INDERJIT SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) An interesting issue has been raised in this petition relating to age bar and age limit fixed for appointment of teachers in the Education Department, Haryana. The petitioner was an applicant for the post of Lecturer in English (College Cadre) issued vide advertisement No. 7 of 2009, the closing date of which for receiving applications was 27.11.2009. Paragraph 5 of the advertisement fixed the age limit between 21 to 40 years as on 15.10.1999. However, for the teachers already working in the Education Department, Haryana, the limit was extended to 45 years. Relaxation in age limit to SC/BC candidates of Haryana is only as per existing instructions of Haryana Government with which we are not concerned. Paragraph 5(ii) prescribes that the upper age limit is also relaxable for a military person whether he joined military service before or after the declaration of emergency to the extent of his military service added by 3 years provided he had rendered continuous military service for a period of not less than six months before his release and it was further provided that such person had been released other than by way of dismissal or discharge on account of misconduct or inefficiency. The petitioner was born on 2.3.1960 and his age has to be determined on 15.10.2009 to work out his eligibility. The petitioner had served in the Indian Army from 18.6.1983 to 24.6.1987 after rendering 4 years and 6 days service. Indisputably, the age of the petitioner on 15.10.2009 was 49 years 7 months and 13 days. His candidature for the advertised post has been rejected for reason of being overage. Mr. Malik, learned Senior Counsel argues that the petitioner was entitled to relaxation of 7 years and 6 days by taking into account the period of service rendered in the Army. Calculated in this manner, after relaxation, the age of the petitioner comes to 42 years 7 months and 7 days while the maximum age for the teachers working in the Education Department was fixed at 45 years. So, the petitioner was duly eligible and he was interviewed by the Commission and the result was declared and the petitioner was selected at Merit No. 1 amongst the three posts meant for Ex-Servicemen/Dependent Ex-Servicemen category. Since paragraph 5(ii) gives an additional benefit of 3 years to ESM, therefore, the petitioner would be deemed to have qualifying service of 3 years added to 4 years and 6 days making the total 7 years and 6 days. This reduction has to be factored from the stand point of the cut off date i.e. 15.10.2009. By reducing 7 years and 6 months, the petitioner would be deemed to be 42 years 7 months and 7 days on the cut off date and therefore, the Commission was not right in not recommending his name to the Government for appointment although he had secured merit position No. 1 competing in his horizontally reserved category.

(2.) In response to the writ petition, on issuance of notice of motion, both State and Commission have filed their respective replies. The stand of the State is that two categories cannot be clubbed together for the purpose of reckoning eligibility in terms of age. It is stated that the petitioner cannot derive benefit as an ESM plus teacher working in the Education Department for working out relaxation in age for appointment. It is contended that if the case of the petitioner is to be accepted, then the upper age limit will be stretched to such a 'pathetic limit that the entire objective of upper age limit and recruitment shall be defeated' because the period of service to be rendered in a Department may be reduced to less than few months. The reply is interesting so is the defence of the Haryana Public Service Commission that made the selection. The Commission submits that since the petitioner was 49 years 7 months on 15.10.2009, he was not entitled to be considered for the post. It is submitted that for relaxation in upper age limit for military service, the counting is to be done from the upper age limit namely 40 years as on 15.10.2009 upward and not on the relaxed age of 45 years available to the in service teachers working in the Education Department, Haryana. It is submitted that acting in good faith while scrutinizing the eligibility of the petitioner, the Commission made a bona fide mistake granting the benefit of relaxation of age to the petitioner on the relaxed age of 45 years. On discovery of this fact, the mistake was found and corrected and consequently the petitioner's name was not recommended nor was he entitled to appointment as of right. The Commission admits that the petitioner being an ESM is eligible to get age relaxation of 7 years 6 days on the upper age limit counted from 40 years and not 45 years. This appears to be a conundrum, a jugglery in mathematics.

(3.) The only issue which arises for consideration thus is as to the point from which 7 years and 6 days has to be counted. There is nothing in the advertisement which provides the key to the answer of the question raised which has now to be judicially decided. A relaxation is to be viewed as a concession granted which enures to the benefit of the person in case of serious doubt otherwise strict construction deserves to be adopted so as not to confer undue benefit. It appears to me more logical to accept Mr. Malik's method than the method advanced by the State and the Commission through their respective counsel. I do not find any accurate legal principle of universal application not to give advantage to the petitioner for his service in the Indian Army and for his services rendered as a teacher in the Haryana Education Department. The petitioner is an ESM candidate who is teaching in the school with effect from 12.9.1996.