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2009 DIGILAW 150 (CAL)

Saiyed Julfikar v. Raghav Chandra Deshmukh

2009-02-25

D.P.SENGUPTA, DEBASISH KAR GUPTA

body2009
Judgment : DEBASISH KAR GUPTA, J. (1) This appeal is filed assailing the order dated August 26, 2005 passed in W. P. No.13088(W) of 2004. By virtue of the aforesaid judgment and order, the appointment of respondent no.6 to the post of peon in Group "D" in Shyampur-II Panchayet Samiti was cancelled. Direction was also given to re-advertise the above post. (2) The fact of the case in a nut shell, as brought on record in the writ application, were as follows:- (i) The Recruitment Rules for appointment of Peon, Clerk-cum-Typist and Upper Division Assistants in Panchayet Samities in the State of West Bengal was framed by government order issued under memo no.4405/PN/N/III/2E-49/98 dated December 4, 1998(hereinafter referred to as the said Recruitment Rules), in supersession of earlier orders issued in this regard. The age limit for appointment of Peon (Group "D" employee) was fixed from 18 to 37 years, upper age limit being relaxable in case of Scheduled Castes, Scheduled Tribes, other Backward Classes and exempted categories of candidates as per Rules and Orders of the Government in the Labour Department and Backward Classes, Welfare Department, as the case may be. (ii) On December 20, 1999 a requisition was sent to the Employment Officer-incharge, Uliberia, Howrah by the respondent no.4 to sponsor names of suitable candidates to fill up one peon(Group "D" employee) of Shyampur-II Panchayat Samiti, District Howrah. On March 3, 2000 the above employment exchange sent the names of 20 eligible candidates in compliance of above requisition. (iii) The appellant filed an application under Article 226 of the constitution being W.P.No.8864(W) of 2000(AST 1974 of 2000). An interim order dated May 24, 2000 was passed in the above writ application allowing the appellant to take part in the selection process for appointment of Peon (Group "D" Employee) under the aforesaid Panchayet Samiti along with other eligible candidates provided the appellant fulfilled the eligibility criteria including age and education. The above order dated May 24, 2000 is quoted below: "A.S.T. 1974/2000 HIGH COURT AT CALCUTTA CIVIL APPELALTE SIDE. W.P.8864(W) of 2000. In the matter of : Sayed Julfikar. Petitioner. Versus. For petitioner Mr. Alamgir Khan. Opposite party. Mrs. Jayanti Dhar Kader For State. Noting by office or Serial No. Date Office notes, reports, orders or proceedings with signatures. The above order dated May 24, 2000 is quoted below: "A.S.T. 1974/2000 HIGH COURT AT CALCUTTA CIVIL APPELALTE SIDE. W.P.8864(W) of 2000. In the matter of : Sayed Julfikar. Petitioner. Versus. For petitioner Mr. Alamgir Khan. Opposite party. Mrs. Jayanti Dhar Kader For State. Noting by office or Serial No. Date Office notes, reports, orders or proceedings with signatures. Advocate 24.5.2000 In view of the urgency as pleaded in the petition, requirement of Rule 27 of the Writ Rules be dispensed with. Let this matter appear before the appropriate regular Bench one week after the Summer Vacation. Meanwhile, the petitioner shall be allowed to take part in the interview along with other eligible candidates provided the petitioners fulfils the eligibility criteria including age and education. The petitioner will be entitled to appear at the interview along with other eligible candidates even without his name being sponsored by the Employment Exchange. The petitioner is directed to serve copies of this writ application upon the Respondent sand shall file an Affidavit of Service on the next date of hearing. In default thereof, the interim order will stand vacated. If any benefits is derived in terms of this order, this interim order will stand set aside and/or cancelled. The respondents are given liberty to apply for vacation and/or variation of this order upon notice to the petitioners. (K. J. SENGUPTA, J.)" (iv) The respondent no.4 by a communication issued under memo no.701(50) dated June 15, 2000 allowed the appellant to appear at the examination centre in connection with selection process for appointment of peon (Group-D employee) in the aforesaid Panchayat Samiti of Shyampur-II Panchayat Samiti office on July 8, 2000 at 12 noon subject to production of true copies of testimonials including school leaving certificate, original certificates and Employment Exchange Card, Admit Card, Marksheet. The appellant was further directed to produce the certified copies of order dated May 24, 2000 