# Aditya Kumar and others v. The State of U.P. and othersRespondents

- **Citation:** (2013) 2 ILRA 650
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-02
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aditya-kumar-and-others-v-the-state-of-u-p-and-othersrespondents-42614
- **Pages:** 4

## Headnote

Constitution of India, Art.-14-Right of
Children
to
Free
and
Compulsory
Education Act 2009- Appointment of
Part-time instructor- in Primary Schoolby G.O. dated 31.01.2013-cut off date of
age limit-provided 21 to 35 yrs-unless
found unreasonable-does not amount
hostile
discrimination-can
not
be
interfered under writ jurisdiction.

Held: Para-10
Having heard the respective submissions,
the Scheme is for appointment of a short
duration of eleven months as a part-time
Instructor subject to further renewal. The
age limit of 35 years is a criteria that is
2 All] Aditya Kumar and others Vs. The State of U.P. and others
651
prescribed for engaging such Instructors. I
have not been able to locate any logical
reason to reject this fixation. The State has
the competence to employ candidates up to
a reasonable age. By making such a
prescription the State does not become
irrational in its approach. If the age was
fixed, say upto 45 years, then those above
45 would raise the same argument. This by
itself, therefore, cannot be the basis of a
challenge
to
the
criteria
unless
unreasonableness is writ so large, that it
may appear to be absurd. The age of 35
years has not in any way been demonstrated
to be a wrong or unfit age as the maximum
for a part-time Instructor. Even otherwise, it
does appear that the Scheme has been
introduced as a human resource harnessing
measure to provide employment to this
middle age group of youth who may be
saved
from
wandering
aimlessly
for
employment. The State is making efforts
with central aid to ameliorate this condition
and if it has chosen the maximum age limit
of 35 years, the same cannot be illogical.

## Text

650 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
authority. The main stand of the State is
of taking possession after notice under
Section 10(5) of the Act and sometimes
giving the same to the development
authority.

45. Here we are to notice that in
respect to the rights and possession over the
property of others (if two sets are there) the
person who may not have any right draws a
skeleton and fill ups the colour and then
presents the same till the last in a very
powerful manner. It is then on defeat he
leaves the property/possession. Here we are
talking from the State side that notice under
Section 10(5) of the Act to surrender and
deliver the possession was given and
everything went off so peacefully which no
one can imagine. At various times the
development authorities state about their
possession. Certainly that has to flow from
the State, therefore, first State has to
demonstrate its lawful authority i.e. taking of
actual physical possession in accordance
with law and if that is not substantiated then
everything has to fall. This being very basic
thing in all the petitions, all the aspects were
checked in presence of the State side, some
from the record and some otherwise upon
which a conclusion has been arrived at. As
and when an individual case is to be there the
tenure holder is to establish either of the
situation as has been explained in series of
the cases noted on the point and also the case
in hand for getting the relief. If the factual
premises do not support the petitioner then
certainly State has to succeed.

46. In respect to the cases where after
declaration of the land as surplus and deemed
vesting, the landholder has transferred their
land, the question of consideration of their
existing rights has to be seen as on the date
of transfer whether they have any right to be
enforced or otherwise, and therefore, this
class of cases will have to be kept separate
for being dealt.

47. Accordingly, all the writ
petitions are allowed. Respondents are
directed not to interfere in the peaceful
possession of the petitioners and also to
restore entry of their name on moving
appropriate application in accordance
with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2013

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 10450 Of 2013

Aditya Kumar and others ...Petitioners
Versus
The State of U.P. and othersRespondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri O.P. Singh
Smt. Durga Tewari, Sri Chandan Sharma
Sri Basisht Narain Pandey
Sri J.K. Srivastava

Counsel for the Respondents:
C.S.C., A.S.G.I., Sri R.A. Akhtar
Sri Kalpraj Singh, Sri Vipin Pandey
Constitution of India, Art.-14-Right of
Children
to
Free
and
Compulsory
Education Act 2009- Appointment of
Part-time instructor- in Primary Schoolby G.O. dated 31.01.2013-cut off date of
age limit-provided 21 to 35 yrs-unless
found unreasonable-does not amount
hostile
discrimination-can
not
be
interfered under writ jurisdiction.

