Holding

The cut‑off date for age eligibility is to be fixed by the service rules, the advertisement, or the last date of receipt of applications, and the appellants are bound by the High Court’s recorded observations and must seek any review in that court.

Summary

The case concerned about 2,000 primary teachers appointed in Bihar between 1981-83 whose appointments were later declared illegal and terminated. The High Court ordered a fresh selection, directing the State to relax the age limit for those who became over‑aged during the intervening period. After the fresh selection, some unsuccessful candidates filed writ petitions alleging that the High Court had wrongly recorded their submissions and failed to consider their pleas regarding age eligibility. The Supreme Court held that the cut‑off date for age eligibility must be determined by (i) the service rules, (ii) the advertisement, or (iii) the last date for receipt of applications, and directed the authorities to decide the appellants' eligibility within four months. It further ruled that the appellants are bound by the High Court’s recorded observations and cannot seek to overturn them before the Supreme Court; any grievance must be raised in the High Court through a review or clarification application. The appeals were dismissed and the directions of the High Court were upheld.

Issues considered

The appropriate cut‑off date for determining age eligibility in the fresh recruitment of teachers.
Whether the appellants can challenge the High Court’s recording of their submissions and claim that certain pleas were not considered.
Whether the appellants may take a different stand from the concession made before the High Court regarding their over‑age status.
The procedure for seeking review of alleged wrong recording of facts by a lower court.

Subjects

service lawteacher appointmentage limiteligibility criteriacut‑off datereview applicationwrit petitionSupreme CourtHigh Court

Judgment

A SHANK.ARK. MANDAL AND ORS.
v.
STATE OF BI HAR AND ORS.

APRIL 17, 2003

B [SHIVARAJ V. PATIL AND ARIJIT PASA YAT, JJ.]

Service Law:

Appointment of teachers-Termination on ground of illegality in
C appointments-Challenge to-High Court directed State to make appointment
afresh by giving opportunity to the teachers removed from service and relaxing
the age limit in appropriate cases-Affirmed by Supreme Court-Non-
se/ection of some of the candidates on ground of over age-Challenged by
way of Writ petition-Dismissed by the High Court-On appeal, Held: cut-
D off date by reference to which eligibility is determined would either be the
date of appointment as per service rules or the date mentioned in the
advertisement for recruitment or the last date of receipt of the app/ication-
Authority to determine eligibility of appellants accordingly with regard to
age liti1it.

E Practice and Procedure:

Non-consideration of pleas by the Court-Wrong recording of
submission by the High Court-Remedy of-Held: it is not open to the parties
to take such pleas before the Supreme Court-Only course open is calling
attention of the Judge who made such recording or by filing a proper
F application for Review/clarification.

Words & Phrases:

'wrong recording ofthe stands' and 'non consideration ofsubmission'-
Meaning of
G
Respondent-State had made appointment of2000 primary teachers. Their
appointments were challenged on the ground of illegality committed in
appointments. Later, their services were terminated. Writ petitions filed by
the aggrieved teachers were disposed of by the High Court directing the State
H to make appointments afresh considering applications from the writ petitioners
796
SHANKAR K. MANDAL v. STATE 797
and other teachers removed from service, allowing age relaxation to such A
candidates. On appeal, this Court affirmed the Judgment of the High Court
and issued directions to the State that while making fresh selection
disqualification due to altered recruitment rules should not be imposed on
such candidates. State made fresh selection. Some of the unsuccessful
candidates filed writ petitions. Dismissing the writ petitions, High Court
directed them to file representations for consideration by the authorities. Hence B
the present appeal and the connected appeals.

It was contended for the appellants that in view of the direction given by
the Supreme Court, a candidate who was not overaged on the date of his initial
appointment was to be considered for appointment in the fresh selection; that C
the High Court did not consider this to determine their eligibility; and that
their submissions with regard to overage were wrongly recorded and some of
their pleas were not considered by the High Court.