passed in AST 1974/2000. (v) The respondent no.4 issued a further communication to the appellant under memo no.698 dated June 16, 2000 asking him to submit documents relating to the age of the appellant to the respondent no.4 within June 27, 2000. The reason as disclosed in the above communication was that the date of birth of the appellant being February 3, 1998, he had attained the age of 41 years 10 months and 5 days on December 8, 1999. The reason as disclosed in the above communication was that the date of birth of the appellant being February 3, 1998, he had attained the age of 41 years 10 months and 5 days on December 8, 1999. But the permissible age limit for participating in the selection test for the post under reference was from 18 upto 37 on December 8, 1999. (vi) The selection test in connection with the above recruitment process took place on July 8, 2000. The appellant was allowed to participate in the above selection test along with other eligible candidates. (vii) On September 15, 2000, it was resolved in the meeting of the Block Level Selection Committee for appointment of Peon (Group-"D" employee) under the Shyampur-II Panchayat Samiti, District-Howrah (hereinafter referred to as the said Panchayat Samiti) that the following candidates had secured first five positions in order of their performance in the written test: 1. Sk. Mahabub Alam, 2. Sisir Kumar Hazra, 3. Subrata Kumar Adhakari, 4. Raghab Chandra Deshmik(respondent no.1), 5. Sayed Julfikar (the appellant). By virtue of the above resolution dated for viva voce test was fixed on September 25, 2000 at 12 noon. It is pertinent to mention here that from the minutes of the above resolution dated September 15, 2000 it is revealed that the respondent no.7 being the Sabhapati of the said Panchayat Samiti and the Ex-officio Chairman of the above selection committee was absent in that meeting. The Saha-Sabhapati namely Shri Vim Charan Mandal of the said Panchayat Samiti took the chair for presiding over the above meeting. (viii) In the meeting dated September 25, 2000 of the above Block Level Selection Committee of the said Panchayat Samiti a panel for selected candidates was prepared in order of merit as follows: (1) Sayad Julfikar(the appellant), (2) Sk. Mahabub Alam, (3) Subrata Adhikari) (ix) On September 29, 2000 the appellant was appointed to the above post of Peon(Group-D employee) under the said Panchayat Samiti. (x) On August 27, 20002 the respondent no.1 lodged complaints to the District Magistrate, Howrah (at page 53 in the paper book) and to the respondent no.4 (at page 55 in the paper book) respectively with regard to the consideration of the name of the petitioner for appointment in the post of Peon (Group "D" employee) under the said Panchayat Samiti) under exempted category. (xi) Thereafter, the respondent no.1 filed an application under Section 19 of the Administrative Tribunals Act, 1985 being NO. OA-1 333/2002 for cancelling the appointment of the appellant in the post of Peon (Group "D" employee) under the said Panchayat Samiti. By an Order dated June 15, 2004 the above application was dismissed with liberty to the respondent no.1 to approach the appropriate forum to agitate his grievance. (xii) During the pendency of the above application being case no.OA-1333/2002 the services of the appellant in the post under reference was made confirmed by the respondent authority by an order dated September 29, 2003. (xiii) Thereafter, the respondent no.1 filed the writ application being W. P. No.13088(W) 2004 which gives rise to the instant appeal. (3) The above writ application was disposed of by an order dated August 26, 2005 cancelling the appointment of the appellant to the post of Peon(Group "D" employee) under the said Panchayat Samiti as also directing the respondents to re-advertise the post. (4) It is submitted on behalf of the appellant that the post under reference was earmarked for the candidates under general category. But the appellant was entitled to get the benefit of age relaxation in accordance with the provisions of the said Recruitment Rules dated December 4, 1998. According to the provisions of the said Recruitment Rules, the upper age limit of the candidates belonging to the exempted category could be relaxed as per Rules and Orders of the Government in the Labour Department and Backward Classes, Welfare Department, as the case might be. The appellant was given relaxation of age limit in accordance with the provisions of notice issued by the Director of Employment Exchange, West Bengal, under his memo no.3E78/2000/2993-36205 