Sarita Tiwari vs State Of Uttarakhand And Others
2021 Latest Caselaw 5099 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL
              Writ Petition (S/S) No. 1583 of 2021
Sarita Tiwari                                            ...      Petitioner
                              Vs.
State of Uttarakhand and Others                          ... Respondents
Advocates :    Mr. S.S. Yadav, Advocate, for the petitioner
               Mrs. Anjali Bhargava, Addl. CSC, for the State
               Mr. Shubhang Dobahl, Advocate, for the respondents

Hon'ble Sharad Kumar Sharma, J.

The Uttarakhand School Education Act was notified to be made applicable in the State of Uttarakhand w.e.f. 1st January 2007. It also specifically dealt with the provisions for the purposes of recognising the Secondary Education and laying down the modalities of its Management, Regulation and Appointment on the various cadre of sanctioned posts to the aided and unaided Institutions and to the Institutions, which are run and managed by the Government. Particularly, the internal activities and administration of the aided Institution, may it be having a status of that being a Minority Institution, which has granted a special status under Article 30 of the Constitution of India, but still the modalities for appointment, recognition, for its internal administration, conduct of examination, are the aspects, which have been provided under Section 24 of the Act, which would be exclusively governed by the Regulations framed under the said Act.

2. While exercising the powers under Section 24 of the UK School Education Act, 2006, the State of Uttarakhand had notified the Uttarakhand School Education Regulations, which deals with as per its Appendix 1, the qualification criteria, which a candidate is mandatorily supposed to possess, for the purpose of his or her consideration for recruitment in the Institutions,

which stand recognised under the Uttaranchal School Education Act and the Regulations framed there under. The applicability of the regulations doesn't carve out within it any exclusion of the same for not being applicable to the Institutions, which enjoys a minority status under Article 30 of the Constitution of India. Meaning thereby, once the regulation it has a self-contained provisions formulated under Section 24 of the Act, is a statutory blend, and it would obviously governed the qualification criteria and the eligibility of a candidate too, who are supposed to be recruited in a recognised or an aided Institutions under the Act.

3. The brief facts of the case are, that respondent No. 4 herein, on 16th April 2021, had issued an advertisement, inviting the applications from the probable candidates to be considered for the purposes of appointment as Lecturer (English) in the Institution of respondent No. 4, which claim itself to be a minority Institution and having a protection of law in the field of recruitment also and according to the contention of the learned counsel for the petitioner, it could be extended even pertaining to the modalities of the eligibility criteria, which is inclusive of the age parameters also and hence it is contended by the learned counsel for the petitioner that in the absence of there being any observations made to the contrary in the advertisement dated 16th April 2021, since there was no observation made pertaining to providing the upper age limit in the advertisement, it would lead to an inference, as if the advertisement had permitted even the candidates to extend their candidatures to be considered for recruitment; irrespective of the bar of age, as provided by the Regulations framed under Section 24 of the Uttaranchal School Education Act.

4. The learned counsel for the petitioner contends, that in the absence of there being any cut off age provided in the advertisement, the petitioner cannot to be held to be non-suited to be considered for appointment as a Lecturer (English) on the ground that her candidature was barred by age.

5. It is further not disputed by the learned counsel for the petitioner, that the state amended legislation providing for the Regulations of 2014, i.e. UK Age Relaxation Rules of 2004, for the purpose of grant of relaxation in age, for recruitment in the government service, would not be applicable to the teachers, who are to be appointed exclusively under the Regulations, because under the savings clause of the Act itself or under any of the provisions contained and provided under the Regulation, the savings clause do not protect the applicability of the General Rules of eligibility, as made applicable to the government servant recruitment processes. Hence, even the provision of age relaxation contemplated under the Rules, or the determination of the age, according to the Rules of 2004, would not be a percept, which could be made applicable for the purposes of governing the recruitment process of the Lecturers (English), even in the minority Institutions, particularly, when the field of its eligibility criteria is governed by the self-contained provisions of the Uttaranchal School Education Act and the Regulations framed there under.

6. It has been argued by the learned counsel for the petitioner, that the Act of 2006, and the Regulations framed there under Section 24 of the Act, including the advertisement since it does not provide any provision of maximum age limit, for a probable aspiring candidate to be made eligible to apply for the post advertised, it would be presumed, that as if there is no cut off

upper age limit, which has been provided and hence the petitioner would be an eligible candidate to be considered for recruitment.

7. The contention of the learned counsel for the petitioner, is that in the absence of there being any pre contained condition in the advertisement, providing the upper age limit, I am of the view that it cannot be preposterously construed in a manner as if irrespective of the age, any person de-horse to his or her age could still be made eligible, to be considered for recruitment under the advertisement dated 16th April 2021.

8. Court is of the opinion that there has to be a rationale applicability of the principles of the cut off age, provided under Regulations for recruitment in the educational institutions and even in the absence of there being any exception clause provided under the regulations framed under the Act, to the minority Institutions, the cut off age or the maximum upper age limit of a candidate, as applicable to the other Institutions, would equally apply to the minority Institutions also, and the protection granted under Article 30 of the Constitution of India, cannot be made attracted, to be stretched, in order to protect a candidate to make him or her eligible under the exception clause, because still and always the service conditions and the process of recruitments are to be governed by the Regulations framed under the Act to avoid arbitrariness and protect the purpose of Article 16 of the Constitution of India.

