JUDGMENT S. K. Homachaudhuri, J. -In this petition 44 petitioners have approached this Court impugning the notification No. 323 dated 31st. January, 1991, purporting to terminate their services. 2. The petitioners were appointed in non-teaching pasts in different cadres an different dates in the J.M. Institute of Technology, Darbhanga and Magadh Engineering College. Gaya. by the Managing Committee thereof which are stated in Annexure 4 to this writ petition. Both the institutions, namely, J.M. Institute of Technology, Darbhanga and Magadh Engineering College, Gaya were private institutions at the material time of appointments of the petitioners. The State Government with a view to curbing establishment of private technical institutions and taking over of such institutions, enacted the Bihar State Engineering and Pharmacy Teaching Institutions (Management & Control) Act, 1982 (Act 63 of 1982) and the said Act was published in the notification dated 7.8.1982. Thereafter on the basis of the recommendation of the High Level Committee, constituted on 7.3.1984, the Government of Bihar took over the three private Engineering Colleges, namely Indian College of Engineering, Motihari, Jagarnath Mishra Institute of Technology, Darbhanga and Magadh Engineering College, Gaya, with effect from 9.12.1986 by the Ordinance No. 37 of 1986. A copy of relevant part of the Ordinance is annexed to this writ petition as Annexure 3. 3. Section 5 of the said Ordinance having bearing in the instant case is quoted below: "5. Determination of conditions of Service of teachers and other categories of employees of the private Engineering College. - (1) All the staff employed in the private Engineering College shall cease to be the employees of the concerned private Engineering College from the date of vesting in the State Government under Section 3 : Provided that the employee shall continue to serve the concerned private Engineering College on adhoc basis till a decision under sub-section (3) is taken by the State Government. (2) The State Government shall set up one or more Committee of experts and knowledgeable person who shall examine the strength of staff and the staffing pattern and shall further examine the bio-data of each member of the teaching staff and other categories of employees of each of the private Engineering Colleges and shall ascertain whether strength, staffing pattern, appointment, promotion or confirmation sanctioned and made by the Managing Committee of each of the private Engineering College are proper in accordance with Universities Act, statutes, Ordinance, rules or Government direction, circular and shall take into consideration all relevant materials such as the requirements of the private Engineering College, qualification, experience and research degree etc. and submit its report to the State Government. (3) The State Government on receipt of report of the Committee or Committees, as the case may be shall determine the strength of teaching and other categories of employees and the staffing pattern and shall decide in respect of each member of the teaching and other categories of employees on the merit of each case whether to absorb him in Government service or to terminate his service or to allow him to continue on adhoc basis for a fixed term or on contract and shall where necessary re-determine the rank, pay, allowances and other conditions of service." 4. In pursuance to the provisions of Section 5, the Screening Committee was constituted and all the employees of three technical institutions were kept in service on adhoc basis in the posts which they held at the time of taking over the institutions. The Screening Committee submitted its report in the year 1988 and in that report the Screening Committee opined that the petitioners were not fit for absorption because of the fact that as per the Rules governing the appointment of Government servant at the material time of their original appointments the petitioners were over aged. Thereafter the Government issued the impugned notification dated 31.1.1991 terminating the services of the petitioners. Thereafter the Government issued the impugned notification dated 31.1.1991 terminating the services of the petitioners. English translation of the relevant part of the impugned notification is as follows : "On the basis of the report of the Committee constituted under Sub-section (2) of Section 5 of the 3rd Ordinance, 1990 for the taking over of the Bihar Private Engineering Colleges and utilising the powers conferred under sub-section (3) of Section 5 of the Ordinance and in accordance with the eligibility and conditions prescribed by the Council of All India Technical Education and while considering each case on merit the services of the following non-teaching employees are hereby terminated with effect from the date of issue of this notification.” 5. Apparently the services of the petitioners were terminated by the impugned order because of the fact that the Screening Committee opined that the petitioners were not fit for absorption since as per rules governing the appointment of Government servant they were over-aged at the time of appointment by the Managing Committee of the Institutions. 6. No counter affidavit has been filed on behalf of the respondents. As such, the petition is disposed of on the basis of the averments made in the petition as well as the documents annexed thereto. 7. I have heard the learned counsel for the petitioners and the learned Government Advocate. 