Service Law – Appointment of Lecturer – Applicability of Rules – Assam Govt. Aided Junior College Management Rules, 2001 vis-à-vis Assam Secondary Education (Provincialisation) Service Rules, 2003 – Age limit – Condone of overage.
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Advertisement dated 28.02.2006 for post of Lecturer in History in Respondent No.3 – an aided institution – issued under the 2001 Rules which did not prescribe any upper age limit.
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Appellant stood first in merit; Governing Body recommended her name and Government, by communication dated 13.10.2006, condoned overage of 2 years 7 months and approved appointment (22.03.2007). Appellant continuously served as Lecturer for 18 years.
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Respondent No.5 (unsuccessful candidate) challenged condonation and appointment on ground of violation of Rule 19(iv), 2003 Rules prescribing maximum age of 36 years.
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Single Judge of Gauhati High Court (30.03.2010) dismissed writ petition holding 2003 Rules inapplicable to aided junior colleges; selection governed by 2001 Rules.
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Division Bench (24.02.2012) allowed appeal relying on Rule 19(iv), 2003 Rules and Shankar K. Mandal v. State of Bihar, holding Appellant overaged and ineligible; condonation could not retrospectively validate candidature.
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Supreme Court (per S.V.N. Bhatti, J.) held:
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Advertisement was under 2001 Rules; Appellant validly selected and appointed.
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Application of 2003 Rules to aided institution at pre-provincialisation stage was illegal and without jurisdiction.
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Condonation of age by Government was valid; Appellant cannot be denied benefit after 18 years of service.
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Orders of Division Bench (24.02.2012) and Review (24.05.2023) set aside.
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Appellant to be reinstated within 4 weeks; continuity of service to be granted for all purposes but no back wages.
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Services of Respondent No.5, already working as Lecturer, not to be disturbed.
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Held: Appointment of Appellant governed by 2001 Rules, not 2003 Rules. High Court erred in applying Rule 19(iv) of 2003 Rules. Appellant entitled to reinstatement with continuity of service (but without back wages).
2025 INSC 1156
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 011777 - 011778 OF 2025
[@ SLP (C) NOS. 13145 -13146 OF 2025]
JYOTSNA DEVI … APPELLANT(S)
VERSUS
THE STATE OF ASSAM & ORS. … RESPONDENT(S)
J U D G M E N T
S.V.N. BHATTI, J.
1. We have heard learned counsel, Mr. Rituraj Biswas and Mr. Chinmoy
Pradip Sharma, Sr. AAG. Respondent No.5, despite the service of notice of the
pending proceedings, is not represented.
2. The Appellant assails the order dated 24.05.2023, in Review Petition
No. 175 of 2017, and the order dated 24.02.2012 in Writ Appeal No. 262 of
2011 in the Gauhati High Court at Gauhati. The journey of the litigation dates
back to the advertisement dated 28.02.2006, issued by Respondent No. 3 to
fill a vacant post of Lecturer in History. The Appellant and Respondent No. 5
have participated in the selection process, and by the resolution dated
24.07.2006, the Governing Body of Respondent No. 3 - College, having noticed
the relatively better merit and suitability of the Appellant, resolved to select
the Appellant. On the even date, the Governing Body forwarded the resolution
to Respondent No.1/Government for approval. At this juncture, we notice the
undisputed facts that the Respondent No. 3 is an aided institution as on the
date of selection process. Therefore, the selection process was set in motion
by referring to the Assam Government Aided Junior College Management
Rules, 2001 (for short “2001 Rules”). The advertisement does not stipulate an
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upper or lower age limit as a qualification or disqualification, as the case may
be, for applying for the post of Lecturer in History. The Respondent No. 1, on
the request of Respondent No. 3, vide communication dated 13.10.2006,
exercising its jurisdiction/discretion, communicated to Respondent No. 3,
