- (1.) In all these writ petitions, the primary question involved is whether the cut off date for reckoning the upper age limit in the advertisements issued in the month of November 2013 by different district authorities for recruitment to the post of Assistant Teacher in Government Primary Schools Class 1 to V i.e. 01.08.2013 is arbitrary or not ? Whether such cut off date for upper age limit should have been reckoned as 01.07.2011 instead ? The matter was earlier taken up on few dates and on 20.8.2014, this Court after recording the plea of the petitioners and the stand of the respondents as well on the aforesaid issue, requested the State to accord due consideration to the issues involved and come forth with their considered stands. The order dated 20.08.2014 is quoted hereinunder for better appreciation of the issue involved which have also crystallized between the parties:- "In all these writ petitions the petitioners were candidates under the Advertisement no. 27/11 for appointment of Assistant Teachers in the Primary School for Class(I) to (V) under the Government of Jharkhand. It is also their case that before issuance of the said advertisement no recruitment to such posts were conducted after the last exercise was done under the advertisement of 2002. These petitioners and many others were eligible as per the maximum age limit prescribed under the said advertisement by cut off date 1st July, 2011. However, the entire process of appointment under the said advertisement and subsequent corrigendum issued thereunder were subject matter of challenge by certain persons in W.P.(S) No. 3099, 6592 and 6495 of 2011 ( Anjuman TaraqqieUrdu Jharkhand & Ors. ( in W.P.(S) No. 3099/2011), Krishna Murari Prasad (in W.P.(S) No. 6592/2011) and Balmiki Chaubey (in W.P.(S) No. 6495/2011). The matter was considered by learned Division Bench of this Court vide judgment dated 22nd November, 2011 and accordingly the entire process of selection undertaken under the advertisement no. 27/2011 was quashed. The detailed reasons were recorded in the said judgment which has also been enclosed in the instant writ petitions such as Annexure3 in W.P.(S) No. 7122 of 2013. While quashing the entire selection undertaken under the said advertisement, the learned Division Bench however proceeded to observe and directed that the State Government should proceed for appointment of the teachers denovo by following guidelines issued by the NCTE and in accordance with the Rules for appointment as the NCTE has only prescribed the eligibility criteria, passing of TET whereas, the prescribed procedure for appointment on the post is in the prerogative of the State and within its jurisdiction. Learned court keeping into account that the session for schools will start from the month of July, 2012, gave an anxious consideration thereto and directed the Respondent State to take steps that, all appointment can be made by the State Government before next session. It is true that the appointment process could not be completed by the next session i.e. July, 2012 and in fact has yet not been completed. In the mean time, the State framed the Jharkhand Primary School Teachers Recruitment Rules, 2012 notified on 5th September, 2012, inter alia, laying down the procedure, conditions and the eligibility criteria for recruitment to the post of Assistant Teachers/Urdu Teachers for Primary School Class (I) to (V) and Class (VI) to VIII). At the same time, under the Advertisement no. 95/12 the State also undertook an exercise for holding Teachers Eligibility Test exam. The said exam was held sometime in the month of May, 2013 and these petitioners' claimed to have qualified in T.E.T. The Respondent State thereafter proceeded to issue advertisement in individual districts in November, 2013 for appointment to the post of Assistant Teachers and Urdu Teachers in Primary School Class (I) to (IV). The cut off date for making an application under the said advertisement was 26th November, 2013 and upper age limit fixed under the said advertisement was to be reckoned on the cut off date i.e., 1st August, 2013. As per the said advertisement, the upper age limit was prescribed for different categories with relaxation of 5 years in each category in terms with Rule 13 of 2012 Rules. Under the advertisement of 27/2011, the upper age limit of different categories of candidates were also prescribed. Comparison of the upper age limit under the Advertisement no. 27/11, and the advertisement issued in November, 2013 shows that in spite of relaxation of 5 years of age in the advertisement issued in November, 2013, the upper age limit remained the same for all categories of candidates as was fixed under the Advertisement no. 27/11. As a result of upper age limit fixed under the instant advertisement, all these petitioners became ineligible to apply for and compete for appointment as Assistant Teachers/Urdu Teachers in the Primary School in the State of Jharkhand. These petitioners have therefore approached this Court, inter alia either for reckoning the age of upper age limit from the cut off date i.e., 1st July, 2011 as was provided under the Advertisement no. 27/11 or to grant them proportionate relaxation in the upper age limit, so that they may be eligible by cut off date 1st August, 2013 under the instant advertisement to compete and get appointed for the said post of Assistant Teachers. Learned counsel appearing on behalf of the petitioners in the background of the aforesaid facts, have stated that for no fault of these petitioners they are being denied valuable opportunity to participate and compete under the instant advertisement because of such age bar when the entire selection process under the Advertisement no. 27/11 was quashed by this Court on account of several lacuna, irregularities and illegalities found during the course of selection process. It is submitted that such a recourse on the part of the State would be rather inequitable and a wide category of eligible persons who could have given a