Provision For Upper Age Limit Is Mandatory & Can't Be Relaxed; Eligibility Criteria For Public Appointment Must Be Uniform : Supreme Court

Observing that eligibility criteria for appointment to public posts should be uniform, the Supreme Court has held that provision relating to upper age limit should be construed as "mandatory" and not "directory". Holding the upper age limit provision to be "directory" would mean that the authority is given unbridled power in giving relaxations to persons of their choice. That is impermissible as per the Constitutional scheme, as the appointments to the public posts must be in accordance with Articles 14 and 16.

The Supreme Court also observed that there could not be scope of arbitrary selections by unfettered discretion being vested in the authorities.

Considering an appeal against a judgment of the Jammu and Kashmir High Court, the Supreme Court observed that the High Court correctly construed the provision relating to upper age limit as "mandatory".

"Appointments to public posts should be strictly in accordance with Articles 14 and 16 of the Constitution of India. Eligibility criteria should be uniform and there cannot be scope of arbitrary selections by unfettered discretion being vested in the authorities. Construing the provision relating to upper age limit as directory would be conferring unbridled power in the executive to choose persons of their choice by relaxing the age beyond 35 years. In such case, the provision would have to be declared as unconstitutional," bench of Justices L Nageswara Rao and Sanjiv Khanna observed in the case of The State of Jammu and Kashmir v. Shaheena Masarat and Anr.

Factual Background

The State of Jammu and Kashmir on April 28, 2000 floated the Rehbar-e Taleem (Re-T) scheme for promoting and decentralizing management of elementary education with community participation and involvement. Teaching guides ("ReT") in primary and middle schools were to be appointed for covering the deficiency of staff as per the existing norms according to the scheme and thereafter an advertisement was published in daily newspaper "Aftab" on November 29, 2002.

For any candidate seeking appointment under the scheme and advertisement, the requirement was that he/she should be State's permanent residence, belong to the village where deficiency of staff was assessed, possess minimum qualification of 10+2 and should 'as far as possible' fulfill the age qualification as prescribed by the State Government.

Pursuant to the November 29, 2002 notification, 11 candidates had applied for selection under the scheme for the primary school at Bundook Khar Mohalla Rainawari and Ruhi Akhtar ("Respondent 2") was selected for appointment as ReT.

Shaheena Masarat ("Respondent 1") approached the Jammu and Kashmir High Court by way of a writ under Article 226 read with Section 103 of the Constitution of Jammu and Kashmir for quashing the order dated May 14, 2003 by which Ruhi was appointed as ReT.

Shaheena's writ was dismissed by the Single Judge but the Division Bench on April 13, 2010 directed for Shaheena's appointment within a period of one month from the date of judgement. The High Court further directed for continuance of Ruhi also.

Aggrieved the State has approached the Top Court.

Submissions of Counsels

The State's counsel submitted that the High Court by directing for Shaheena's appointment and continuance of Ruhi's appointment committed an error.

Shaheena's counsel contended that Ruhi had crossed the maximum age limit of 35 years and was not eligible to apply for appointment as a teacher. It was also his contention that SRO 30 of 2003 which relaxed the maximum age for appointment of teacher by 2 years was not applicable in the instant case. The counsel further argued that the Single Judge of the High Court erroneously dismissed the writ by holding Ruhi as being eligible for appointment as ReT on a misrepresentation of the condition relating to upper age limit.

Ruhi's counsel contended that her appointment was strictly in terms of the advertisement and that the relaxation of maximum age by way of SRO 30 of 2003 was applied to all selections. It was also Counsel's contention that Ruhi was appointed on May 17, 2003 and had been continuing since then. The counsel further argued that the words 'as far as possible' were directory and the authorities had power to relax the maximum age beyond 35 years.

Court's Observations

The Top Court affirmed the view of division bench that Ruhi was not entitled to seek benefit of age relaxation since she had completed 37 years on January 1, 2003 and observed that SRO 30 of 2003 giving relaxation of upper age limit from January 1, 2003 to December 31, 2004 could not be made applicable to a selection which had commenced by issuance of advertisement dated November 29, 2002.

To affirm the Division Bench's view,  the Supreme Court took note of the fact that the upper age limit notified in the advertisement for appointment as ReT was 35 years as on January 1, 2003 which was the cut off date for determining eligibility of a candidate who had applied in response to the advertisement dated November 29, 2002. It had also been considered by the bench that since Ruhi on January 1, 2003 was more than 35 years, the Single Judge after relying on SRO 30 of 2003 considered Ruhi's as eligible for appointment.

The Top Court also approved the Division Bench view of construing the provision relating to upper age limit as mandatory.

"The eligibility criteria for appointment as Re-T by the scheme as well as the advertisement includes a condition that a candidate shall 'as far as possible' fulfill the age qualification as prescribed by the State Government. There is no dispute that the upper age limit for appointment as Re-T is 35 years. The Division Bench examined the scheme and noticed that there is no minimum age limit specified and if the words 'as far as possible' for upper age limit are interpreted as directory, the officers would have discretion to select candidates even after they cross 45 years. Further, the Division Bench was of the opinion that there will be no uniformity in selection of Re-Ts in the State. The scheme would be rendered unconstitutional as being violative of Articles 14 and 16 of the Constitution of India. Therefore, the High Court construed the provision relating to upper age limit as mandatory," bench observed in this regards.

With regards to continuance of Ruhi's appointment, the bench set aside the direction of the division bench of High Court. Since Ruhi had been continuing to work from 2004, the bench directed the State to accommodate her in any other vacancy and also held that she would not be entitled to any benefits prior to the date of her appointment afresh other than the salary and other allowances already paid for her services.

Case Details

Case Title : The State of Jammu and Kashmir v. Shaheena Masarat and Anr.

Coram : Justices L Nageswara Rao and Sanjiv Khanna

Citation : LL 2021 SC 518

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