Divya. S v. State of Kerala and Others (RP 1023/2023 in O.P.(KAT) No. 51/2023)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945** ## **RP NO. 1023 OF 2023** **AGAINST OP(KAT) 51/2023 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/PETITIONER:** DIVYA. S AGED 44 YEARS W/O RAJEEV, WORKING AS NON-VOCATIONAL TEACHER (SENIOR), GOVERNMENT HSS, CHALAKKUDY, CHALAKKUDY, THRISSUR DISTRICT -680307, RESIDING AT KRRA - 127, KOLATHERI ROAD, MARADU P.O., ERNAKULAM DISTRICT, PIN - 682304 BY ADVS. NISHA GEORGE GEORGE POONTHOTTAM (SR.) A.L.NAVANEETH KRISHNAN ## **RESPONDENTS/RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY. DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE DIRECTOR OF COLLEGIATE EDUCATION DIRECTORATE OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN,VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, KERALA, PIN - 695033 3 THE KERALA PUBLIC SERVICE COMMISSION THULASI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN - 695004 4 THE UNIVERSITY GRANTS COMMISSION (UGC) BAHADUR SHAH ZAFAR MARG, NEW DELHI, REPRESENTED BY ITS CHAIRMAN, PIN - 110002 BY ADV S. Krishnamoorthy S ADV.P.C.SASIDHARAN (SC, KPSC) ADV.B.UNNIKRISHNA KAIMAL (SR.G.P.) THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **R.P.No.1023/2023 in O.P.(KAT)NO.51/2023** ## **-:2:-** **O R D E R** _**Dated this the 19[th] day of February, 2024**_ ## **C. Jayachandran, J.** **This review petition is directed against the judgment of a Division Bench of this Court dated 09.08.2023 in O.P.(K.A.T.)No.51/2023, which dismissed the challenge made by the petitioner to the upper age limit fixed by the State, in the selection notification dated 11.12.2019, to the post of Assistant Professor under the Department of Collegiate Education. The review is sought for, essentially on the ground that, the U.G.C. Regulations, which do not prescribe an upper age limit, is a subordinate legislation framed under Entry 66 to List I of the 7[th] schedule of the Constitution. The field thus being occupied, the** ## **R.P.No.1023/2023 in O.P.(KAT)NO.51/2023** ## **-:3:-** **upper age limit fixed by the State Government, purportedly under Article 309 and Entry 41 to List II of the 7[th] schedule, is repugnant to the Central legislation and hence void. Reliance placed by the Division Bench of this Court in** _**Dr.J.Vijayan and Others v. State of Kerala and Others [2022 SCC Online SC 958]**_ **and** _**Jagdish Prasad Sharma and Others v. State of Bihar and Others [(2013) 8 SCC 633)**_ **, both, are misconceived, inasmuch as, the issue which was under consideration in those decisions was the retirement age of the employees, which is squarely a matter coming within the service conditions; whereas, an upper age limit fixed for the purpose of selection to a post, forms part and parcel of the qualification and minimum eligibility criteria, which cannot be treated at par with the service conditions, since the candidates like the petitioner has not entered the service. On the paramountcy of the U.G.C.** ## **R.P.No.1023/2023 in O.P.(KAT)NO.51/2023** ## **-:4:-** **Regulations, the judgments of the Hon'ble Supreme Court in** _**Gambhirdan K.Gadhvi v. State of Gujarat and Others [2022 (5) SCC 179]**_ **and** _**Professor (Dr.) Sreejith P.S. v. Dr.Rajasree M.S. and others [2022 SCC Online SC 1473],**_ **were relied upon.** **2. Heard Sri. A.L.Navaneeth Krishnan, learned counsel for the review petitioner, Sri.P.C.Sasidharan, learned Standing Counsel for the 3[rd] respondent/Kerala Public Service Commission and Sri.B.Unnikrishna Kaimal, Learned Senior Government Pleader on behalf of the respondents 1 and 2/State.** **3. Having heard the learned counsel for the respective parties, we find little merit in the contentions urged in this review petition. Primarily, we notice that, the contentions urged** ## **R.P.No.1023/2023 in O.P.