condoning the alleged overage of 2 years 7 months of the Appellant. On
22.03.2007, the Respondent No. 2 approved the appointment of the Appellant
as a Lecturer. The Appellant entered service of Lecturer in Respondent No. 3-
College. Respondents Nos. 1 and 2 admit that the Appellant has put in a
continuous service of 18 years as Lecturer in History in Respondent No. 3 -
College. Respondent No. 5 filed a Writ Petition No. 1707 of 2007 challenging
the order of approval dated 13.10.2006, condoning the over-age of 2 years 7
months and the order dated 22.03.2007 approving the Appellant’s
appointment. The case of Respondent No. 5, briefly stated, is that the
Appellant was aged 39 years at the time of advertisement or during
appointment to the post of Lecturer. The advertisement is issued referring to
the 2001 Rules. However, according to the Assam Secondary Education
(Provincialisation) Service Rules, 2003 (for short “2003 Rules”), the prescribed
age limit for a candidate being recruited is between twenty-one to thirty-six
years. The order condoning the over-age is illegal and contrary to the 2003
Rules. The case of Respondent Nos. 1 to 3 was that the 2003 Rules, at the
time of issuance of the advertisement, had no application to College of
Respondent No.3, and that the advertisement was issued referring to the 2001
Rules. There is a difference between an appointment in an aided institution
and in a Government College. In the absence of a provision stipulating which
one of the enactments is applicable, viz., Assam Higher Secondary Education
Act, 1984 or The Assam Secondary Education (Provincialisation) Act, 1977,
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the discretion exercised by the Respondent No. 1 in abundant caution does
not give a cause to a candidate at serial no. 2 to challenge the appointment of
Appellant who stood at serial no.1. The Learned Single Judge on 30.03.2010
dismissed the Writ Petition. A few of the findings recorded by the order dated
30.03.2010 are very apt for understanding the fact in issue, and read as
follows:
“13. As could be gathered from the affidavits filed by the
respondents, the respondent No.5 was appointed under the
provisions of the Assam Govt. Aided Junior College Management
Rules, 2001. Apparently, it is not clear whether 2001 Rules have
been framed either under the 1984 Act or under 1977 Act. Be that
as it may, 2001 Rules have been framed especially for governing
the management and control of colleges, imparting education in
plus two stage. Hence, it has to be inferred that selection of
respondent no.5 is governed by these Rules.
14. It is true that Repeal and Savings provision under Rule 32 in
2003 Rules it has been clarified that all Rules, corresponding to
these Rules in force immediately before commencement of these
Rules shall stand repealed. However, the Rules are applicable only
for Provincialisation Act, 1977 and not for 1984 Act. In my
considered, opinion, both 1977 Act and 1984 Act operate in
different fields. The basic object to enact the 1977 Act is for
Provincialisation of secondary education, whereas, 1984 Act has
been enacted to regulate, supervise and develop the higher
secondary education in the State of Assam. Hence, I am of the
considered opinion that conditions incorporated in 2003 Rules,
with regard to appointment and service conditions of persons
appointed in Higher Secondary Schools cannot be made
applicable to the staff appointed by the Governing Bodies of
Junior Colleges. Even otherwise, the admitted position is that the
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respondent No.5 has been appointed adhering to the provisions of
Govt Aided Junior College Rules, 2001 and not 2003 Rules.”
3. The Respondent No. 5 filed Writ Appeal No. 262 of 2011. The Division
Bench, vide impugned order dated 24.02.2012, allowed the Writ Appeal. The
order dated 24.02.2012 notices that the 2001 Rules do not provide for any
age limit, but Rule 19(iv) of the 2003 Rules has to be applied together with
the decision in Shankar K Mandal & Ors. v. State of Bihar & Ors.1. The
following finding has been recorded:
“Judged by the parameters as above, It is apparent that both on
the date of the advertisement as well as on the last date for
submission of applications by the willing candidates, the
respondent No.5 was beyond the age of 37 years prescribed for
entry into Government service. In the teeth of Rule 19(iv) of the
Rules, in our estimate, she was over aged at all relevant times
and, thus, was not eligible to participate in the selection process.
