UPTET : Allahabad Highcourt Judgement About Overage candidate

UPTET : Allahabad Highcourt Judgement, Overage candidate who are eligible in earlier advt but not eligible in new advt due to overage age can apply till 24th Jan 2013.

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HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Court No. - 38
Case :- WRIT - A No. - 65811 of 2012
Petitioner :- Ashish Mishra
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Pankaj Kumar Singh
Connected with
Civil Misc. Writ Petition No.66029 of 2012
Prashant Ranjan Pandey & others Vs. State of U.P. & others.
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Satya Dev Gangwar & another Vs. State of U.P. & others.
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Priyanka Bhashkar & others Vs. State of U.P. & others.
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Shailendra Kumar Suman & another Vs. State of U.P. & others.
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Savita Singh Vs. State of U.P. & others.
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Saket Jain & another Vs. State of U.P. & others.
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Smt. Anju Vs. State of U.P. & others.
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Smt. Sangeeta Devi Vs. State of U.P. & others.
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Km. Jyoti & others Vs. State of U.P. & others.
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Maya Joshi Vs. State of U.P. & others.
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.......................

Hon'ble Arun Tandon, J.
Petitioners before this Court had submitted their applications for the post of Apprentice Teachers in terms of the advertisement published by the State Government dated 30th November, 2011. This advertisement has since been cancelled under order of the State Government dated 31st August, 2012. A fresh advertisement has been published by the State Government for appointment as Trainee Teachers in Parishadiya Vidyalayas on 7th December, 2012 with reference to the Government Order dated 5th December, 2012.
Petitioners stand excluded from the zone of consideration because of having been rendered either underage or overage with reference to the conditions mentioned in advertisement dated 7th December, 2012. The Government Order dated 5th December, 2012 and the advertisement dated 7th December, 2012 provide for the minimum and maximum age in respect of a candidate for being eligible to make an application, as 21 years and 40 years, respectively to be counted on 1st July, 2012. Relaxation in respect of Scheduled Caste and Scheduled Tribe candidates and handicapped category candidates has been provided.
The petitioners seek quashing of the said fixation of age with a direction upon the State Government to consider their applications also.
For appreciating the controversy raised, it is relevant to refer to Rule 6 of the U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as 'Rules 1981'), which provides for the minimum and maximum age of a candidate to be appointed as against the post referred to in Clause (a), Sub-clause (3) and (4); Clause (b) of Rule 5 or proviso to Clause (b) to Rule 5.
Admittedly, the post of Trainee Teachers is not covered by any of the aforesaid clauses. So far as the Trainee Teachers are concerned, Rule 6 last proviso confers a power upon the State Government to determine the upper age limit from time to time. The Rule 6 as amended upto date reads as follows :-
"6. Age.--A candidate for recruitment to any post referred to in clause (a) or sub clauses (iii) and (iv) of, clause (b) of rule 5 or proviso to clause (b) of rule 5, must have attained the age of twenty-one years and must not have attained the age of more than thirty-five years on the first day of July following the year in which the vacancy is notified :

Provided that the upper age limit shall in the case of a candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward Classes be greater by five years or as provided by the Government from time to time :

Provided further that the upper age limit shall in the case of a candidate, who is ex-servicemen, be greater by three years or as provided by the Government from time to time :

Provided also that the upper age limit shall be greater by fifteen years in the case of a handicapped candidate.

Provided also that where after successful completion of a course of training prescribed for teachers of Basic Schools, a candidate could not get appointment due to non-availability of vacancy in the district, the period he has remained unappointed shall not be counted for the calculation of his age if he has not attained the age of more than fifty years on the date of appointment :

Provided also that no upper age limit shall apply in case of B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. trained candidates who have completed special B.T.C. Training courses in the year 1999.

Provided also that in case of candidates having proficiency in Urdu and having completed two years B.T.C. Urdu special B.T.C. training course or completed special BTC training course the upper age limit shall be such as may be determined from time to time by the Government.

Provided also that the upper age limit in case of a Mualim-e-Urdu degree holders who had obtained such degree before August 11, 1997 shall not be exceeding the age of superannuation.