dated February 16, 2000 (at page 298 in the paper book). According to the appellant he was entitled to get age relaxation of three years and service period of Ex-census employee in addition to usual age relaxation up to 45 years of age. According to the appellant the material date was March 3, 2000 which should be taken into consideration for calculating the age of the eligible candidate for participating in the selection process under reference being the date of sponsoring the names of the eligible candidates by the concerned Employment Exchange. According to the appellant the material date was March 3, 2000 which should be taken into consideration for calculating the age of the eligible candidate for participating in the selection process under reference being the date of sponsoring the names of the eligible candidates by the concerned Employment Exchange. Drawing our attention to the Identity Card issued by the concerned Employment Officer on June 23, 2000, it is submitted on behalf of the appellant, that the name of the petitioner was registered with the concerned Employment Exchange under the exempted category of Election Job Worker. Therefore, there was no irregularity on the part of the respondent authority to allow the appellant to participate in the selection process under reference. (5) It is submitted on behalf of the appellant that after sponsoring the names of 20 candidates by the concerned Employment Exchange on March 3, 2000 as eligible candidates to participate in the selection process under reference, the appellant obtained an order dated May 24, 2000 in AST No.1974 of 2000 (W.P. no.8864(W) of 2000). Pursuant to the above order the appellant was directed by the respondent no.4 to produce documents in support of his eligibility to participate in the selection process under reference. The appellant produced all relevant documents including the Identity Card dated June 23, 2000 before the Selection Committee on the date of written test on July 8, 2000. After being satisfied with regard to the eligibility of the appellant so far as his age was concerned giving relaxation of upper age limit in accordance with the provisions of notice dated November 16, 2000, he was allowed to participate in the written test. The date of birth of the appellant being February 3, 1958, he was well within the eligible age limit to participate in the above selection process taking the material date of calculating the age as on the date of sponsoring the name of eligible candidates by the concerned Employment Exchange on March 3, 2000. According to the appellants, the learned Single Judge was in error in holding that the appellant was not within permissible age limit to take part in the selection process under reference. According to the appellants, the learned Single Judge was in error in holding that the appellant was not within permissible age limit to take part in the selection process under reference. (6) With regard to the allegation of bias on the part of the respondent authorities in selecting the appellant for appointing in the said post, it is submitted that it was a fact that the respondent no.7, being the wife of the appellant was the Sabhapati of the said Panchayat Samiti at the material point of time. But the allegation of bias on that ground was not agitated by the respondent no.1 at the earliest available opportunity. Though the respondent no.1 submitted his complaint to the District Magistrate, Howrah as also to the respondent no.4 on August 27, 2002, the allegation of bias was not raised in the above complaint. (7) It is also submitted on behalf of the appellants that the respondent no.1 participated in the written test on July 8, 2000 and in the interview on September 25, 2000. The appellant was appointed in the post under reference on September 29, 2000 on probation. But the respondent no.1 lodged his complaints before the above authorities on August 27, 2002, i.e. after one year and 11 months without raising the complaint of bias. So, it was a calculated chance taken by the respondent no.1 being an unsuccessful candidate and that too at a belated stage. Therefore, the Learned Single Judge was in error in entertaining such allegation at the instance of the respondent no.1. (8) However, with regard to the allegation of bias, it is submitted on behalf of the appellant on merit that as soon as the respondent no.7 came to know that the appellant had been participating in the selection process under reference, she withdrew herself from the selection process under reference. Attention of this court is