Mohd. Hanif vs State Of Jammu & Kashmir And Others

In terms of Advertisement Notice No. 03 of 2006 dated 28.12.2006, the Service Selection Board invited applications for the post of Physical Education Teacher. Subsequently on requisition of the Technical Education Department, Government of J&K, the Services Selection Board again vide Advertisement Notice No. 06 of 2008 dated 28.05.2008 advertised the posts of Physical Education Teacher for all the Districts across the State with the following prescribed qualification:

"Matric with certificate course in Physical Education, Preference being given to those who have a good sports career, OR Graduates with outstanding Sports Career OR with basic course in Skiing and Mountaineering."

and with condition No. VII (g) (2) as under:

"Candidates who have already applied pursuant to advertisement Notice No. 03 of 2006 dated 28,12,2006 for the Post of Physical Education Teacher (PET) District Cadre Posts need not apply again."

There was some ambiguity in the prescribed qualification which was subsequently settled by the Technical Education Department, therefore, vide Notification dated 06.02.2009, the respondents decided to allow all the candidates to again apply and submit their application forms subject to the conditions that they fulfilled all other eligibility qualifications such as Educational and Sports and were also within the prescribed age limit.

Petitioner claims to have applied pursuant to both the Advertisement Notice No. 03 of 2006 and also as per Notification No. 06 of 2008 for the District Cadre, Rajouri. He was selected for the post of the Physical Education Teacher in District Cadre, Anantnag under Scheduled Tribe (ST) Category and his name was figured at serial No. 5 in the provisional select list but he was not selected and recommended for appointment to the said post on the ground that he was overage.

Petitioner submits that he was within the prescribed age as on 01.01.2006 as the date of birth of the petitioner is 15.01.1966, therefore, respondents have arbitrarily and illegally did not recommended his name for appointment to the post of Physical Education Teacher.

Respondent Nos. 4 to 7-Service Selection Board in their objections have categorically stated that the petitioner did not apply pursuant to the Advertisement Notification No. 03 of 2006 dated 28.12.2006. Infact the petitioner only applied in response to the Advertisement Notification No. 06 of 2008 dated 28.05.2008. The petitioner claims to have applied pursuant to two Advertisement Notification Nos. 03 of 2006 dated 28.12.2006 and also in terms of Notification No. 06 of 2008 dated 28.05.2008 for the post of Physical Education Teacher in ST category. The grievance of the petitioner that despite having more meritorious from the last cut off under ST category and his name also figured in the selected list, the respondents have not selected him in the final select list nor recommended his name for appointment as Physical Education Teacher.

Record of SWP No. 1508/2008 was called from the Registry. Perusal of the file reveals the petitioner had in paragraph No. 3 of the petition stated that he had applied in terms of Advertisement Notification No. 06 of 2008 for the post of Physical Education Teacher in District Cadre, Rajouri under ST category and he was not being called for interview because of his over age. It is further reiterated by the petitioner that the respondents were under obligation to conduct his interview as due to their negligence he has become over age and to lost the opportunity to participate in the selection process. The respondents vide order dated 04.11.2008 was directed to interview the petitioner. The relevant portion of the order is reproduced as under:

"In the meanwhile, respondent Nos. 4 to 7 are directed to interview the petitioner against the posts of Physical Education Teacher notified for selection vide Advertisement Notice No. 06 of 2008 dated 28.05.2008. The result of the petitioner's consideration shall, however, be kept in a sealed cover until further orders from this court."

There is not even whisper in this petition that the petitioner has applied in pursuant to Advertisement Notification No. 03 of 2006 dated 28.12.2006. The petitioner in the instant petition vide order dated 05.05.2018 had produced a copy of the receipt which is suggestive of the fact that the petitioner has applied for the post of Physical Education Teacher against Advertisement Notification No. 03 of 2006 dated 28.12.2006. This Court had handed over the receipt to the Deputy Advocate General appearing on behalf of the respondent-Board to verify from the record about the authenticity of the receipt produced by the petitioner in support of his claim that he had applied for the post of Physical Education Teacher pursuant to Advertisement Notification No. 03 of 2006 dated 28.12.2006. The respondent-Board in compliance to the directions of this Court have filed the affidavit in which it has been stated by them in paragraph No. 2, which is reproduced as under:

"2. That as checked and verified from the data base of the item No. 19 of the advertisement notification No. 03 of 2006, the petitioner has not applied against the said notification, as such, the contentions of the petitioner on this count are vehemently denied."

Thus, from the affidavit of the respondent-Board it is clear that the petitioner had only applied to the Advertisement Notification No. 06 of 2008 dated 28.05.2018 and it is only against this Notification, petitioner had more meritorious from the last cut off under ST category but could not be selected and appointed.

Heard learned counsel for the parties. Since the controversy is with regard to the basic eligibility of the petitioner, it is relevant to note in terms of Advertisement Notice No. 06 of 2008 dated 28.05.2008 as under:

"Application for the post shown against Item No's and Annexures I to XXI his notification are invited for District Cadre Posts from the candidates who-

(A) are permanent resident of Jammu and Kashmir

(B) on 01.01.2008 are not:-

(i) below the age of 18 years

(ii) above the age of:

(a) 37 years in case of Open Merit candidates

(b) 40 years in case of RBA/ALC/OSC/SC/ST candidates

(c) 39 years in case of Physically challenged candidates

(d) 48 years in case of Ex-Servicemen

(e) 40  years  in  case  of  candidates  already  in  Government

Services/contractual employees......."

Thus, the relevant cut off age of consideration of the petitioner in terms of Advertisement Notice, the basic eligibility of the petitioner as on 01.01.2008 was 40 years as the petitioner belongs to the ST category, the petitioner as admitted has stated that his date of birth is 15.01.1966, therefore, the petitioner was more than 40 years as on 01.01.2008 hence admittedly he was overage. Thus, the contention of the petitioner that he has within the prescribed age limit as on 01.01.2006 as his date of birth is 15.01.1966 is irrelevant since the petitioner has never applied pursuant to Advertisement Notification No. 03 of 2006 and his age is to be seen in terms of the Notification No. 06 of 2008 as 01.01.2008, he would not be considered.

In terms of Article 37 of the the Jammu and Kashmir Civil Services Regulations, which provides for minimum and maximum age limits for the purpose of recruitment to State Services, the cut off for determination of basic eligibility in respect of the age would be the first of January of the year in which Advertisement Notification inviting application for the posts is issued. Petitioner though figured in the provisional select list as Physical Education Teacher but he could not be appointed in view of the fact that he did not possess the basic eligibility. It is stated also that the petitioner was interviewed only in compliance to the order of this Court in SWP No. 1508/2008. Another contention which has been raised by the petitioner that one candidate, Mohd. Ishaq S/o. Sh. Mishri who was placed in the Provisional Select List under ST category for the said post of Physical Education Teacher in District Cadre Rajouri was also selected is similar to the petitioner. This contention has been denied by the respondents by stating that during the process of finalization of the select list it transpired that no post was advertized vide Advertisement Notification No. 03 of 2006 under ST category in District, Rajouri and also the said candidate could not be considered against any of the post advertised vide Advertisement Notice No. 06 of 2008 because he was over aged as on 01.01.2008.

In view of the aforesaid, the petitioner lacking the basic eligibility in terms of the Advertisement Notification No. 06 of 2008 and could not be selected for the post of Physical Education Teacher, therefore, this petition is without any merit and is, accordingly, dismissed.