(KAT)NO.51/2023** ## **-:5:-** **were raised and answered by the Division Bench in the judgment under review. The alleged non competence of the State to prescribe an upper age limit, inasmuch as, the U.G.C. Regulations are silent about the same, has been taken note of in paragraph no. 10 of the judgment by the Division Bench. Vide discussion in paragraph nos. 11, 12 and 13, the said contentions are seen repelled, relying upon** _**Dr.J.Vijayan and Others**_ **(supra) and** _**Jagdish Prasad Sharma and Others**_ **(supra). It was held in paragraph no.13 that prescription of an upper age limit, vide Statutory Special Rules, is within the legislative competence of the State, vide Entry 41 to List II of the 7[th] schedule. Legislative competence, in this regard, is seen referred to in Entry 25 of List III, as well. It was specifically held that prescription of an upper age limit cannot be a matter, which would lead to reduction of the minimum standards of education, referable to Entry 66 to List I. The** ## **R.P.No.1023/2023 in O.P.(KAT)NO.51/2023** ## **-:6:-** **undesirable and unreasonable consequences which may follow, if the petitioner's/review petitioner's contention is accepted, is taken stock of by the Division Bench in paragraph no.16 of the judgment, wherein, it is observed that acceptance of such contentions would enable a person even of the age of 55 years to be eligible to apply for the post of Assistant Professor. Therefore, the alleged repugnancy with respect to the stipulation as regards the upper age limit in the Special Rules, in terms of Article 254 of the Constitution, has already been answered in the judgment under review and therefore, does not offer sufficient ground for the review on that count.** **4. The reliance placed by the learned counsel for the petitioner in** _**Professor (Dr.) Sreejith P.S.**_ **(supra),** _**Gambhirdan K.Gadhvi**_ **(supra), and** _**State of West Bengal v. Anindya Sundar Das and**_ ## **R.P.No.1023/2023 in O.P.(KAT)NO.51/2023** ## **-:7:-** _**Others**_ **(Civil Appeal No.6706/2022), appears to be misplaced. All these decisions were pertaining to appointment of Vice Chancellor of various Universities in various States. The appointments were frowned upon by Hon'ble Supreme Court, for the reason that the search committee, competent to make recommendations for appointments, was constituted contrary to the provisions of U.G.C. Regulations, rendering such recommendations and consequent appointments void** _**ab initio**_ **. Repugnancy in terms of Article 254 of the Constitution was found in the facts therein. We notice that, in those decisions, there was a clear violation of the mandatory provisions under the U.G.C. Regulations; whereas, in the instant case, there is no such violation, inasmuch as, no upper age limit is fixed by the U.G.C. Regulations. By fixing the upper age limit by the State Government would only improve the standards in the matter of appointment of the** ## **R.P.No.1023/2023 in O.P.(KAT)NO.51/2023** ## **-:8:-** **Assistant Professor, as otherwise, a person who is aged 55 years may even become eligible to contest for such appointment. At any rate, it does not militate against the co-ordination and determination of standards in institutions for Higher Education, vide Entry 66 to List I.** **5. Now, coming to the last contention that the dictum laid down in** _**Dr.J.Vijayan**_ **(supra) and** _**Jagdish Prasad Sharma**_ **(supra) will not apply, since the factual matrix therein pertained to service conditions, whereas an upper age limit prescribed for selection to post cannot be a service condition, all what we need to notice and hold is that Art.309 contemplates to regulate recruitment as well, besides conditions of service.** **6. We find no reason to review the judgment of the Division Bench in O.P.(KAT)No.51/2023, with** **R.P.No.1023/2023 in O.P.(KAT)NO.51/2023** ## **-:9:-** **the result, this review petition will stand dismissed.** ## **Sd/-** **ANU SIVARAMAN, JUDGE Sd/C. JAYACHANDRAN, JUDGE** **TR** **R.P.No.1023/2023 in O.P.(KAT)NO.51/2023** **-:10:-** ## **APPENDIX OF RP 1023/2023** PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O.(P) NO. 4/2023/HEDN DATED 11.04.2023