be provisionally interviewed, rejection of the candidature of the 8 LPA No.218/2019 petitioner being over age could be subject matter of challenge in that writ petition only, instead of filing a fresh writ petition.
23. The post of Librarian is governed by 2008 Rules. Prior to the amendment carried out in the aforesaid Rules, vide SRO 124 of 2014 dated 21.04.2014, the qualifications and the source of recruitment for the above said post were prescribed as under:
"C 8,000- Librarian (i) Master‟s Degree in (i) 60 % by direct 13,500 Library Science/ recruitment Information (ii)40% by Science/Documentati promotion from on or an equivalent amongst the professional degree following Non-
with 55% marks Gazetted Categories
(50% marks in case with M.Lib or M.A
of Scheduled Caste/ B. Lib. Degree, on
Scheduled Tribe and the basis of
physically and seniority through
Visually DPC/PSC:-
Handicapped
candidates) or its (a) Sr. Librarian
equivalent grade of (6500-10500) with
"B" in the seven 8 years of service.
point scale from an
(b) Librarian (5000-
Indian university
8000) with 10 years
organ equivalent
of service.
Degree from an
Indian/Foreign (c) Jr. Librarian
university having (4000-6000) with
qualified NET/SLET/ 12 years of service.
Ph.D/M.Phil
(d) Library
(ii) Master‟s Degree Assistant/Regarding in Library Science room Assistant (M. Lib) or B.A. B. (3050-4590) with Lib 14 years of service.
(The persons from each succeeding category can be considered only with candidates are not available in the preceding category)"
24. However, after amendment, the qualifications and the source of recruitment now prescribed are as under:9 LPA No.218/2019
" E Librarian Rs.15,600 (a) Good academic By Direct
-39,100+ record with Recruitment 6,000 knowledge of Computerization of Library, having at least 55% marks [50% excluding any grace marks, in case of Scheduled Caste/ Scheduled Tribe/Differently abled (Physically and Visually differently abled) Categories/ Ph.D degree holders, who have obtained their Master‟s Degree prior to 19th September, 1991] or an equivalent grade in a point scale wherever grading system is followed, at the Master‟s Degree level Library Science/ Information Science/Documenta tion Science, or an equivalent professional degree from an Indian/accredited Foreign University;
(b) The candidate must
have cleared
NET/SLET/SET
conducted by the
UGC, CSIR/AIU
The candidates who
are, or have been
awarded a Ph.D
degree in
accordance with the
University Grants
Commission
(Minimum
Standards and
Procedure for
Award of PH.D
degree regulation),
2009 shall be
10 LPA No.218/2019
exempted from the
requirement of the
minimum eligibility
condition of
NET/SLET/SET"
25. The minimum and maximum age of the candidates was prescribed in the public notice dated 31.12.2016. The same has already been extracted in para 11 above. The requirement is to be fulfilled as on 01.01.2016.
26. The issue sought to be raised is with regard to the meaning of expression „candidates in government service'. On a plain reading of the aforesaid term what comes to our mind is that a candidate can be in service of the government in any department. It shall not be restricted to the higher education department, to which post in question pertains to.
27. A perusal of the Schedule-II attached to the Rules as amended vide notification dated 21.04.2014 shows that the post of Librarian is one of the posts in the lowest pay band i.e., 15,600-39,100+6,000. There is no post below that. The very condition allowing the in service candidates to apply for the post would be meaningless for this post, whereas it may have relevance for the posts higher in status which are very few in number, namely, Director Colleges, Principal, Associate Professor, Physical Training Instructor (Selection Grade-II) and Librarian (Selection Grade-II). Opportunity is given to the employees who are in service in any of the Government department to improve their career, in case they already possess or acquire better qualification during their service career. Initially, an employee may join service which may not be commensurate to his qualification. However, in case he fulfills the eligibility and conditions gets an opportunity, he should not be normally debarred to participate in any selection process. However, this would 11 LPA No.218/2019 be subject to permission granted by Head of the Department concerned, considering all relevant factors. In case opportunity is given to only the members of the service who are governed by Rules concerned, it will be restricting growth of opportunities in a very tight compartment. The same will not have any nexus with the object sought to be achieved. Hence, the argument of learned counsel for the respondents that to be eligible to participate in the selection process the appellant had to be one of the employee in service governed by the 2008 Rules is totally misconceived. Hence, this argument is rejected.