9. The farfetched extension of an application of the provisions under Article 30 of the Constitution of India, and the protection granted by it, by drawing its implications from the various judgements, which had been relied by the learned counsel for the petitioner, particularly, the reference of which, has been made to,

one of the judgements, which had been rendered by the Hon'ble Apex Court in Writ Petition No. 416 of 2012, Pramati Educational and Cultural Trust and others Vs. Union of India. In fact, if the entire analogy, which has been dealt with by the Hon'ble Apex Court, in the said judgement is taken into consideration, the context and the issue involved in the present case, in fact, it is not even marginally considering or laying down any principles in relation to dealing with the aspect of the relaxation of age of a candidate to be considered for recruitment in a minority institutions.

10. In fact, the said judgement, referred to, which rather postulates a regulatory power with regard to governing the administration of an aided or unaided institution, since it relates to the State of Rajasthan, will have no applicability in the State of Uttarakhand, for the reason being that under Schedule 7, education has been made as a State subject and the principles of law, laid down therein, which has been sought to be attracted, particularly, the reference, as it has been made to para 46, since it is in context of Section 12(1)(c) and Section 2(n)(iv) as applicable to the unaided Institutions of the State of Rajasthan, which was ultimately declared as to be ultra virus, has got no nexus to the subject involved for consideration in the present case. It was an adjudication made pertaining to a different issue in relation to the minority Institution. Relevant para 46 of the Pramati Educational and Cultural Trust (Supra) is extracted hereunder:-

"46. When we look at the 2009 Act, we find that Section 12(1)(b) read with Section 2(n) (iii) provides that an aided school receiving aid and grants, whole or part, of its expenses from the appropriate Government or the local authority has to provide free and compulsory education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent. Thus, a minority aided school is put under a legal obligation to provide free and compulsory elementary education to children who need not be children of members of the minority community which has established the school. We also find that

under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has to admit into twenty-five per cent of the strength of class I children belonging to weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools will have a legal obligation to admit children belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of the members of the minority community which has established the school. While discussing the validity of clause (5) of Article 15 of the Constitution, we have held that members of communities other than the minority community which has established the school cannot be forced upon a minority institution because that may destroy the minority character of the school. In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (supra) insofar as it holds that the 2009 Act is applicable to aided minority schools is not correct."

11. Another judgement, on which the reliance has been placed by the learned counsel for the petitioner, is that as rendered by the Division Bench of the Madras High Court in the case of A. Firdose Begum Vs. The Secretary to Government which was rendered on 22.09.2016. In fact, if the subject, which was under consideration before the Hon'ble Madras High Court, is taken into consideration, in fact, it was dealing with an issue, where by virtue of an interim direction of the learned Single Judge, the educational authorities, their rights and authority qua the grant of temporary approval for the teachers to be employed or it was for the purposes of admission of the students, which was still altogether a different subject, which was in a relation to the law, as applicable, in the State of Tamil Nadu.

"37. Strong reliance was placed on behalf of the writ petitioners on the decision of the Apex Court in Pramati Educational and Cultural Trust v. Union of India [(2014) 4 MLJ 486]. The relevant portions read as follows:

5. Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice and this Court has repeatedly held that the State has no power to interfere with the administration of minority institutions and can make only regulatory measures and has no power to force

admission of students from amongst non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions. Moreover, in Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. (supra) Sikri, CJ., has even gone to the extent of saying that Parliament cannot in exercise of its amending power abrogate the rights of minorities. To quote the observations of Sikri, CJ. in Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. (supra):

12. I am of the view, that when the learned counsel for the petitioner, when he makes reference to the regulatory powers of the State, yet again, it has got no nexus and particularly, when he makes reference to para 37 sub para (5), where the implications of Article 30(1) of the Constitution of India, which relates to and is pertaining to the establishment, administration of an educational institution of their choice, which was vested with the minorities based on their linguistic or regional distinctions, which was under consideration, wherein it has been held that the State could still exercise a regulatory measures for the purposes of enforcing the prospects of admission of students from amongst the non minority communities. This judgement has got no relation, considering the aspects, as to whether at all a candidate, who otherwise is age barred to be considered for recruitment as a lecturer in a minority Institution, could still be considered for recruitment based on the principles laid down under the aforesaid two judgements.

13. The learned counsel for the petitioner submitted that the Act or the Regulation framed, and as made applicable in the State of Uttarakhand for the purposes of recruitments to be made in the minority Institutions since it is not carving out any exception, the age would not create a bar.

14. This Court is of the view, that exception to an applicability of an age bar provided under the Regulations, could only be by way of a specific incorporation by way of legislation and not otherwise, as it has been construed by the learned counsel for the petitioner. Since the provisions contained under the regulations do not create any specific bar of an applicability of the provisions of cut-off age provided therein, it would be deemed that the age prescribed therein, would also be equally made applicable to the minority institutions. Hence, for the aforesaid reasons, I am not inclined to interfere in the writ petition; the writ petition is accordingly dismissed.

(Sharad Kumar Sharma, J.) 14.12.2021 Mahinder/