On behalf of the respondent-State, it was submitted that since appellants
having made a concession before the High Court that they were over-aged on D
the date of appointment, it was not open for them to take a different stand.

Disposing of the appeals, the Court

HELD: I.I. It is true that there was concession before the Hilb Court
that appellants were over aged on the date of initial appointment. But there E
was no conc~ssion that they were over aged at the time of making the
application. No definite material was placed before the High Court and also
before this Court to give a definite finding on the aspect of age limit.
[801-F, G[

1.2. The effect of any prescription/non-prescription of age limit has been F
considered by this Court in several cases, and the principles enunciated 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; G
(2) If there is no cut off date appointed by the rules then such date
shall be as appointed for the purpose in advertisement calling for
applications; and
(3) If there is no such date appointed then the eligibility criteria H
798 SUPREMF COURT REPORTS (2003] 3 S.C.R.

._,A shall be applied by reference to the last date appointed by which
the applications were to be received by the competent authority.
1801-G, H; 802-A-CI

The authority has to decide about applicability of either of these three
conditions as to the facts of the given case. Jn the absence of definite material,
B the authorities are directed to take a decision within a period of four months
to determine as to whether the appellants or any one of them was eligible, by
applying these tests. These directions shall apply to the writ petitioners-
appellants only. The other directions given by the High Court do not warrant
any interference as there has been no challenge by the State Government.
C 1802-D, El

Ashok Kumar Sharma and Ors. '"Chander Shekhar and Anr., 119971 4
SCC 18; Bhupinderpa/ Singh v. State of Punjab, 120001 5 SCC 262 and Jasbir
Rani and Ors. v. State of Punjab and Anr., 120021 I SCC 124, relied on.
·,
D 2. It is not open for the appellants to take the plea before this Court that
their submission with regard to 'age limit' was wrongly recorded by the High
Court, as they were bound by the observations of the High Court. If there was
any wrong recording of the stands or a different stand was taken, the only
course OifR to the appellant was to move the High Court calling attention of
E the Judges who have made the record. If no such step was taken, the matter
must necessarily end there. 1803-D, F, GI

State of Maharashtra v. Ramdas Shrinivas Nayak and Anr., 1198212 SCC
463 and Bhavnagar University v. Pa/itana Sugar Mill Pvt. ltd and Ors., 120021
AIR SCW 4939, relied on.
F
3. It is also not open to the parties to contend that a plea raised was not
considered. If indeed any ground which was argued was not considered it should
be open to the party aggrieved to draw the attention of the Court making the
order by filing a proper application for review or clarification.
1803-H; 804-CI
G
Daman Singh and Ors. etc. v. State of Punjab and Ors. etc., AIR (I 985)
SC 973, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 916of1999.

H From the Judgment and Order dated 15.7. 1998 of the Patna High Cou11
SHANKARK. MANDALv. STATE[ARIJITPASAYAT. J.) 799
in C.W.J.C. No. 300of1988. A
WITH
C.A. No. 1524of1999.

M.P. Venna, Dhruv Aggarwal, Manoj Saxena, Pravir Choudhary, Prakash
Kumar Yadav and Dr. Krishan Singh Chauhan for the Appellants. B
Ashok Mathur and B.B. Singh for the Respondents.

The Judgment of the Court was delivered by

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

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. D
No.1524/1999 is directed against the judgment in Letters Patent Appeal whereby
the order of the learned Single Judge was affinned. The writ petition was filed
by the present appellants.

Factual background so far as undisputed is essentially as follows:
E
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 F
of teachers in elementary schools in various districts by inviting applications
from the writ petit,ioners 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 servic·e on stipend and removal, the same was not to be G
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 H
SUPREME COURT REPORTS [2003) 3 S.C.R.

A
800
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
B 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 ~ervice 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
c 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."