Held: Para-10
Having heard the respective submissions,
the Scheme is for appointment of a short
duration of eleven months as a part-time
Instructor subject to further renewal. The
age limit of 35 years is a criteria that is
2 All] Aditya Kumar and others Vs. The State of U.P. and others
651
prescribed for engaging such Instructors. I
have not been able to locate any logical
reason to reject this fixation. The State has
the competence to employ candidates up to
a reasonable age. By making such a
prescription the State does not become
irrational in its approach. If the age was
fixed, say upto 45 years, then those above
45 would raise the same argument. This by
itself, therefore, cannot be the basis of a
challenge
to
the
criteria
unless
unreasonableness is writ so large, that it
may appear to be absurd. The age of 35
years has not in any way been demonstrated
to be a wrong or unfit age as the maximum
for a part-time Instructor. Even otherwise, it
does appear that the Scheme has been
introduced as a human resource harnessing
measure to provide employment to this
middle age group of youth who may be
saved
from
wandering
aimlessly
for
employment. The State is making efforts
with central aid to ameliorate this condition
and if it has chosen the maximum age limit
of 35 years, the same cannot be illogical.

(Delivered by Hon'ble A.P. Sahi, J)

1. The common thread of arguments in
all these petitions raises a challenge to the
fixation of upper age limit of 35 years for
engagement as a part-time Instructor in a
Scheme floated by the State Government
with the financial aid of the Central
Government under the Right of Children to
Free and Compulsory Education Act, 2009.

2. The notification advertised on
3.10.2012 for the said purpose only
prescribed a minimum age bar of 21 years
with a restriction that a retired teacher
above the age of 65 years would not be
engaged. This Government Order was
rescinded
and
replaced
by
the
Government Order dated 31.1.2013 which
introduces the maximum age restriction of
35 years. Clause 4 (i) of the Government
Order which is under challenge is quoted
herein under:-

^^41⁄411⁄2 orZeku 'kSf{kd l= 2012&13 esa vH;FkhZ
dh vk;q 01 tqykbZ 2012 dks U;wure 21 o"kZ rFkk 35
o"kZ ls vf/kd ugha gksxhA^^

3. I have heard Sri Ashok Khare,
learned Senior Counsel, Smt. Durga
Tewari, Sri Chandan Sharma, Sri Basisht
Narain Pandey and Sri J.K. Srivastava,
Advocates for the petitioners and Sri
Kalpraj Singh, Sri Vipin Pandey and Sri
Tomar, learned Standing Counsel for the
respondents.

4. The thrust of the arguments of all
the learned counsel is that for the
appointment of a teacher in a Primary or a
Junior High School on the regular side is
not fettered by such maximum age and is
also relaxable. Even for engagements
under Schemes like that of Instructors,
Shiksha Mitra, Prerak or Vocational
Teachers, no such upper age limit is
provided for. In the present case also the
predecessor Government Order dated
3.10.2012 did not place any bar and,
therefore, there is no rational basis for
now introducing the maximum age of 35
years that eliminates all the petitioners
from the zone of consideration.

5. It is urged that the norms fixed
under the Notification dated 3.9.2001 by
the
NCTE
prescribing
minimum
qualifications, no such restrictions have
been
imposed
and,
therefore,
the
impugned condition has no rational nexus
with the object sought to be achieved. It is
for this reason that the earlier Government
Order dated 3.10.2012 did not place any
such restriction.

6. The petitioners, some of whom hold
C.P.Ed.
qualifications
urge
that
such
certificates were awarded upto 1997 in the
State of U.P. and have been given up in other
States. Such candidates are obviously above
652 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the age bar as they are holders of certificates
that were issued long ago. They are very few
in number in the entire State and, therefore,
they could be possible candidates but for the
age bar that has now been introduced. The
argument is that the maximum age limit as
prescribed is designed to eliminate these
candidates and put them out of employment.

7. It is then urged that the definition
of the academic session should not be
treated as the year of recruitment as the
advertisement itself has been issued after
the Government Order dated 31.1.2013.
There is, therefore, no rationality in
asking for the age limit as on 1.7.2012 as
the appointments will be made now in
2013.

8. Another similarity is sought to be
drawn from no such age bar being fixed
for appointments in girls institutions
under the Kasturba Gandhi Awasiya
Balika Vidyalaya Yojna.

9. Opposing the said arguments, the
State contends that fixing the upper age
limit is within the executive powers of the
State and is in tune with such limitations
in all State employment. The competence
of the State to do so cannot be doubted.
The petitioners have not been able to
point out any irrationality in the limit so
fixed. A cut-off-date has been provided
which also relates to the process of
selection for 11 months duration subject
to further renewal and it is a rational
method of short-listing applications which
cannot be said to be arbitrary. The age
limit is commensurate to the nature of the
job of teaching which is to be performed
for the students of a particular age group.
Merely because some other age limit or
no age limit would be better, cannot be a
ground to invoke Article 14 of the
Constitution to strike down the maximum
age prescribed.