Provided also that for the selection of candidates as Trainee Teachers the upper age limit shall be such as may be determined from time to time by the Government."

On behalf of the petitioners it is contended that under the proviso as noted above, there is no power conferred upon the State Government to fix any minimum age. It has the power to fix the upper age only. It is then contended that fixation of 1st July, 2012 as the date for determining the minimum and outer age limit is arbitrary. Rule 6 main clause may not be strictly applicable to Trainee Teachers but an inference can be drawn therefrom that the age has to be determined with reference to First of July of the following year in which the posts are notified and in the facts of the case it should be 1st July, 2013.
It is then contended that a large number of candidates, who had applied in pursuance of the advertisement dated 30th November, 2011, are now being treated as underage or overage because of the notification issued by the State Government dated 5th December, 2012 and the advertisement dated 7th December, 2012. Such exclusion from the zone consideration of the persons who had submitted their applications earlier in response to the advertisement of the State Government itself, which process has been dropped by the State Government would be too harsh. Hence, this writ petition.
Learned Standing Counsel with reference to the affidavit filed on behalf of the State authorities submits that a conscious decision has been taken in the matter of fixation of age by the State, which cannot be termed as arbitrary. This Court therefore may not interfere.
In my opinion, the fixation of 1st July, 2012 as the date for determining of the minimum and maximum age is contrary to the intention of the rule making authority as contained in the main clause of Rule 6, wherein it has been provided that the minimum and the maximum age limit has to be determined with reference to the 1st day of July of the following year in which the vacancies are notified. Normally, the same principle should have be followed in the matter of appointment of Trainee Teachers.
Learned counsel for the petitioners also appears to be correct in stating that under the proviso to Rule 6 pertaining to Trainee Teachers, the State Government has not been conferred any power to determine the lower age limit, therefore the fixation of 21 years as the minimum age by the State Government in the facts of the case is without authority.
This Court has also to keep in mind that the petitioners had undertaken the TET Examination held in the year 2011, as it was made one of the essential qualifications for appointment as teachers in Parishadiya Vidyalayas. Thereafter an advertisement was published for appointment as Apprentice Teachers on 30th November, 2011 in Parishadiya Vidyalayas, which proceedings were cancelled by the State Government on 31st August, 2012. The petitioners have been litigating since then. It is only today that the Court has upheld the action taken by the State Government of cancelling the process of selection as started under the advertisement dated 30th November, 2011 in a separate petition.
It is within the competence of the State Government to determine the outer age limit under proviso to Rule 6 of ''Rules of 1981'. This power conferred upon the State Government will include the power to relax the outer age in favour of persons, like the petitioners who had submitted their applications under the advertisement dated 30th November, 2011 and who were well within the minimum and maximum age limit fixed in the said advertisement on the relevant date. Ousting of such applicant-petitioners from the zone of consideration under the new advertisement dated 7th December, 2012 would practically jeopardise their entire academic carrier and would be too harsh.
Normally this Court would have asked the State Government to re-visit the matter and to take a more reasonable and fair decision in the matter of fixation of age limits. Such course is not being adopted in the facts of the case, inasmuch as the petitioners-candidates have suffered for long and in my opinion they must be included within the zone of consideration in the matter of appointment as Trainee Teachers as per advertisement dated 7th December, 2012. Accordingly, this Court provides that all such candidates, who had submitted their applications in response to the advertisement dated 30th November, 2011 for various districts, shall be entitled to submit their applications in the same districts for which they had applied earlier along with requisite fee as now prescribed on or before 24th January, 2013. Their applications shall be processed and they shall be included in the matter of consideration for the post of Trainee Teachers.
With the aforesaid direction, these writ petitions stands disposed of finally.
Dated: 16.01.2013.
Rks.


Source : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2316980
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It appears from above judgement, court gave a chance to candidates , who became over age in new advt. but was eligible in earlier advt. can apply till 24th Jan 2013.

Through this, I felt merit list may not come before 24th Jan 2013.