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2007 DIGILAW 540 (GAU)

Ashok Kumar Pandit v. Purabi Das & Ors.

2007-08-13

AFTAB H.SAIKIA, H.BARUAH

body2007
Affab H. Saikia, J 1. Heard learned counsel for the parties including the learned State Counsel representing the official respondents. 2. The legality and validity of the judgement and order dated 5.6.2007 passed by the writ court in W.P(C) No. 432 of 2003 has been assailed in this writ appeal by the appellant who has been arrayed as respondent No. 5 in the related writ petition. 3. Having considered the issue raised in this writ petition and also on close perusal of the impugned judgement and order as aforesaid, this writ appellate court proposes to dispose of this writ appeal finally today itself at the admission stage. 4. The cardinal issue posed in, this appeal is that whether quashment of the selection of the appellant/respondent No. 5 in the writ petition ('the appellant'), as published under the select list dated 12.12.2002 by the writ court on the basic plea of relaxation of age of the appellant effected by the competent authority, is permissible under the law when primarily no challenge as regards such relaxation of age has been made in the writ petition and the authority had acted, in relaxing the age, in terms of the guidelines so floated through the Office Memorandum dated 27.3.1980 and also supplementary Office Memorandum dated 4.1.1992 hereinafter called as "the O.M.". 5. On meticulous scanning of the materials available on record including the impugned Judgment and order it appears that initially when the appellant applied for the post of Legal Assistant to the Office of the Legal Remembrancer-cum-Secretary to the Govt. of Assam, Judicial Department in pursuance of the advertisement issued by the Assam Public Service Commission ('the APSC') on 11.9.2001, the Secretary to the Government of Assam, Judicial Department vide Office Order dated 25.9.2001 relaxed the upper age limit of the appellant in terms of the Office Memorandum dated 27.3.1980 and 4.1.1992. Accordingly he applied for the said post and he was found eligible after being interviewed by the APSC. The select list dated 12.12.2002 was notified by the APSC in this regard. Consequently he was recommended for appointment to such post by the APSC along with Respondent No. 1 in order of merit as follows: "Position SI. No. Name Category 1. 20 Ashok Kumar Pandit OBC 2. 4 Miss Purabi Kalita" 6. The select list dated 12.12.2002 was notified by the APSC in this regard. Consequently he was recommended for appointment to such post by the APSC along with Respondent No. 1 in order of merit as follows: "Position SI. No. Name Category 1. 20 Ashok Kumar Pandit OBC 2. 4 Miss Purabi Kalita" 6. Being aggrieved by such recommendation issued by the APSC, the respondent No. 1 who was placed at 2nd position as indicated above, moved the writ court by preferring the related writ petition. Her pleading, inter alia, was that the entire process of recommendation was made illegally and arbitrarily and the same was apparent on the face of the record as the age of the appellant was relaxed without any authority of law and also to the contrary to the terms and conditions put in the advertisement dated 11.9.2001. It was contended that basically the age of the respondent No. 1 was relaxed at the behest of respondent No. 4 in this writ appeal (respondent No. 3 in the writ petition) with whom respondent No. 1 developed a very good inter personal relationship due to his long association with respondent No. 4 in the process of rendering long years of service under him and who, also being a member of the Selection Committee, exerted his influence in selecting the respondent No. 1. 7. The official respondents including the respondent No. 5/appellant herein contested the writ petition by filing response refuting and rejecting all the contentions and submissions of the writ petitioner (appellant) made. 8. The learned writ court having scrupulously considered the pleadings so exchanged by and between the parties and also upon hearing the learned counsel for the parties as well as taking into account the legal aspect of th6 matter and also having been inspired by various judicial authorities of the Apex Court, arrived at the findings that the appellant was not qualified as he was over aged and the age relaxation made in favour of him was not in accordance with law because (i) the advertisement did not provide for any relaxation of age of such nature as done by the authority in the instant case and (ii) that the relaxation of age was done by way of unilateral process as the authority acted without having done any consultation with the APSC as required under the law. 9. 9. It would be necessary and appropriate to quote the Office Order dated 25.9.2001 passed by the concerned authority relaxing the age of the appellant as follows: "GOVT. OF ASSAM JUDICIAL DEPARTMENT: JUDICIAL BRANCH Dated, Dispur, the 25th September, 2001 OFFICE ORDER No. JDJ. 51/90/Pt-1/57: The upper age limit of Shri Ashok Kumar Pandit Language Officer, Legislative Deptt. of Assam Secretariat (C) beyond 36 years is hereby relaxed for the purpose of applying for the post of L.A. to L.R. & Under Secretary, of Assam Legal Service advertised by A.P.S.C. in terms of O.M. No. ABP. 513/79/9 dated 27.3.1980 and No. ABP.73/17 dated 4.1.1992. Sd./K.D.Phukan Secretary to the Govt. of Assam, Judicial Department." 10. It transpires from the perusal of the above office order dated 25.9.2001 that the upper age limit of the appellant beyond 36 years was relaxed only for the purpose of applying for the post as mentioned above in terms of the office-memorandum dated 27.3.1980 and 4.1.1992. It is also seen that the appellant was a departmental candidate as at the relevant time of applying for the post in question he was working as Language Officer, Legislative Department of Assam Secretariat (C). An ordinary reading of the Advertisement also does not indicate that age of the departmental candidate may be relaxed by the authority. Prescribed age of the said post as reflected in the advertisement is as under: "Age: 21 to 36 years of age as on 1.1.2001. Relaxable by 5 years for SC/ ST candidates." 