drawn towards the minutes of meetings dated December 15, 2000 and September 25, 2000 of the Block Level Selection Committee to show that the respondent no.7 did not participate in those meetings. (9) It is further submitted that the appointing authority in the post under reference was the respondent no.4 and as such the letter of appointment dated September 29, 2000 was issued to the appellant by the respondent no.4. (9) It is further submitted that the appointing authority in the post under reference was the respondent no.4 and as such the letter of appointment dated September 29, 2000 was issued to the appellant by the respondent no.4. It is further submitted that the recommendation of the above Selection Committee was placed before the Artha Sanstha Unnyan-O- Parikalpana Stheyee Samiti of the said Panchayat Samiti and the above Samiti adopted a resolution in its meeting dated September 28, 2000 to appoint the appellant in the post under reference. The respondent no.7 had no role to play so far as the above resolution was concerned. The appellant is appointed on the basis of the above resolution. (10) According to the appellant it is not enough to plead the allegation of mala fide or bias. But according to the settled principle of law such allegation has to be proved by the person who alleges the same. According to the appellant the learned Single Judge was misdirected in applying the above settled principles of law taking into consideration the admitted facts and circumstances and came to the conclusion that the allegation of bias was proved. Relying upon the decisions of the State of Haryana Vs. Anurag Srivastava, reported in (1998) 8 SCC 399 , Utkal University Vs. Nrusingha Charan Sarangi(Dr.), reported in (1999) 2 SCC 193 , Bhupinderpal Singh Vs. State of Punjab, reported in (2000) 5 SCC 262 , Rajasthan Public Service Commission Vs. Kaila Kumar Paliwal, reported in (2007) 10 SCC 260 , and Ashok Kumar Sonkar Vs. Union of India, reported in (2007) 4 SCC 54 , it is submitted on behalf of the appellants that in absence of any provision in the Recruitment Rules, the last date of submission has to be taken as cut off date for calculating the age of a candidate participating in a selection process. Relying upon the decision of Snehansu Jas Vs. State of West Bengal, reported in 2001 (3)CHN 313 , it is further submitted on behalf of the appellant that date of interview is the date of initiation of a selection process. The decision of E.P. Royappa Vs. State of Tamil Nadu reported in AIR 1974 SC 555 , Ashok Kumar Yadav Vs. State of Hariyana, reported in (1985) 4 SCC 417 , State of Punjab Vs. V. K. Khanna, reported in AIR 2001 SC 343 , Indian Railway Construction Co. The decision of E.P. Royappa Vs. State of Tamil Nadu reported in AIR 1974 SC 555 , Ashok Kumar Yadav Vs. State of Hariyana, reported in (1985) 4 SCC 417 , State of Punjab Vs. V. K. Khanna, reported in AIR 2001 SC 343 , Indian Railway Construction Co. Ltd., reported in 2003(4) SCC 579 are relied upon to submit that proof of real likely hood of mala fide is the yardstick to determine the allegation of bias. Relying upon the decisions of U. D. Lama Vs. State of Sikkim, reported in (1997) 1 SCC 111 , Trivedi Himanshu Ghanshyambhi Vs. Ahmedabad Municipal Corporation reported in (2007) 8 SCC 644 , Madan Lal and Ors. Vs. State of J. and K. and Ors., reported in 1995(3) SCC 486 and Chandra Prakash Tiwari and Ors. Vs. Shakuntala Shikla and Ors. , reported in AIR 2002(SC) 2322 it is submitted on behalf of the appellants that the allegation of bias has to be raised at the threshold and an unsuccessful candidate has no lucus Standi to challenge the selection process. (11) It is submitted on behalf of the respondent No.7 that the notice dated February 16, 2000 was issued by the Director of Employment Exchange for registration of the names belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes, Physically handicapped and candidates under exempted categories giving age relaxation. Since the purpose of registering the name with the employment exchange was to get employment, the above notice was applicable in case of allowing the appellant in the selection process under reference. With regard to the real likelihood of bias, it is submitted that in the affidavit-in-opposition it was stated that she had restrained herself from participating in the selection process on and from May 24, 2000. (12) It is also submitted that the allegations of directing the appellant to obtain an order from the Court to participate in the selection process or not to take steps to vacate