Judgment Radha Mohan Prasad, J. 1. In this application the petitioner prays for issuance of a direction to the respondents to consider her case for promotion to the post of Labour Enforcement Officer with effect from 30-4-1992 when her juniors have been given such promotion, if necessary, by granting relaxation of the so-called prescribed age-limit for such promotion in the special circumstances of the case and further, to grant her consequential benefits arising therefrom, such as senority and other pecuniary benefits arrears of pay etc. 2. In short, the case of the petitioner is that she was initially appointed as social organiser and in the service book her date of birth was recorded as 5th January, 1946. It is stated that the service career of the petitioner has throughout been satisfactory and she has earned remarks in Annual Character roll as excellent and was also recommended for promotion to the higher post. It is also stated that the petitioner was asked to officiate on the higher post of lady welfare officer from time to time in addition to her own duties. In 1984 a communication was issued vide Government letter No.167 dated 22-2-1984 by the Joint Labour Commissioner directing all the Departmental officers to forward the names of suitable candidates for consideration of promotion to the higher post of Labour Inspector by 15th March, 1984. The names of only such departmental employees were required to be sent, who were graduate and had completed five years of service and were within 45 years of age. It is stated that the name of the petitioner was also forwarded by the Dy. Labour Commissioner, Begusarai as she fulfilled till the aforesaid criteria. 3. However, no step was taken thereafter, a notification was issued on 25-1-1991 laying down Rules for appointment/promotion on the post of labour Enforcement Officeer. The said Rule was known as Labour Enforcement officer Rules, 1990 and was published in the official Gazette on 25-1-1990, from which date it was brought into force. It is contended that under the said Rules,, the post of Labour Inspector was re-designated as labour Enforcement Officer remained the same as was with respect to the post of Labour Inspector. 4. It appears that for appointment to the said post two modes were prescribed, (i) direct recruitment and (ii) by way of promotion. It is contended that under the said Rules,, the post of Labour Inspector was re-designated as labour Enforcement Officer remained the same as was with respect to the post of Labour Inspector. 4. It appears that for appointment to the said post two modes were prescribed, (i) direct recruitment and (ii) by way of promotion. Thereafter, the respondents took steps for filling up the aforementioned post of Labour enforcement Officer and vide letter No.320 dated 29-6-91 called for the names of employees of the department, who were eligible for appointment/promotion as on January, 1991. A true copy of the said letter has been annexed as annexure 4. The names were directed to be forwarded to the Laboar commissioner by 13th July, 1991. 5. According to the petitioner, she learnt that her name was forwarded to the office of the Labour Commissioner for consideration of her case for promotion to the higher post of Labour Enforcement Officer, as she fulfilled all the requisite criteria including the age as she completed 45 years age on 5-1-91. Thereafter a Departmental Promotion Committee was constituted, which considered the case of such persons, whose names were received in the office of the Labour Commissioner by 15th February, 91 for promotion to aforementioned post. Further case of the petitioner is that her case was also considered by the Departmental Promotion Committee, but was rejected as she was not found to be eligible for such promotion on the ground that she completed 45 years of age on 5-1-91 and had exceed the prescribed age limit by 26 days on 31-1-91. 6. It is alleged that the juniors of the petitioner had been declared fit for promotion and given promotion to the post of Labour Enforcement Officer along with others vide order No.4 dated 30-4-92 contained in memo No.194 dated 7-5-92 (Annexure 5 ). According to the petitioner, the persons at 91 Nos.1,4,6 and 7 of the said order are juniors to the petitioner as she was appointed as Lady Social Organiser in the year 1971, whereas they had been appointed in the year 1972. As regards others, it is alleged that the petitioner is not aware as to whether they were appointed in the year 1972 or even later, but it is stated that all the 34 persons promoted to the higher post are junior to the petitioner. As regards others, it is alleged that the petitioner is not aware as to whether they were appointed in the year 1972 or even later, but it is stated that all the 34 persons promoted to the higher post are junior to the petitioner. It is contended that all the said juniors to the petitioner were given promotion to the higher post of Labour Enforcement officer on the basis of seniority-cum-merit ignoring the claim of the petitioner. 