IMPORTANT POINT
When no cut off date is fixed in service rules for fulfilling the prescribed qualification then such date shall be as appointed for the purpose in the advertisement calling for application and if there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.

Headnote:Service Law-Recruitments as teachers-Legality of-Age criteria-Appointment of 2000 persons as primary teachers in State of Bihar-Legality challenged-Termination of services of teachers including appellants as they were illegally recruited-Fresh appointments by inviting applications from writ petitioners as well as other persons who had been removed-It was observed that if they had become over age during period of their service, it was not to be taken note of-No matter whether appellants were overage at time of their initial appointment-No definite material as to what was the eligibility criteria so far as age is concerned-Principles to be followed-Directions given for consideration of age aspect.
       Held : It is true that there was concession before the High Court that they were over age on the date of initial appointment. But there was no concession that they were over age at the time of making the application. There was no definite material before the High Court as to what was the eligibility criteria so far as age is concerned. No definite material was placed before the High Court and also before this Court to give a definite finding on that aspect. What happens when a cut off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non-prescription has been considered by this Court in several cases. The principles culled out from the decisions of this Court (See Ashok Kumar Sharma and Ors. v. Chander Shekhar & Anr. (1997(4) SCC 18, Bhupinderpal Singh v. State of Punjab (2000(5) SCC 262 and Jasbir Rani & Ors. v. State of Punjab & Anr. (2002(1) SCC 124) are as follows:
        (1) The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules;
        (2) If there is no cut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications; and
        (3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.
       It has, therefore, to be decided by the authorities as to which of the three conditions indicated above were applicable to the facts of the case. In the absence of definite material, we think it appropriate to direct the authorities to take a decision within a period of four months from today, as to whether the appellants or one of them was eligible by applying the tests indicated above. These directions shall apply to the writ petitioners who are appellants in the present appeal and to nobody else. (Paras 5 and 6)

JUDGMENT

Arijit Pasayat, J.-This is the second journey of the parties to this Court. The basic issue is whether the appellants herein were legally recruited as teachers during the period from 1981 to 1983.

2. These two appeals are directed against two judgments of the High Court of Patna. While C.A.No. 916/1999 is directed against the judgment dismissing the writ petition filed by 55 persons including the appellants, C.A.No. 1524/1999 is directed against the judgment in Letters Patent Appeal whereby the order of the learned Single Judge was affirmed. The writ petition was filed by the present appellants.

3. Factual background so far as undisputed is essentially as follows :

About 2000 persons were appointed as primary teachers in various districts of Bihar. As legality of the appointments was questioned in various forums, enquiries were conducted. Orders were passed terminating the services of the teachers including the appellants who had been appointed during the relevant period. Such orders of termination were challenged before the High Court, which by judgment dated 11.8.1989 directed to take up the appointment of teachers in elementary schools in various districts by inviting applications from the writ petitioners as well as other persons who had been removed because they were illegally recruited by the District Superintendent of Education. It was inter alia observed that if they had become over age during the period of their service on stipend and removal, the same was not to be taken note of. The relevant portion of the judgment which has great relevance so far as the present dispute is concerned reads as follows :

"On the facts of this case, we observe that persons who are qualified for appointments deserve a consideration and appointment, accordingly on such posts for which they are qualified in preference to other candidates who may be qualified. We, accordingly, direct the respondents to proceed to take up the appointments of the teachers in the Elementary Schools on Santhal Pargana and Deoghar by inviting applications from the petitioners and other persons who have been removed because they were illegally recruited by the District Superintendent of Education and select if they satisfy the eligibility conditions and appoint them. In doing so the respondent State must relax the age limit in case of any of the petitioners are found to have become over age during the period of service on stipend and removed. The petitioners and/or any other candidate who may be appointed in the vacancy so created on account of removal of the petitioners and other persons appointed by the District Superintendent of Education shall however not claim any benefit of the appointment illegally given to them by the District Superintendent of Education but shall receive emoluments and other benefits by dint of their selection and appointment in accordance with law."

4. Said judgment of the High Court and connected judgments were assailed before this Court in several special leave to appeal petitions. By order dated 7.2.1991, they were disposed of inter alia with the following directions:

"In these circumstances in tead of taking into account the contradictory conclusions reached in these cases we have heard counsel for the parties. We notice that the High Court s direction to the State to hold afresh selection has become final against the State inasmuch as the State has not challenged the order. We direct that within three months and in any case not beyond 30th June, 1991, the selection process contemplated in the High Court s order shall be worked out. In considering the suitability for selection the Rules which were in force at the time the teachers were recruited should be taken into account and disqualification shall not be imposed on the basis of any altered Rules. It will also be open to the State to consider the claim of teachers who came after the altered Rules in terms of the Rules in force. The bar of age, we re-iterate the direction of the

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2003 Supreme(SC) 473

Cases Referred (6)