11. It is not the case of the appellant that he belonged to SC/ST category of candidates. 12. Even from the perusal of the Office Memorandum dated 27.3.1980 so mentioned in the Office Order dated 25.9.2001 it would go to demonstrate that in terms of clause 1 O.M. dated 27.3.1980, relaxation of age limit was to be granted only in the interest of fair dealing or in the public interest. 13. If we take up language of the order dated 25.9.2001, it would candidly speak that the relaxation of such age was not made on the anvil of such fair play nor in the public interest. 14. Since the issue raised pertaining to relaxation of age, it would be pertinent to see Rule 15 of the Assam Legal Service Rules, 1962 ('the Rules') which provides for power on relaxation as under: "15. Power of Relaxation. 14. Since the issue raised pertaining to relaxation of age, it would be pertinent to see Rule 15 of the Assam Legal Service Rules, 1962 ('the Rules') which provides for power on relaxation as under: "15. Power of Relaxation. - For the purpose of removing any difficulty in the implementation of these rules, it will be within the discretion of the Governor to relax to any of these rules to resolve the said difficulty." 15. The Office Order dated 25.9.2001 did not exhibit that the same was passed within the discretion of the Governor. 16. Mr. Sarma, learned senior counsel representing the appellant has forcefully submitted that a conjoint reading of this rule along with the office memorandum as indicated above so relied upon by the competent authority in relaxing the age of the appellant, would go to indicate that the authority is permitted under the law to relax the age of the appellant and as such there is no illegality, arbitrariness or any discrimination in recommending the name by the APSC of the appellant putting him in first position relaxing his age of 8 (eight) years because at the time of making application for appointment to such post the appellant was admittedly above 44 years of age; meaning thereby he was overaged by 8 years taking upper age limit of 36 years as reflected on the advertisement itself. 17. Now let us see the condition prescribed in the advertisement itself. The advertisement dated 11.9.2001 as already noted abvoe, would indicate that the age for the post of Law Assistant was prescribed in between 21 years to 36 years and the same can be made relaxable by 5 (five) years in case of SC/ST candidates. Beyond that there was no whisper as regards any provision for relaxation of age for any other candidate. 18. In the instant case, the upper age limit of the appellant beyond 36 years was relaxed by the officer concerned only in terms of Office-Memorandum dated 27.3.1980 and 4.1.1992 as indicated above. Nevertheless, the Office Order above mentioned cannot be permitted to bypass the Rules framed under article 309 of the Constitution of India as indicated above wherein it has been categorically provided that any difficulty in the implementation of the rules shall be removed only by the Governor in his discretion and the same, ex-facie did not happen in this case. Nevertheless, the Office Order above mentioned cannot be permitted to bypass the Rules framed under article 309 of the Constitution of India as indicated above wherein it has been categorically provided that any difficulty in the implementation of the rules shall be removed only by the Governor in his discretion and the same, ex-facie did not happen in this case. The order of relaxation of age has not been passed by the Governor in his discretion as it has been revealed on the face of it. 19. Mr. Sarma, learned senior counsel to substantiate his submission as already indicated above, has drawn attention of this Writ Appellate Court to a decision in a case of Union of India and Others v. Shivbachan Rai reported in (2001) 9 SCC 356 . Relying on paragraph 6 of the said decision, he has submitted that the authority is empowered to make any relaxation at anytime if in the opinion of the authority, the same needs to be done in the public interest or in fair play. 20. The peculiar facts and circumstances so pleaded in this case do not persuade us to apply the ratio of the cited case and accordingly we are of the considered view that the ratio decided in paragraph 6 of the above Apex Court decision is not applicable in the instant case. 21. In the case in hand, it is apparent on the face of the order dated 25.9.2061 itself that the same was not passed in terms of rule 15 of the Rules and even the said order was not issued in the public interest or in the fair dealing as provided in the office memorandum dated 27.3.1980 relied upon by the competent authority. 22. As regards relaxation of age it is settled that age relaxation cannot be granted automatically and the authorities are required to apply their mind while exercising power to relax the age limit and also the power of relaxation is intended to be used in marginal cases where exceptionally qualified candidates are not available and it is not an "open sesame" available for all and sundry (See: Kendriya Vidyalaya Sangathan v. Sajal Kr. Roy and Others (2006) 8 SCC 671 and FCI v. Bhanu Lodh AIR 2005 SC 2775). 22. Roy and Others (2006) 8 SCC 671 and FCI v. Bhanu Lodh AIR 2005 SC 2775). 22. In view of what has been discussed and observed above, this court is of the considered view that there is no merit in this writ appeal. We are in full agreement with the views expressed in the impugned judgment and accordingly the impugned judgment and order stands affirmed. 23. In the result, this Writ Appeal fails and stands dismissed. No costs.