28. As far as the question of eligibility of the appellant with regard to his age is concerned, Rule 9 of the 2008 Rules, which deals with the issue, is extracted below:
"9. Eligibility of Government servant for direct recruitment.-
A person already in Government service may apply through proper channel for direct recruitment to a vacant post in any particular class or category in the service, if he/she possesses the educational and other qualifications prescribed for recruitment to such class or category of post. The upper age limit of such Government servants shall be as provided in the general rules:
Provided that in case of a post which requires a higher degree of specialization and/or experience, the Government may prescribe higher age limit." (emphasis supplied)
29. A perusal of the aforesaid Rule shows that upper age limit of such government servants who are eligible to apply for direct recruitment shall be as provided in the General Rules. It is not disputed that the General Rules are the Jammu and Kashmir Civil Service Regulations, 1956 (for short „the CSR‟). 12 LPA No.218/2019
Regulation 37(3) therein, which is relevant and was existing prior to various amendments, is extracted below:
"37(1) & (2) xxxxx
3. Notwithstanding anything otherwise contained in Articles 37(1) and 37(2) the following maximum age limits shall apply (and shall always be deemed to have applied from 16.12.1988) in respect of direct recruits to government service in all the subordinate and Gazetted services on the first day of the January of the year in which the competitive examination is held or nominations is made in respect of the vacancies to which direct recruitment is made:-
Category Maximum age
(i) General candidates 35 years
(ii) Physically handicapped 37 years
(iii) Members of Scheduled Castes and 38 years
Scheduled Tribes
(iv) Candidates already in Government 38 years
service
Provided that the age limits as shown above against each category may be relaxed by the competent authority in respect of any individual case on the merits of each case.
Provided further that the Government may in respect of any particular service prescribe a different age."
30. Subsequently, vide Government Order No. 971-GAD of 2005 dated 05.08.2005 an amendment was carried out whereby the maximum age limit for the direct recruitment to Government Service in all the Subordinate and Gazetted Services, other than those filled through Combined Competitive Examination, was amended. The change of maximum age in different categories after the aforesaid Government order is extracted below:-
"(i) General Category Candidates :: 37 years
(ii) Physically challenged :: 39 years
(iii) Members of SC/ST :: 40 years
(iv) Candidates already in Government service/ Ex-servicemen. :: 40 years"13 LPA No.218/2019
31. As submitted by learned counsel for the respondents an amendment was carried out in the Government Order No. 971 dated 05.08.2005 vide Government Order No. 586 of 2014 dated 03.06.2014 for change of maximum age for the following categories:
"
S.No Category From To
1. General Category Candidates 37 years 40 years
2. Reserved Category Candidates 40 years 43 years
3. Physical challenged Candidates 39 years 42 years
"
32. The final position as has been noticed by the learned Single Judge in Para 1 of the impugned judgment is fortified in terms of the Regulations and the amendments produced before us at the time of hearing except that for ex-
serviceman, there was nothing pointed out. It may not be relevant also for the case in question.
33. The position as has been noticed by the learned Single Judge is extracted herein below:
"Age as on 01.01.2016 Minimum 18 years Maximum 40 years Physical Handicapped candidates 42 years Candidates belonging to RBA/SC/ST/ALC/SLC 43 years categories In-Service Candidates 40 years Ex-Serviceman 48 years"
34. The whole case of the appellant is based on a Note appended towards the end of the 2008 Rules after the Schedule, which reads as under;
"Note:- The upper age limit for appointment of in-service candidates to Gazetted Service in the Higher Education Department shall be 45 years as on 1 st of January of the year of advertisement."14 LPA No.218/2019
35. The contention raised by learned counsel for the appellant was that despite substitution of the Schedule-II in the 2008 Rules, the Note still subsists. Hence, for in service candidates the age has to be taken as 45 years. This argument is totally misconceived. Firstly, it is not only the Schedule-II, which was substituted vide SRO 124 dated 21.04.2014. In fact both the Schedules attached to the 2008 Rules were substituted and in the substituted Schedule, there is no Note appended. The said Note in isolation has no place or meaning in the Schedule-II as it has no relation also otherwise with any of the Rule.
36. A perusal of the Schedules I & II attached to the 2008 Rules shows that Schedule-I provides designation of the posts, pay scales and number of posts, whereas Schedule-II provides for the class of posts, category, grade, designation, qualifications required and the method of recruitment. The 2008 Rules otherwise also nowhere provide for minimum and maximum age for entry into service for any of the post governed by those rules. Only Rule 9 provides that for in service candidates the upper age limit shall be such as provided in the General Rules. Rule 11 provides that with regard to the matters not specifically covered under these rules, the members shall be governed by the rules, regulations and orders applicable to the State Civil Services in general.
37. For the in service candidates, once Rule 9 clearly provides that upper age limit shall be as provided in General Rules, any Note appended to the Schedule, with no relevance at the place where it stands placed, will not override the same and for the purpose of determining the age limit, we will 15 LPA No.218/2019 have to refer to the General rules i.e., the Jammu and Kashmir Civil Service Regulations, 1956.
38. As has been referred to above, in the Jammu and Kashmir Civil Service Regulations, 1956, as existing on the date of issuance of advertisement, the maximum age limit for in service candidates was 40 years. The appellant admittedly being more than 40 years of age as on 01.01.2016 was certainly overage for the post in question.
39. For the reasons mentioned above, we do not find any merit in the present appeal and the same is accordingly dismissed.
(RAJESH BINDAL) (GITA MITTAL)
JUDGE CHIEF JUSTICE
Jammu
18.03.2020
Vijay
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes
VIJAY KUMAR
2020.03.18 12:59
I attest to the accuracy and
integrity of this document