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2007 DIGILAW 114 (PAT)

Bindeshwari Prasad Sharma v. State Of Bihar

2007-01-16

BARIN GHOSH

body2007
Judgment 1. Question before me in this writ petition is whether the petitioner is entitled to exemption from appearing in the departmental examination in terms of the decision of the Government dated 15th May, 1992. What will be the consequence of such exemption is, however, not in issue in this writ petition and, accordingly, I have not applied my mind in relation thereto. 2. A bare look at the said decision of the Government would show that a person is entitled to exemption only upon attaining the age of 50 years. In order to have such exemption, such a person is required to continuously appear in such examination without success or within last five years before his attaining the age of 50 years, no examination had taken place. The said decision of the Government makes it abundantly clear that such exemption is optional and not compulsory. 3. In terms of the said decision, I would, therefore, logically conclude that a person, who has crossed the age of 50 years, is entitled to exercise option to seek exemption provided he has continuously tried to pass the examination but failed or no examination was held within last five years before his becoming 50 years of age. The moment such option is exercised, if the person concerned has satisfied the eligibility criteria, he is entitled to the same. 4. In the instant case, the petitioner became eligible to sit in the departmental examination in 1994. In the years 1994, 1995, 1996 & 1997, no examination was held. The examination was held in the year 1998 when the petitioner sat in the examination but failed. In the year 1999, no examination was held. On 29th November, 1999, the petitioner became 50 years old. In such view of the matter, before the petitioner became 50 years old, in the circumstances, he continuously tried to pass the examination but without any success. There is no dispute that the petitioner did exercise option to have exemption and, once he had exercised such option, the petitioner became entitled to have such exemption. 5. It has been contended in the counter affidavit that by reason of statutory rules made a person like the petitioner without passing the departmental examination cannot be promoted to the next higher post. 5. It has been contended in the counter affidavit that by reason of statutory rules made a person like the petitioner without passing the departmental examination cannot be promoted to the next higher post. That may be a good ground to deny promotion to the petitioner but that is no ground to refuse to give the petitioner exemption in terms of the said decision of the Government. 6. Be that as it may, there being no contention in the present writ petition that the petitioner is entitled to be promoted to the next Higher post, the above observations shall have no binding effect but it having been concluded that the petitioner is entitled to exemption, the decision not to exempt the petitioner is set aside with a direction upon the respondents to communicate to the petitioner that he has been exempted from appearing in the departmental examination in terms of the decision of the Government dated 15.05.1992. Let the same be communicated to the petitioner within a period of two months from today. 7. This disposes of the writ petition.