D 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 instead of taking into account the
contradictory conclusions reached in these cases we have heard
E 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, 199 I the
selection process contemplated in the High Court's order shall be
worked out. In considering the suitability for selection the Rules
F
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 High
G Court shall not be used against the teachers for their selection."

Pursuant to the directions contained in the earlier judgment of the High
Court as affirmed by this Court, a fresh exercise was undertaken. Since the
present appellants were not selected, writ petitions were filed before the High
Court. In the writ petition which was filed by 55 persons and disposed of by
H the Division Bench the conclusions were essentially as follows: (1) Some of
• SHANKAR K. MAN DAL v. STATE [ARJJIT PASA YAT, J.) 801
the writ petitioners (Writ petitioners Nos. 5, 18, 23, 28, 41 and 53) were over A
age at the time of their initial appointment and their cases were, therefore,
wholly covered by the directions given by the High Court, and they were not
entitled to relaxation of age;(2) So far as writ petitioners Nos. 6, 26, 30 and
55 are concerned, the stand was that they had not crossed the age limit at
the time of making the applications for appointment and, therefore, were
within the age limit at the time of initial appointment and were, therefore, B
entitled to relaxation of age in terms of the judgment passed by the High
Court earlier and affirmed by this Court. This plea was turned down on the
ground that what was relevant for consideration related to the age at the time
of initial appointment and not making of the application; (:i) As regards writ
petitioner No.24, he was under age at the time of appointment. He was C
permitted to file a representation before the Director of Primary Education and
the High Court ordered that his case would be considered afresh; (4) In
respect of writ petitioners Nos. 9 and 17, it was noted that they were refused
absorption on the ground that they had not made any application in response
to advertisement issued pursuant to the order passed by this Court. Since no
material was placed to substantiate this stand and no reasons had been D
communicated for non-absorption, direction was given to consider
representations if made by them within one month from the date of judgment.
The said judgment is under challenge in C.A. No.916/1999. Appellants have
taken the stand that in terms of this Court's judgment, a person who was not
over age on the date of initial appointment was to be considered. Though it E
was conceded before the High Court that they were over age at the time of
initial appointment, much would turn as to what is the date of initial
appointment. The High Court had not considered as to what was the applicable
rule so far as the eligibility regarding age is concerned. Learned counsel
appearing for the respondent-State however submitted that having made a
concession before the High Court that they were over age on the date of F
appointment, it is not open to the appellants to take a different stand. The
crucial question is whether appellants were over age on the date of their initial
appointment. 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. G
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 H
802 SUPREME COURT REPORTS (2003 I 3 S.C.R.

A several cases. The principles culled out from the decisions of this Court (See
Ashok Kumar Sharma and Ors. v. Chander Shekhar and Anr., [ 1997] 4 SCC
18, Bhupinderpal Singh v. State of Punjab, [2000] 5 SCC 262 and Jasbir Rani
and Ors. v. State of Punjab and Anr., [2002] I SCC 124 are as follows:

(I) The cut off date by reference to which the eligibility requirement
B must be satisfied by the candidate seeking a public employment is the date
appointed by the relevant service rules;

(2) Ifthere 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
c
(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
D 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 aut_horities
to tak;e 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
E in the present appeal and to nobody else. The other directions given by the
High Court so far as the writ petitioners Nos. 9, 17 and 24 are concerned do
not warrant any interference as there has been no challenge by the State
Government.