the interim order which was passed in A.S.T. No.1764 of 2000, are based on no evidence. The respondent no.1 was under obligation to prove those allegation before the learned Single Judge. But the respondent no.1 failed to prove those allegations before the learned Single Judge. The respondent no.1 was under obligation to prove those allegation before the learned Single Judge. But the respondent no.1 failed to prove those allegations before the learned Single Judge. It is also submitted that the respondent no.4 took all steps in the matter of selection process under reference, namely sending of requisition to the concerned employment exchange to sponsor the names of eligible candidates, issuing letters to the eligible candidates to participate in the written test and viva-voce test, issuing letter of appointment to the appellant. So, the respondent no.7 did not play any role in selecting the appellant. That apart, there was no allegation in the writ petition under reference that the other members of the selection committee and the appointing authority were biased. (13) It is further submitted on behalf of the respondent No.7 that the filing of the writ application under reference was an example of initiation of a legal proceeding by an unsuccessful candidate at a belated stage after taking a calculated chance by participating in the selection process. (14) Relying upon the decisions of Secretary to the Government, Transport Department, Madras Vs. Munuswamy Mudeliar, reported in 1988(supp) SCC 651 and Union of India Vs. Bikash Kumar, reported in 2006 AIR SCW 5436, it is submitted on behalf of the respondent No.7 that reasonable evidence of real bias is required to prove the allegation of bias and that onus lies upon the person who raised that allegation. Relying upon the decisions of Dr. G. Sarana Vs. University of Lucknow, reported in (1976) 3 SCC 585 and Jaswant Sing Nerwal Vs. State of Punjab reported in 1991 (supp) 1 SCC 313, it is submitted that initiation of a proceeding by an unsuccessful candidate is a calculated chance and such attempt is not permissible. Reliance is placed on the decisions of Regional Manager, A. P. SRTC Vs. N. Satyanarayana, reported in (2008) 1 SCC 210 to submit that delay defits equity in connection with an allegation of bias. Reliance is placed on the decisions of Regional Manager, A. P. SRTC Vs. N. Satyanarayana, reported in (2008) 1 SCC 210 to submit that delay defits equity in connection with an allegation of bias. It is submitted on behalf of the respondent no.1/writ petitioner that in accordance with the provisions of said Recruitment Rule dated December 4, 1998 the eligibility criteria of age group for the post under reference was 18 to 37 and relaxation was permissible as per rules and orders of the Government in Labour Department and Backward Classes, Welfare Department, as the case may be, in case of a Scheduled Castes or Scheduled Tribes or other Backward Classes or exempted category of candidates. (15) The attention of this court is drawn to the orders issued under memo no.3704F dated April 12, 1982 and memo no.2498A dated March 10, 1986 to submit that the above Government orders were applicable in case of the appellant/respondent no. 6 to get age relaxation the appellant was entitled to the age relaxation of three years plus the period for which he had worked as election job worker. Therefore, assuming that the age relaxation was given to the appellant in accordance with the above provisions then 3 years 10 months relaxation could be added to the upper age limit of 37 years. On the basis of the above calculation the appellant had crossed the upper age limit on about December 3, 1998 in accordance with the said Recruitment Rules. According to the respondent no.1, the notice dated February 16, 2000 was issued by the Director of Employment, West Bengal, for the purpose of granting age relaxation to the Scheduled Caste, Scheduled Tribe, Other Backward Classes, Physically Handicapped and Ex-census employees for the purpose of registration of their names with the Employment Exchange. (16) According to the respondent no.1 that was not relevant for calculating the age of the appellant to consider his eligibility for taking part in the selection process under reference. The next limb of submission of the respondent no.1 is that the interim order dated May 24, 2000, which had been passed in the writ application being A.S.T. No.1974 of 2000 (W.P.8864(w) of 2000), was not in existence when the respondent authority allowed the appellant to participate in the selection process under