7. A counter affidavit has been filed on behalf of the respondents. In paragraph 9 of the said counter affidavit it is stated that as the notification containing rules (Annexure 3) was issued on 25th January, 1991, the process of appointment was issued on 26th June, 1991 vide Annexure 4 As such the candidate should be not more than 45 years of age on the date of notification i. e. on 25th January, 91. Accordingly, in paragraph 10 it is contended that the date of birth of the petitioner being 5th January, 1946 she became over age on the date of notification and thus, did not fulfil the eligibility criteria, and in paragraph 16 it is stated that her case was thus, not considered for appointment by promotion. Further, in paragraph 17 of the counter affidavit it is contended that under the aforementioned Rules (Annexure 3)the appointment on the post of Labour Enforcement Officer is not in the cadre post, rather it is a fresh appointment according to Rules and as such, there is no question of senior or junior, rather the eligible candidates were appointed and as the petitioner was not eligible on the date of notification of the Rules, her case could not be considered. However, the claim of the petitioner that her juniors were promoted has not been disputed. 8. A reply has also been filed on behalf of the petitioner and a further rejoinder to the said reply has also been filed on behalf of the respondents along with which a copy of the Rules published in the Bihar Gazette has also been annexed as annexure, 9. 8. A reply has also been filed on behalf of the petitioner and a further rejoinder to the said reply has also been filed on behalf of the respondents along with which a copy of the Rules published in the Bihar Gazette has also been annexed as annexure, 9. This matter came up for admission before the Division Bench on 26-4-94 when the Court on consideration of the submission adjourned the matter for two weeks to enable the State to seek clear instructions so that if the case of the petitioner is considered for promotion by granting relaxation in the special circumstance of the case, it may not be necessary for the Court to examine the other questions Thereafter, a supplementary counter affidavit was filed on behalf of the respondents 1, 2 and 3 on 13-5-94. In the said supplementary counter affidavit it is stated that the matter regarding the consideration of the case of the petitioner for grant of relaxation in the age, in the special circumstances, is being considered by the State respondents and accordingly, two months time was sought for the purpose. 10. However, after it was observed that it is a case of sheer negligence and mindlessness either on the part of the State Counsel or the Departmental functionary and unhappiness over the state of affairs was also expressed by the Court, a further supplementary counter affidavit on behalf of respondents 1 and 2 (wrongly mentioned as "supplementary list on behalf of the respondents 1 and 2)" in the cause title, was filed on 5-7-94, in which it is stated that respondents 1 and 2 had considered the case of the petitioner in respect of relaxation and after considering the facts and circumstances of the case, a sympathetic decision has been taken by them. However, a fresh plea has been taken in the said affidavit that according to the criteria fixed by the Promotion committee the petitioner could get 4 marks for the service of more than 20 years and for confidential remarks in the character roll from 1988-86 to 89-90 she get 3 marks, total being 7 marks on the basis of marks obtained and accordingly, her position in the merit list came after Sl. No.42. No.42. It has further been pleaded that the petitioner is a candidate of unreserved quota and only 20 posts in that quota were available in the year 1992 for being filled by promotion. It is stated that although the Governnent has no difficulty in relaxing the excess period of one month than the prescribed age for appointment, but since the position of the petitioner does not come in between 1 to 20 in the merit list, her promotion to the post of Labour enforcement Officer is not possible even if her age limit is relaxed, 11. By order dated 5-7-93 a Division Bench of this Court directed the respondents to produce all the relevant records containing papers to demonstrate that the case of the petitioner was also considered by the Departmental promotion Committee as stated in the last supplementary counter affidavit. Accordingly, the records have been produced by the learned Standing Counsel no.3. 12. Learned Counsel for the petitioner has contended that the questions in this case are as to whether 1991 Rules (Annexure 3) Annexure A is applicable for promotion to the post of Labour Enforcement Officer, if not than whether the procedure adopted for consideration of the case for promotion treating the post to be selective post as per 1991 Rule can be sustained. It has also been contended that if the post is not selective post, then it has to be filled on the basis of seniority-cutn-merit, and the case of the petitioner was admittedly not considered on the plea that she was over age, when in fact, she was not so, either on the basis of the Government direction contained in annexure 4 which prescribes the maximum age limit as 45 years as in January, 1991 or when the process for promotion had begun first time in 1984 vide annexure 2. According to the learned Counsel for the petitioner, the entire process adopted for filling up the post of Labour Enforcement Officer by promotion was arbitrary and violative of the Articles 14 and 16 of the constitution of India. 