10. Having heard the respective
submissions,
the
Scheme
is
for
appointment of a short duration of eleven
months as a part-time Instructor subject to
further renewal. The age limit of 35 years
is a criteria that is prescribed for engaging
such Instructors. I have not been able to
locate any logical reason to reject this
fixation. The State has the competence to
employ candidates up to a reasonable age.
By making such a prescription the State
does
not
become
irrational
in
its
approach. If the age was fixed, say upto
45 years, then those above 45 would raise
the same argument. This by itself,
therefore, cannot be the basis of a
challenge
to
the
criteria
unless
unreasonableness is writ so large, that it
may appear to be absurd. The age of 35
years
has
not
in
any
way
been
demonstrated to be a wrong or unfit age
as
the
maximum
for
a
part-time
Instructor. Even otherwise, it does appear
that the Scheme has been introduced as a
human resource harnessing measure to
provide employment to this middle age
group of youth who may be saved from
wandering aimlessly for employment. The
State is making efforts with central aid to
ameliorate this condition and if it has
chosen the maximum age limit of 35
years, the same cannot be illogical.

11.

Merely
because
other
engagements in the past did not make
such a provision would by itself not be
sufficient to treat the fixation to be
arbitrary. In the absence of any further
material, the power to fix an upper age
limit for engagement by the employer is
not taken away. The alteration in the
conditions
between
the
Government
2 All] Chandan Vs. State of U.P. and another
653
Orders dated 3.10.2012 and 31.1.2013,
therefore, does not amount to any act of
hostile discrimination so as to accept the
arguments of the petitioners. The fixation can
also be construed to be in the interest of
students to provide energetic and suitably
aged Instructors for teaching the category of
Primary and Junior classes. There is no
irrationality in making such a provision. A
little more relaxation would be convenient or
alternatively acceptable as a better option is a
matter of policy which does not fall within
the powers of a court to fix. Since the
Scheme has been brought into existence in
the 2012-13 session, the cut-off-date has a
rational nexus and cannot be discarded on the
ground of being implemented later on in
2013. The invitation and sorting of
applications that are likely to be huge in
number does consume some time and,
therefore, a date in relation thereto prior to
the advertisement cannot be arbitrary merely
because the consequential processing is to be
effected later on. The provision of not having
an age bar in other schemes or in a girls
institution cannot be a comparable argument
to declare the upper age limit as arbitrary.

12. None of the arguments, thus,
advanced by the petitioners holds water
and the challenge raised lacks merit. The
petitions are, accordingly, dismissed with
no order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.04.2013

BEFORE
THE HON'BLE RAMESH SINHA, J.

Criminal Misc. Application No. 10525 of 2012

Chandan

 ...Applicant
Versus
State of U.P. and another ...Respondents
Counsel for the Applicant:
Sri Manikant Srivastava
Sri Jai Singh Chandel

Counsel for the Respondents:
A.G.A., Sri M.C. Singh
Sri Dushyant Singh

Code of Criminal Procedure-Section 482-
Prayer for quashing proceeding under
section 363, 366. the prosecutrix in
statement
under
section
164
has
admitted her age 19 yrs.-having brilliant
academic record not a case of enticing
away merely on elopement No offence
under section 363. 366 IPC made outproceeding quashed.

Held: Para-18
From the statement of the prosecutrix Sita it
could not be said that it was an act of 'taking
away or enticed away' rather it would be a
case of elopement as was indicated by the
Apex Court in the of Varadarajan Vs. State of
Madhya Pradesh, AIR 1965 Supreme Court,
942 where the Apex Court had distinguished
the case of taking or enticing away from the
mere
act
of
elopement
and
in
that
connection has pointed out that even if a
lady, who had not attend the majority i.e the
age of 18 years herself goes with a man of
her own volition then it could not be said to
be a case of either taking away or enticing
away a minor women out of keeping of her
lawful guardianship. It was further held that
in such factual situation no offence either
under sections 363, 366-A or 366 I.P.C could
be said to be made out. The Apex Court in
the case of Jaimala Vs. Home Secretary,
Government of Jammu and Kasmir, AIR
1982 SC 1297 has held that in addition of
three years is to be made to medically assess
the age and thus from the medical report of
the prosecutrix it is evident that she is aged
about 19 years of age.

Case Law discussed:
AIR 1965 Supreme Court, 942; AIR 1982 SC 1297

(Delivered by Hon'ble Ramesh Sinha, J)