As admittedly the condonation of her overage was much
subsequent to the completion of the selection process, the same
could not have legalised her candidature with retrospective effect.
We are in respectful agreement with the view taken in Mahesh
Gogoi (supra).”
4. The Appellant challenged the order dated 24.02.2012 in S.L.P. No.
16230 of 2012 before this Court, and on 28.08.2017, while granting liberty to
the Appellant to file a review, the SLP was dismissed. This resulted in the
filing of Review Petition No. 175 of 2017 before the High Court. The review
order was passed without appreciating which one of the enactments is
applicable. Again, by relying on Rule 19 (iv) of the 2003 Rules, the review was
1 (2003) 9 SCC 519.
5
dismissed. The order of this Court dated 28.08.2017, since granted liberty to
assail the orders, the present Civil Appeal is maintained.
5. Mr Rituraj Biswas argues that the impugned orders are entirely silent
on the applicability of the Rule to the subject selection by an aided institution.
Respondent No. 3 was provincialised subsequently in point of time, and the
advertisement was issued before provincialization. Applying the 2001 Rules
for the subject selection would be proper and legal. The Appellant participated
in the selection process with reference to the 2001 Rules. The Appellant is the
meritorious candidate, and the step taken in abundant caution should not be
put against the Appellant. The Respondent No. 5 is accommodated as Lecturer
subsequent in point of time, and the continuation of the appellant in the post
already she has been working, is neither illegal nor arbitrary. Lastly, it is
argued that applying Rules made under Article 309 of the Constitution of
India to an aided post in the absence of applicable Rules amounts to an illegal
exercise of jurisdiction by the High Court. Mr. Chinmoy Pradip Sharma, Sr.
AAG appearing for Respondent Nos. 1 and 2, does not dispute the
appointment of Respondent No. 5 and continuing as on date as well as the
subsequent provincialisation of Respondent No. 3–College to the
advertisement issued for an aided post in the institution. The learned counsel
for Respondent Nos. 1 and 2, however, would argue that the appellant has
rendered service for a considerable time, and the appointment may be
confirmed without laying down the principle applicable on the method and
mode of recruitment in aided colleges.
6. We appreciate the circumstances which are undisputed and express
our view on the issue at hand. The advertisement is clear that the selection
process is set in motion as per the 2001 Rules. The Appellant stood at serial
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no. 1 in the merit list. The Governing Body resolved the appellant’s case for
approval and appointment. The Government, referring to the extant Rules,
condoned the overage for applying to an aided post in an aided institution. In
the absence of the advertisement or the spelling out of applicable Rules,
applying Rule 19(iv) of the 2003 Rules, to set aside the approval and
appointment of the appellant, in the circumstances of this case, is illegal.
Consequently, the orders dated 24.02.2012 and 24.05.2023 are set aside, and
we are in agreement with the view expressed by the learned Single Judge.
7. The Respondent No. 5, since is admittedly working as a Lecturer under
the administrative control of Respondent Nos. 1 and 2, it is made clear that
the services of the Respondent No. 5 shall not be interfered with,
notwithstanding the view taken by us in this order. The Appellant has
discontinued after dismissal of the Review Petition, and therefore, we direct
Respondent Nos. 1 to 4 to reinstate the Appellant within 4 weeks from today,
and the respondents shall not treat the break in service between the date of
termination and reinstatement pursuant to this order. The appellant shall be
given continuity of services for all purposes, without any back wages. For the
reasons stated above, in the peculiar facts of the case, the civil appeals are
allowed.
8. Pending applications, if any, shall stand disposed of.
………..……….…………………J.
[AHSANUDDIN AMANULLAH]
.………..…………………………J.
[S.V.N. BHATTI]
New Delhi;
September 25, 2025.