reference on May 24, 2000. The next limb of submission of the respondent no.1 is that the interim order dated May 24, 2000, which had been passed in the writ application being A.S.T. No.1974 of 2000 (W.P.8864(w) of 2000), was not in existence when the respondent authority allowed the appellant to participate in the selection process under reference on May 24, 2000. While passing the interim order the court directed that the matter would appear before the appropriate bench one week after summer vacation. According to the respondent no.1, the term "in the mean time" was mentioned in the above matter to mean the intervening period in between the date of the order and the next date which had been fixed for taking up the above writ application. According to the respondent no.1, that interim order had expired before the petitioner was allowed by the respondent authority to take part in the selection process. (17) It is submitted on behalf of the respondent no.1 that the appointment of the appellant to the post under reference was a case involving real likelihood of bias. According to the respondent no.1, the respondent no.7 was the Sabhapati of the said Panchayat Samiti at the material point of time and she was holding the office of the Ex-officio Chairman of the Selection Committee. The appellant obtained an order in a writ application being A.S.T No.1974 of 2000. A communication was issued to the appellant on June 16, 2000 directing him to produce the relevant records and documents in support of his age to substantiate his eligibility to participate in the selection process under reference. According to the respondent no.1, since the interim order was not in existence at that material point of time, it was a colourable exercise of power to ask him to produce those documents. (18) That apart, according to the respondent no.1, nothing appears from the record to show that steps were taken to vacate the above interim order with a view to conduct the selection process in accordance with the provisions of Recruitment Rules. (19) It is further submitted on behalf of the respondent no.1 that no record was produced before the learned Single Judge to show that the case of the appellant was considered in accordance with the notice dated February 16, 2000 which had been issued by the Director of Employment, West Bengal. (19) It is further submitted on behalf of the respondent no.1 that no record was produced before the learned Single Judge to show that the case of the appellant was considered in accordance with the notice dated February 16, 2000 which had been issued by the Director of Employment, West Bengal. (20) The attention of this court is drawn towards the affidavit-in-opposition affirmed by the respondent no.7, i.e. the wife of the appellant (paragraph 4 of the affidavit-in-opposition) to show that the respondent no.7 was holding the post of Chairman of the Selection Committee under reference at the initial stage. She only restrained herself from attending the meeting and/or action of the Selection Committee from the moment the appellant had been allowed to participate in the selection process pursuant to the order dated May 24, 2000 passed in A.S.T. No.1974 of 2000. It is submitted on behalf of the respondent No.1 that the above action of the respondent was not enough to withdrew herself from the selection process under reference. (21) Relying upon the decision of Calcutta Municipal Corporation Teacher Association Vs. Calcutta Municipal Corporation, reported in 1993(11) CHN 1444 it is submitted on behalf of the respondent no.1 that phrase in the mean time means and purports" during or within the time which intervenes. Relying upon the decisions of Ashok Kr. Yadav Vs. State of Haryana, reported in (1985) 4 SCC 417 , Badrinath Vs. Government of Tamil Nadu, reported in (2000) 8 SCC 395 , Punjab State Electricity Board Vs. Jarasingh, reported in AIR 2006 SC 182, Regional Manager, Vs. Pawan Kr. Dubey, reported in AIR 1976 SC 1766 and Fakruddin Vs. Principal, Consolidation Training Institute, reported in 1995(4) SCC 538 it is submitted on behalf of the respondent no.1 that the learned Judge was correct in holding that the appointment of the appellant had been vitiated due to real likelihood of bias. Relying upon the decision of District Basic Education Officer Vs. Dhananjai Kumar Shukla, reported in (2008) 3 SCC 481 it is submitted that the appointment of the appellant to the post under reference was per se illegal and the learned Single Judge was correct in setting aside the appointment. (22) We have heard the learned Counsels