J. L. Nageswara Rao
J. Sanjiv Khanna
Appellant- State of Jammu And Kashmir
The present appeal has been filed by the State Jammu and Kashmir against the Judgment of the High Court Division Bench of Jammu and Kashmir. The division bench allowed for the continuance of the appointment of Respondent 2, who did not meet the qualifications set under an appointment scheme.
- The State of Jammu and Kashmir started a scheme in 2000 for decentralizing the management of elementary education to include community participation and involvement. According to this scheme, teaching guides were to be appointed in primary and middle schools to make up for the deficiency of staff. An advertisement was published in the daily newspaper for the same.
- Under this scheme, a candidate looking for an appointment must be a permanent resident of Jammu and Kashmir and should belong to the village where the deficiency is identified. They must have the minimum qualification of 10+2, and should ‘as far as possible’ meet the age qualification as prescribed by the State Government.
- Respondent 2 was appointed under this scheme, and respondent 1 approached the High Court under Article 226 read with Section 103 of the Constitution of Jammu and Kashmir to quash the order by which respondent 2 was appointed.
- This writ was denied by a single judge bench but an appeal was allowed to the division bench. The division bench directed the appointment of Respondent 1 under the scheme and continuance of Respondent 2’s appointment.
- The present appeal is filed by the State challenging the decision of the Division Bench.
Section 103 Constitution of Jammu and Kashmir- Power of Jammu and Kashmir High Court to issue writs.
Article 226 Constitution of India- Power of High Courts to issue writs.
Article 14 Constitution of India- Right to equality before the law and the equal protection of the laws
Article 16 Constitution of India- No discrimination in employment for any office under the State.
Whether theHigh Court has committed an error in directing the appointment of Respondent No. 1 and also the continuance of Respondent No. 2?
- The first respondent submitted that Respondent 2 has crossed the maximum age limit of 37 and was not eligible for appointment. They contended that the High Court erred by dismissing the writ and by holding Respondent 2 eligible.
- Respondent 2 replied that according to the words “as far as possible” in the qualification directory, the authorities had the power to relax the age criteria. They also referred to the SRO 30 of 2003 which allowed for relaxation on the upper limit of age.
- The apex court reaffirmed the view that Respondent 2 was not eligible for the age relaxation, as stated by the division bench. The respondent was of 37 years when it was applied.
- The Division Bench’s method of construing the age limit criteria was also approved. The Division Bench noted that there is no dispute that the upper limit is 35 years, after examination they observe that if the words “as far as possible” were left for interpretation, then even 45-year-olds could be appointed.
- There would be no uniformity in selection under the scheme. Thus, it would become unconstitutional and violative of Articles 14 and 16 of the Constitution of India. The High Court, therefore, interpreted the upper age limit to be a mandatory provision.
- The Supreme Court finds that appointments in public posts should strictly be in accordance with Articles 14 and 16 of the Constitution of India. The eligibility criteria need to be uniform and the scope of “arbitrary selections by unfettered discretion being vested in the authorities” should be limited.
- Respondent 2’sappointment was however not discontinued. The Supreme Court stated she would be eligible for absorption in a formal appointed by the government. The state was directed to accommodate her in another vacancy where the age criteria did not apply.
- Finally, it was declared the High Court committed no error by directing the appointment of Respondent 1.
- In the present case, the relaxation of an upper age limit led to the appointment of the second respondent. This practice however was seen to be violative of the right to equality under Articles 14 and 16 of the Constitution of India. Leaving the provisions of the upper age limit relaxed would give uncontrollable power to the executive and would allow them to choose the people of their choice by completely relaxing the set criteria.
- The Court states that such criteria should be treated as ‘mandatory’ and not as ‘directory’. This increases the importance given to the criteria leaving little scope for misuse.
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- What does Article 16 of the Constitution say?
- What are the qualifications required under the scheme in contention?
- Do you think upper limit on age should have been relaxed?