Sindhu Sharma JUDGMENT
Sindhu Sharma, J.
1. Petitioner applied for the posts of Librarian which were notified vide Advertisement Notification No. 18-PSC (DR-P) of 2016 dated 13.12.2016 by respondent No. 2. While notifying these posts, the age limit prescribed in various categories was notified in terms of Cabinet Decision No. 98/07/2014 dated 03.06.2014 and Government Order No. 586-GAD of 2014 dated 03.06.2014. The age of the candidate for the said post as on 01.01.2016 was prescribed as under:-
2. Since in terms of the said notification, the age of the in-service candidates was prescribed as 40 years as the petitioner was over the minimum eligible prescribed age for the said post by two years four months and eight days, as such, his candidature was rejected vide notice dated 05.02.2018 issued by respondent No. 2
3. Aggrieved of his rejection, petitioner approached this Court by way of writ petition bearing SWP No. 69/2017 and this Court vide its order dated 18.01.2017 directed the respondent-Public Service Commission to entertain the application form of the petitioner and allow him to participate in the selection process. This order was however subject to further orders from this Court. Respondents-Public Service Commission, thus, in compliance to the orders of this Court, entertained the application form of the petitioner and allowed him to participate in the interview on 08.03.2018.
4. Petitioner, thus, seeks quashing of notice dated 05.02.2018 to the extent that the petitioner was declared ineligible and over-aged for the post of Librarian in the Higher Education Department. A direction is also sought to respondent Nos. 2 & 3 to consider the petitioner within age limit as on 01.01.2016 in terms of Communication No. HE-Coll/Apptt. Librarian/2016 dated 23.08.2016 within the age for the post advertised pursuant to Advertisement Notification No. 18-PSC (DR-P) of 2016 dated 13.12.2016, notwithstanding 40 years of age mentioned for in-service candidates in Government Service in Clause-2 of Notification dated 13.12.2016 and also for recommending him for appointment.
5. It is submitted that notice dated 05.02.2018 to the extent it declares the petitioner ineligible for selection to the post of Librarian as it is illegal, bad and unconstitutional. Respondents had earlier also issued Notification No. 22-PSC (DR-P) of 2013 dated 16.12.2013 for 42 posts of Librarian and the petitioner had applied for the said posts. These posts were withdrawn vide order No. 143-PSC of 2016 dated 29.09.2016, as the respondent No. 1 had sought withdrawal vide communication dated 02.08.2016. However, subsequently a fresh requisition of 67 posts of Librarian was made and in this regard and notification No. 18-PSC (DR-P) of 2016 dated 13.12.2016 was issued and the petitioner vide order dated 18.01.2017 in SWP No. 69/2017 was allowed to take part in selection process and respondents were directed to entertain his application form.
6. Learned counsel for the petitioner submits that respondent No. 1 vide his communication dated 26.10.2016 had specifically stated that the candidates, who had applied earlier, need not to apply again and their earlier application would be considered valid for the said post, provided otherwise eligible. Since the petitioner had applied in terms of the earlier Advertisement Notification No. 22-PSC (DR-P) of 2013 dated 16.12.2013 but the said posts were withdrawn, therefore, his application was considered for the post of Librarian also. His eligibility, however, in terms of this communication dated 26.10.2016 would remain same.
7. Reliance has also been placed by the petitioner on a communication dated 23.08.2016 issued by respondent No. 1/Higher Education Department to respondents/Public Service Commission, vide which they had requested the respondents/PSC to treat the cut-off date for age criteria in case of candidates, who had applied in response to Notification No. 22-PSC (DR-P) of 2013 dated 16.12.2013 to be treated as 01.01.2013.
8. It is also contended by the petitioner that in terms of the Note contained in Schedule of the Jammu and Kashmir Education Gazetted College Service Recruitment Rules, 2008 (hereinafter referred to as Collage Service Rules, 2008), the upper age limit for appointment in-service candidate would be 45 year as on 1st January of the year of Advertisement. Though the said Schedules were substituted by Schedule I & II vide SRO 124 of 21 April, 2014, the age remained the same.
9. Perusal of the same reveals that though Note appeared in Schedule-II earlier before SRO 124 has not been incorporated in the substituted schedule, therefore, no reliance can be placed on the note. This also finds force from the fact that vide SRO 65, the maximum age limit for entry in Government Service was fixed as 40 years for general category candidate. The petitioner was ineligible on the said date, much reliance is placed on Note 8, which reads as under:-
"Note 8. The increase in the maximum age limit shall not apply to the posts advertised on or after 01.01.2014 but before 3rd of June, 2014 for which the last date fixed by the recruitment agendas has expired."
10. Since the posts were advertised on 13.12.2016, this note would have no application to the said notification as the eligibility of the petitioner is to be seen from the date of notification, as such, this argument also does not have any force.
11. Respondents/Public Service Commission, on the other hand, in their objections have stated that since the petitioner was over-aged by two years four months and eight days, therefore, he was not eligible to be considered for the said post. It is also submitted that in terms of Notification No. 18-PSC (DR-P) of 2016 dated 13.12.2016, age for candidates who were in Government service has been kept 40 years which is in accordance with the existing Recruitment Rules. In reply to the petitioner's contention that the Higher Education Department had sent a communication to treat the age criteria of the candidates, who had applied in response to the notification dated 16.12.2013 as 01.01.2013 and Public Service Commission had clarified vide its letter dated 05.10.2016 that the upper and lower age limit for appointment to the Government service is determined with reference to 1st January of the calendar year in which the posts were advertised, therefore, it would not be tenable to provide for two different cut-off dates for determination of eligibility in terms of the age. It is only thereafter Advertisement Notification No. 18-PSC (DR-P) of 2016 dated 13.12.2016 was issued and in the said notification, the age prescribed for the candidates in Government service was 40 years.
12. Thus, admittedly the petitioner did not have the requisite eligibility to be considered for the post of Librarian as advertised in terms of the Advertisement Notification No. 18-PSC (DR-P) of 2016 dated 13.12.2016. Since the age of the candidate in terms of the said Advertisement Notification was to be considered on 01.01.2016. Since the petitioner was over the cut-off age by more than two years, therefore, he was ineligible to be considered for the said post.
13. It is settled position that for fixing any eligibility criteria, it falls within the exclusive domain of Legislature. It is solely within the jurisdiction of the recruiting authority to prescribe the appropriate qualification/eligibility and to fix the upper age limit or age criteria in the matter of appointment/promotion. Therefore, in terms of the Advertisement Notification, only the candidate, who possessed the maximum and minimum eligibility criteria of age as 01.01.2016, was considered for the said post. Since the respondents/authorities had fixed the cut-off age and the petitioner did not possess the eligibility criteria, therefore, there is no merit in this petition, which is, accordingly, dismissed alongwith connected IA No. 01/2018.
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