8. Mr. Mukhopadhya, learned counsel for the petitioners, submits that the Screening Committee has given a separate list of non-teaching staff who were not eligible for appointment to the post held by them. In case of the petitioners, the Screening Committee opined that since the petitioners were over-aged at the time of their appointment, they were not fit for absorption. As such, apparently the Screening Committee found that the petitioners otherwise possessed the requisite qualification for absorption. Mr. Mukhopadhya submits that in the advertisement inviting applications in response to which the petitioners applied for the post to which they were appointed, no age limit was stipulated by the Managing Committee of the Colleges. Mr. As such, apparently the Screening Committee found that the petitioners otherwise possessed the requisite qualification for absorption. Mr. Mukhopadhya submits that in the advertisement inviting applications in response to which the petitioners applied for the post to which they were appointed, no age limit was stipulated by the Managing Committee of the Colleges. Mr. Mukhopadhya, has drawn my attention to the fact that before passing of the impugned order the Government by Memo No. 878 dated 22.1.1991 raised the upper age limit from 30 to 35 for the candidates of general class and from 35 to 40 in case of Schedule Castes and Schedule Tribes candidates for appointment in Government services and submits that the impugned notification dated 31.1.1991 was issued on the basis of the report of the Screening Committee arbitrarily and without application of mind inasmuch as by that time the Government had already raised the upper age limit of the candidates for the appointment in Government service and that as from the uncontroverted statements of the dates of birth and the dates of appointment of the petitioners, annexed as Annexure 4 to the petition, it is apparent that almost all the petitioners were within the upper age limit at the time of appointment as fixed by the Government by the order dated 22.1.1991. 9. Learned Government Advocate, on the other hand, submits that the notification dated 22.1.1991 has prospective operation and as such does not apply to cases of the writ petitioners who were appointed long before 21.1.1991. 10. I have considered the submissions made on behalf of the petitioners as well as on behalf of the respondents and perused the materials placed before me. 11. It is not disputed that the petitioners were appointed by the competent authority and they possessed requisite qualification for the posts to which they were appointed and number of them were confirmed in the post held by them. As such, it has to be presumed that even if they are over-aged, their age was condoned by the competent authorities who appointed them. As such, it has to be presumed that even if they are over-aged, their age was condoned by the competent authorities who appointed them. On perusal of the statement annexed as Annexure 4 to the petition, stating the dates of birth and the dates of appointment of the petitioners, I find that the submission of the learned counsel for the petitioners that almost all the petitioners were below the upper age limit, namely 35 years in case of general class and 40 years in case of members of scheduled castes and scheduled tribes as fixed by the Government by the notification dated 22.1.1991 is well founded. As such, before passing of the impugned order, the Government having raised the upper age limit from 30 to 35 for the candidates of general class and 35 to 40 for the members of Scheduled Castes and Scheduled Tribes for appointment to the services- under the Government. There is force in the submission of the learned counsel for the petitioners that the impugned notification so far as it purports to terminate the services of the petitioners because of the fact that the Screening Committee found them averaged as per the Rules governing appointment of Government servants at the time of original appointment is arbitrary, unjust and unfair. The submission of the learned Government Advocate that the Government's decision as disclosed under Memo dated 22.1.1991, not being retrospective has no application to the cases of the petitioners who were appointed long before 21.1.1991, is super technical and cannot be accepted. 12. For the reasons stated above, the impugned order so far as it purports to terminate the services of the petitioners on the basis of the finding of the' Screening Committee that the petitioners were not fit for absorption because of the fact that at the time of their appointment to the post held by them they were over-aged as per the Rules governing the appointment of Government servants cannot be sustained. 13. The petition is, therefore, allowed. The impugned notification dated 31.1.1991 so far as it purports to terminate the services of the petitioners is set aside. The petitioners shall be reinstated in service. The period from the date of termination of services of the petitioners to the date of reinstatement shall be counted for continuity of service. 13. The petition is, therefore, allowed. The impugned notification dated 31.1.1991 so far as it purports to terminate the services of the petitioners is set aside. The petitioners shall be reinstated in service. The period from the date of termination of services of the petitioners to the date of reinstatement shall be counted for continuity of service. However, the petitioners shall be entitled to pay and allowances on and from the date of reinstatement or from 1.11.1993 whichever is earlier. I make no order as to costs.