13. According to the learned Counsel for the petitioner, the entire process adopted for filling up the post of Labour Enforcement Officer by promotion was arbitrary and violative of the Articles 14 and 16 of the constitution of India. 13. On the other hand, the learned Standing Counsel appearing for the respondents has submitted that the post in question is not a cadre post to be filled by way of promotion, but it is a case of fresh appointment through promotion from class III employees who possess requisite qualification on the date of appointment as, according to the Rule contained in the notification (Annexure 3) it is a selective post. Thus according to the learned Standing counsel, the posts in question have to be filled on the basis of merit-cum-seniority. 14. Learned Counsel submitted that the petitioner could not compete in merit as while judging the merit she got lesser marks than the persons, who according to the petitioner are juniors to her, she could not claim promotion to the post in question. 15. I have perused the relevant pages of the records, which have been flagged by the learned Counsel. It is true that from perusal of the said records it appears that after the aforementioned order dated 26-4-1994 by this Court, her case was considered and she has been awarded total 7 marks and accordingly, her position has been fixed in the merit list after Sl. No.42. I am unable to accept this new plea being taken by the respondents inasmuch as from the records it appears that the petitioner has not been awarded any mark for the year 1985-86 and 1986-87 on account of some adverse remarks when no such pleading has been pointed out by the learned Standing Counsel in any of the affidavits filed by the respondents that the said adverse remarks for the years 1985-86 and 1986-87 were over communicated to the petitioner and neither the said remarks has been pointed out by the learned Standing Counsel from the original records. Further the assertion of the petitioner made in paragrgph 7 that the controlling authority of the petitioner has given remarks in the Annual Character Roll as "excellent" has not been denied in the counter affidavit filed on behalf of the respondents. Further the assertion of the petitioner made in paragrgph 7 that the controlling authority of the petitioner has given remarks in the Annual Character Roll as "excellent" has not been denied in the counter affidavit filed on behalf of the respondents. Moreover, for the subsequent years also i, e.1987-88, 88-89 and 89-90 only one mark for each year has been awarded to the petitioner as it has been shown in the chart that she obtained only satisfactory remarks, when in fact, even those remarks have not been brought to my notice from the records of the case by the learned standing Counsel. As the fact was initially pleaded that the case of the petitioner was not considered along with others at the initial stage only on the ground of her being over age, it was the duty of the respondents to atleast bring those remarks on the record of the case on affidavit. That having not been done, in my opinion, it is difficult to accept that the authorities were justified in awarding total only 7 marks to the petitioner and thereby placing her below even the juniors, who were given promotion to the post of Labour enforcement Officer. In so far as the plea of the respondents that the petitioner was over age, I do not find any substance in the same, as even according to the circular issued on 29th June, 1991, as contained in Annexure 4 pursuant to 1991 Rules the maximum presscribed age limit was 45 years as on January, 1991. As the petitioner completed her 45 years of age on 5th January 1991 she could not be held to be not eligible for considerations of her cass for promotion as Labour Enforcement Officer. 16. Moreover, I find that long before framing of the Rule in the year 1991 the case of the petitioner was recommended for consideration of her promotion to the then post of Labour Inspector on 22-2-1984 on consideration of her service-fecords, vide Annexure 2, but the authorities for the reasons best known to them did not complete the process and thereby deprived the petitioner from the promotion to the said post, which was undisputedly meant to be filled by promotion on the basis of seniority-cum-merit and now as has been re-designated as Labour Enforcement Officer under ths aforesaid Rules as stated in paragraph 12 of the writ petition. 17. 17. Thus, in my opinion, the procedure adopted for consideration of the case of the petitioner for promotion to the post of Labour Enforcement officer can not be held to be fair Accordingly, the writ application is allowed and the respondents are directed to consider her case for promotion to the post of Labour Enforcement Officer with effect from 30-4-1992 when her juniors were promoted oq the said post afresh in accordance with law. In the circumstances however, there shall be no order as to costs. Application Allowed.