Aditya Kumar & Ors. vs State Of U.P.Thru Secy & Ors.
2013 Latest Caselaw 95 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.30
 

 
Civil Misc. Writ Petition No. 10450 of 2013
 
Aditya Kumar and others Vs. The State of U.P. and others
 

 
AND
 

 
Civil Misc. Writ Petition No. 13069 of 2013
 
 Sushil Kumar and others Vs. State of U.P. and others
 

 
AND
 

 
Civil Misc. Writ Petition No. 12980 of 2013
 
Ajay Kumar Rai and others Vs. State of U.P. and others
 

 
AND
 

 
Civil Misc. Writ Petition No. 12995 of 2013
 
Vinod Kumar and others Vs. State of U.P. and others
 

 
AND
 

 
Civil Misc. Writ Petition No. 13728 of 2013
 
Anoop Kumar Srivastava and others Vs. State of U.P. and others
 

 
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Hon'ble A.P. Sahi, J

The common thread of arguments in all these petitions raises a challenge to the fixation of upper age limit of 35 years for engagement as a part-time Instructor in a Scheme floated by the State Government with the financial aid of the Central Government under the Right of Children to Free and Compulsory Education Act, 2009.

The notification advertised on 3.10.2012 for the said purpose only prescribed a minimum age bar of 21 years with a restriction that a retired teacher above the age of 65 years would not be engaged. This Government Order was rescinded and replaced by the Government Order dated 31.1.2013 which introduces the maximum age restriction of 35 years. Clause 4 (i) of the Government Order which is under challenge is quoted herein under:-

^^4¼1½ orZeku 'kSf{kd l= 2012&13 esa vH;FkhZ dh vk;q 01 tqykbZ 2012 dks U;wure 21 o"kZ rFkk 35 o"kZ ls vf/kd ugha gksxhA^^

I have heard Sri Ashok Khare, learned Senior Counsel, Smt. Durga Tewari, Sri Chandan Sharma, Sri Basisht Narain Pandey and Sri J.K. Srivastava, Advocates for the petitioners and Sri Kalpraj Singh, Sri Vipin Pandey and Sri Tomar, learned Standing Counsel for the respondents.

The thrust of the arguments of all the learned counsel is that for the appointment of a teacher in a Primary or a Junior High School on the regular side is not fettered by such maximum age and is also relaxable. Even for engagements under Schemes like that of Instructors, Shiksha Mitra, Prerak or Vocational Teachers, no such upper age limit is provided for. In the present case also the predecessor Government Order dated 3.10.2012 did not place any bar and, therefore, there is no rational basis for now introducing the maximum age of 35 years that eliminates all the petitioners from the zone of consideration.

It is urged that the norms fixed under the Notification dated 3.9.2001 by the NCTE prescribing minimum qualifications, no such restrictions have been imposed and, therefore, the impugned condition has no rational nexus with the object sought to be achieved. It is for this reason that the earlier Government Order dated 3.10.2012 did not place any such restriction.

The petitioners, some of whom hold C.P.Ed. qualifications urge that such certificates were awarded upto 1997 in the State of U.P. and have been given up in other States. Such candidates are obviously above the age bar as they are holders of certificates that were issued long ago. They are very few in number in the entire State and, therefore, they could be possible candidates but for the age bar that has now been introduced. The argument is that the maximum age limit as prescribed is designed to eliminate these candidates and put them out of employment.

It is then urged that the definition of the academic session should not be treated as the year of recruitment as the advertisement itself has been issued after the Government Order dated 31.1.2013. There is, therefore, no rationality in asking for the age limit as on 1.7.2012 as the appointments will be made now in 2013.

Another similarity is sought to be drawn from no such age bar being fixed for appointments in girls institutions under the Kasturba Gandhi Awasiya Balika Vidyalaya Yojna.

Opposing the said arguments, the State contends that fixing the upper age limit is within the executive powers of the State and is in tune with such limitations in all State employment. The competence of the State to do so cannot be doubted. The petitioners have not been able to point out any irrationality in the limit so fixed. A cut-off-date has been provided which also relates to the process of selection for 11 months duration subject to further renewal and it is a rational method of short-listing applications which cannot be said to be arbitrary. The age limit is commensurate to the nature of the job of teaching which is to be performed for the students of a particular age group. Merely because some other age limit or no age limit would be better, cannot be a ground to invoke Article 14 of the Constitution to strike down the maximum age prescribed.

Having heard the respective submissions, the Scheme is for appointment of a short duration of eleven months as a part-time Instructor subject to further renewal. The age limit of 35 years is a criteria that is prescribed for engaging such Instructors. I have not been able to locate any logical reason to reject this fixation. The State has the competence to employ candidates up to a reasonable age. By making such a prescription the State does not become irrational in its approach. If the age was fixed, say upto 45 years, then those above 45 would raise the same argument. This by itself, therefore, cannot be the basis of a challenge to the criteria unless unreasonableness is writ so large, that it may appear to be absurd. The age of 35 years has not in any way been demonstrated to be a wrong or unfit age as the maximum for a part-time Instructor. Even otherwise, it does appear that the Scheme has been introduced as a human resource harnessing measure to provide employment to this middle age group of youth who may be saved from wandering aimlessly for employment. The State is making efforts with central aid to ameliorate this condition and if it has chosen the maximum age limit of 35 years, the same cannot be illogical.

Merely because other engagements in the past did not make such a provision would by itself not be sufficient to treat the fixation to be arbitrary. In the absence of any further material, the power to fix an upper age limit for engagement by the employer is not taken away. The alteration in the conditions between the Government Orders dated 3.10.2012 and 31.1.2013, therefore, does not amount to any act of hostile discrimination so as to accept the arguments of the petitioners. The fixation can also be construed to be in the interest of students to provide energetic and suitably aged Instructors for teaching the category of Primary and Junior classes. There is no irrationality in making such a provision. A little more relaxation would be convenient or alternatively acceptable as a better option is a matter of policy which does not fall within the powers of a court to fix. Since the Scheme has been brought into existence in the 2012-13 session, the cut-off-date has a rational nexus and cannot be discarded on the ground of being implemented later on in 2013. The invitation and sorting of applications that are likely to be huge in number does consume some time and, therefore, a date in relation thereto prior to the advertisement cannot be arbitrary merely because the consequential processing is to be effected later on. The provision of not having an age bar in other schemes or in a girls institution cannot be a comparable argument to declare the upper age limit as arbitrary.

None of the arguments, thus, advanced by the petitioners holds water and the challenge raised lacks merit. The petitions are, accordingly, dismissed with no order as to costs.

Dt. 2.4.2013

Irshad