larger choice to the State to appoint therefrom competent teachers for primary schools would be denied, if the plea of the petitioners is not accepted. Learned counsel for the petitioners have submitted that in similar circumstances in a matter relating to appointment of Civil Judge (Junior Division), learned Division Bench of this Court directed the respondents to give relaxation to all candidates by fixing the cut off date as 31st January, 2003 in stead of 31st January, 2008 under the Advertisement no. 13/08 vide its judgment in the case of Sanjay Kumar Sahay & ors. Vs. State of Jharkhand and others, 2008 3 JCR 267 and other analoguos cases. It is submitted that by the same reason and logic in the subsequent exercise for recruitment to the post of Civil Judge (Junior Division) under Advertisement no. 4/13 also the learned Division Bench of this Court in the case of Bhola Nath Rajak & ors. vs. The State of Jharkhand & Ors., 2014 1 JCR 616 ) directed the respondents to reckon cut off date for calculating upper age limit as 31st January, 2009 in stead of 31st January, 2013. The learned Division Bench in those cases took into account that there had been no recruitment over a period of time and which could have rendered many aspirant ineligible on account of a bar of upper age limit. Learned Division bench also took into account that no harm would be done if the State has a wider range of candidates to compete for and get appointed the post of Civil Judge (Junior Judge) which is being made after considerable interregnum. Learned counsel for the petitioners also referred to provisions under 2012 Rules, specifically Rule 28 under Chapter IV, thereof which is in the nature of Removal of Difficulty Clause; Henry VIII Clause. It has been submitted on their part that the entire appointment process has yet not been completed and till date only a preparation of merit list is being undertaken. The State should therefore be directed to relax the upper age limit or treat the upper age limit reckoned from 1st July, 2011, so that all such persons who were candidates under the advertisement no. 27/11 including the present petitioners may have an equal opportunity to participate and compete with other eligible persons under instant advertisement. A counter affidavit has been filed earlier on behalf of Respondent State taking a stand that the instant selection process is being undertaken under Rules of 2012 which permit relaxation of 5 years of age which has been incorporated in the said advertisement. However, in the wake of the aforesaid submissions made by learned counsel for the petitioners the learned counsel for the Respondent State, Mr. S. K. Verma and Mr. Sumir Prasad, Standing Counsels seek a short time to obtain instructions from the competent authority under the Respondent State, so that the matter can be reconsidered at the highest level before it is finally adjudicated by this Court. On the aforesaid request of the learned counsel for the Respondent State, let the matter appear after 2 weeks i.e., on 10th September, 2014 as the issues raised herein require due consideration at the level of the respondent authorities of the State. It is expected that pending their consideration in the aforesaid period the selection process may not be finalized. Let a copy of this order be handed over to learned counsel for the Respondent State."
(2.) The State has filed a supplementary counter affidavit thereafter, inter alia, taking the stand that (i) the advertisements have been issued in consonance with the 2012 Rules and no infirmity in the advertisements has been pointed out by the petitioners; (ii) rules itself are not under challenge; (iii) referring to the various judgments in the counter affidavit passed earlier in one or the other cases by this Court, the respondents have also submitted that fixation of upper age limit is fully in consonance with the public policy as also the ratio laid down by the judgment of the Hon'ble Court earlier; (iv) they have also submitted that the selection process has been completed in two districts of Ranchi and Palamau, where merit list has been also published and appointment letters have also been issued while in the district of Koderma, the merit list has been published on the Website. Apart form above contentions, during course of argument, Mr. Srijit Choudhary, learned GA has also submitted that there is nothing arbitrary in fixation of cut off date as 01.08.2013 under the said advertisements. The entire exercise initiated under Advertisement No. 27/2011 was quashed earlier by the Division Bench of this Court and nothing remained so far as the said selection exercise is concerned. It is further submitted that the present exercise has been conducted under the new 2012 rules in line with the Right of Children to Free and Compulsory Education Act, 2009 which requires qualifying of Teachers Eligibility Test. No right flows from the previous judgment in favour of the petitioners to seek relaxation in upper age limit or shifting of cut off date of upper age limit. Further arguments have also been made that once the selection process has commenced, the rules of the game can not be changed. Learned counsel also submitted that in case, the pleas of the petitioners are accepted, who are only few in numbers, the entire selection process would be delayed where thousands of applicants are involved and appointments have to be made for thousands of vacancies This itself would lead to inequity.
(3.) Learned counsel for the respondents have also relied upon the same judgment passed by the learned Division Bench in the case of Bhola Nath Rajak & others vs. The State of Jharkhand & others, 2014 1 JCR 616 ) and submitted that the necessary conditions or factors to establish that the cut off of date is arbitrary, has not been pleaded or established by the petitioners. Reliance has also been placed on the judgment rendered by the Supreme Court in the case of Dhananjay Malik and others vs. State of Uttaranchal & others, 2008 4 SCC 171.;