Ramesh Kumar Bansal vs State Of Haryana And Others on 3 December, 2008

Punjab-Haryana High Court

C.W.P No. 20845 of 2006 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 20845 of 2006

Date of decision : December 03, 2008

Ramesh Kumar Bansal,

...... Petitioner

through Mr.Madan Pal, Advocate

State of Haryana and others,

...... Respondents

through Mr.Deepak Jindal, AAG Haryana

for respondents No.1 and 2.

Mr.Gurvinder Singh Bhatti, Adv.

For Mr.Puneet Bali, Advocate

for respondent No.5.

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CORAM : HON'BLE MR.JUSTICE AJAY TEWARI

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1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ? ***

AJAY TEWARI, J (Oral)

This writ petition has been filed challenging the order dated 22.12.2006 (Annexure P-6) whereby respondent No.2 has declined approval to the appointment of the petitioner to the post of Lecturer in Mathematics on the ground that he was over age not only on the date of consideration but also on the date of advertisement.

Learned counsel for the petitioner has relied upon a memo. Dated 6.4.2007 (Annexure P-11), wherein it is mentioned that by instructions dated 16.10.2006, the upper age limit provided in rule 4 of the C.W.P No. 20845 of 2006 ::2:: Haryana Affiliated Colleges (Security of Service) Rules 2006, was relaxed and it was fixed as 40 years for general category candidates. By this memo, the government added a proviso to the following effect :- " Provided that the age limit for teachers working in Education Department shall be forty five years." It is the stand of learned counsel for the petitioner that the petitioner was working in an allied college of respondent No.4 and was, thus, entitled to this relaxation.

Learned counsel for the State of Haryana has two fold arguments. His first argument is that the memo (Annexure P-11) itself clarifies that it would take effect only from the `next phase of filling up of posts'. He has urged that the present selection was carried out in 2006 and, therefore, ex-facie this memo would not apply to that selection. Learned counsel for the State of Haryana has relied upon a decision of the Hon'ble Supreme Court in State of Uttar Pradesh vs Vijay Kumar Misra, 2002(1) RSJ 617, wherein the Hon'ble Supreme Court held as follows :- "7. The position is fairly well settled that when a set of eligibility qualifications are prescribed under the rules and an applicant who does not possess the prescribed qualification for the post at the time of submission of application or by the cut-off date, if any, described under the rules or stated in the advertisement, is not eligible to be considered for such post......"

The second contention of learned counsel for the State of Haryana is that the benefit given by this relaxation is only for teachers working in the Education Department and that on this ground also the C.W.P No. 20845 of 2006 ::3:: petitioner cannot be granted this benefit. I am not impressed with the second argument. In my opinion, the words `Education Department' have not been used specifically to be referred to the Haryana Government Education Department but have been used generically to cover such persons who may be working in educational institutions. Considering this relaxation as a beneficial legislation, it would be appropriate to give it as wide an amplitude so as to give largest benefit of its operation. If it is held that this would apply only to teachers in the Haryana Government Education Department, then this relaxation would be liable to be challenged on the ground of discrimination since there is no reasonable reason why, for instance, a teacher working in an aided school, should not be given age relaxation while a teacher working in a government school should be given age relaxation while being considered for appointment to a private college. However, the first argument of learned counsel for the State of Haryana deserves to be upheld. A perusal of the document, Annexure P-11, itself shows that it is intended to operate only from the `next phase of selection'. It is well established that Courts cannot give retrospective operation to any provision unless either it is specifically mentioned or it can be held that it is a necessary intendment of the same. In view of the above, it is clear that the memo. (Annexure P-11) cannot be intended to operate retrospectively.

Consequently, the writ petition is dismissed. ( AJAY TEWARI )

December 03 , 2008. JUDGE `kk'

C.W.P No. 20845 of 2006 ::4::