The appellants in C.A. No.1524/1999 have taken a stand that the learned
F Single and the Division Bench of the High Court proceeded on the basis as
if they had questioned non-inclusion in the panel prepared in 1984-85. They
were appointed in the year 1983 and, therefore, the question of their assailing.
non-inclusion in the panel in 1984-85 does not arise. It was further submitted
that there was specific challenge as regards conclusion that they were overaged.
G This was pointedly urged before the High Court (both before learned Single
Judge and Division Bench). But the same was not considered. Learned counsel
for the State Government in opposition submitted that the appellants had
taken different stands before the High Court and it is not open to them to
take different stands before this Court. He, however, accepted that in the
memorandum of appeal before Division Bench age question was raised. Learned
H Single Judge proceeded on the basis as if the writ petitioners had staked their
SHANKARK. MANDALv. STATE [ARIJIT PASAYAT,J.) 803
claim based on the panel which was prepared in 1984-85. This is evident from A
the following observations:

"The petitioners have filed the present applications for their appointment
to the post of Assistaift Teachers in the district of Dumka and Sahebganj on
the basis of the panel which was prepared in 1984-85."
B
Before the Division Bench, as the records show, there was no stand
taken that the learned Single Judge proceeded on erroneous factual premises.
On the contrary, the following observation of the Division Bench would show
the definite stand that was taken by the appellants before it:

"This LettetSI Patent Appeal arises of the impugned order dated C
23.4.1988 passed by the learned Writ Court wherein the appointment
to the post of the Assistant Teachers in the District of Dumka and
Sahebganj on the basis of panel, which was prepared in 1984-85 was
under challenge."

When the aforesaid aspects were pointed out to the learned counsel for D
the appellants, he submitted that the learned Single Judge and the Division
Bench have erroneously recorded the submissions. They also did not consider
specific plea that appellants were not overaged.

It is not open for the appellants to take such stand before this Court,
as they are bound by the observations of the High Court. If there was any E
wrong recording of the stands, the course to be adopted is well known.

If really there was no concession, or a different stand was taken, the
only course open to the appellant was to move the High Court in line with
what has been said in State of Maharashtra v. Ramdas Shrinivas Nayakand F
Anr., (1982] 2 SCC 463. In a recent decision Bhavnagar UniversitY v. Palitana
Sugar Mill Pvt. ltd. and Ors., (2002) AIR SCW 4939 the view in the said case
was reiterated by observing that statements of fact as to what transpired at
the hearing, recorded in the judgment of the Court, are conclusive of the facts
so stated and no one can contradict such statements by affidavit or other
evidence. If a party thinks that the happenings in Court have been wrongly G
recorded in a judgment, it is incumbent upon the party, while the matter is still
fresh in the minds of the Judges, to call the attention of the very Judges who
. · have made the record. That is the only way to have the record corrected. If
no such step is taken, the matter must necessarily end there. It is not open
to the appellant to contend before this Court to the contrary. H
804 SUPREME COURT REPORTS [2003] 3 S.C.R.

A It is also not open to contend that a plea raised was not considered.
In Daman Singh and others, etc. v. State of Punjab and Ors, etc., AIR ( 1985)
SC 973) it was observed (in para 13) as follows:

"The final submission of Shri Ramamurthi was that several other
questions were raised in the writ petition before the High Court but
B they were not considered. We attach no significance to this submission.
It is not unusual for parties and counsel to raise innumerable grounds
in the petitions and memorandum of appeal etc., but, later, confine
themselves, in the course of argument to a few only of those grounds,
obviously because the rest of the grounds are considered even by
them to be untenable. No party or counsel is thereafter entitled to
c make a grievance that the grounds not argued were not considered.
If indeed any ground which was argued was not considered it should
be open to the party aggrieved to draw the attention of the court
making the order to it by filing a proper application for review or
clarification. The time of the superior courts is not to be 1wasted in
D enquiring into the question whether a certain ground to 'which no
reference is found in the judgment of the subordinate court was
·~
'
argued before that court or not?"

In usual course stands taken before this Court would have been ignored
in view of the settled position of law indicated above. But, in view of the fact
E that in the connected matter, directions have been given for consideration of
the age aspect, it would be appropriate if similar consideration is made in
respect of the appellants. The directions shall operate in respect of present
appellants also.

Appeals are disposed of on aforesaid terms. There shall be no order as ..
F to costs in both the appeals.
S.K.S. Appeals disposed of.