appearing for the respective parties and have taken into consideration the facts and circumstances of the case. (22) We have heard the learned Counsels appearing for the respective parties and have taken into consideration the facts and circumstances of the case. It is an admitted fact that the appointment to the post of Peon (Group "D" employee) under ShyampurII Panchayet Samiti was given to the appellant considering his candidature along with other candidates who had been sponsored by the concerned Employment Exchange. It is not indispute that the said Panchayet Samiti followed the Recruitment Rules dated December 4, 1998 (at page 30 to the paper book). In order to adjudicate the question of eligibility of the appellant with regard to his age, the learned Single judge took into consideration the provisions of Clause III(d) of the said Recruitment Rules are quoted below: "III. Peon(Group D Employee) (a) . (b) . (c) . (d) 18 to 37 years, upper age limit relaxable in the case of Scheduled Castes, Scheduled Tribes, Other Backward Classes, and exempted categories of candidates as per rules and orders of the Government in the Labour Department and Backward Classes Welfare Department, as in the case may be." (23) With regard to question of material date which could be taken into consideration for calculating the age, we find that according to the appellant the date of sponsoring the names by the Employment Exchange should be the cut off date. Since the post was not advertised inviting applications, the date of sponsoring the name by the concerned Employment Exchange was the first opportunity for a person to come to know as to whether his name was sponsored or not. Therefore, we find substance in the submissions made on behalf of the appellant that the same should be the material date for calculating the date of eligible candidates where the employment exchange was asked to sponsor the names. (24) Now comes the question of age relaxation which could be given to the appellant for allowing him to participate in the selection process under reference. We find substance in the submissions made on behalf of the respondent no.1 that the Government orders issued under memo nos. 3704-F dated April 12, 1982 and 2498-F dated March 10, 1986 were relevant for giving age relaxation to the appellant. We find substance in the submissions made on behalf of the respondent no.1 that the Government orders issued under memo nos. 3704-F dated April 12, 1982 and 2498-F dated March 10, 1986 were relevant for giving age relaxation to the appellant. In order to adjudicate the decision making process of the respondent authority to allow the appellant to participate in the selection process, the above Government orders are quoted below:- "Government of West Bengal Finance Department MEMORANDUM No.3704-F Date: 12.4.82 Government have had under consideration for some time past the question ofallowing relaxation of upper age limit to the discharged state Government employees for appointment to Non-P.S.C posts and services under this Government. (25) After careful consideration of the matter in all its aspects, the Governorhas been pleased to decide that in respect of the post and services under thisGovernment appointment to which are made otherwise than on the basis of opencompetitive tests hold by the public service commission who was in the employment under this State Government for a continuous period of not less thansix months and who was discharged otherwisethan on reaching the age of superannuation on completion of the period of service prescribed for retirementand as a result either of reduction of establishment in an office or of the office itself being would up, may be deducted from his actual age and if theresultant does not exceed the prescribed maximum age limit for these posts bymore than 3 years he shall be deemed to satisfy the conditions in respect of themaximum age. Sd/- G. Venkataraman Secretary to the Govt. of West Bengal No. 2498-F Dated: Kol. The 10th Mrch86 MEMORANDUM Government have had under consideration for some time past the question ofraising the upper age limit in respect of 9a) the regular ex-census employees of1981 Census, (b) the Election Job Workers/Enumerators and 9c) candidates frommartyrs; families for the purpose of appointment to the Non-P.S.C. posts of this Government. 2. After careful consideration of the matter in all its aspects, theGovernor has been pleased to decide that relaxation of upper age limit for entryinto service under this Government may be allowed to (a) the regular Ex-Census employees of 1981 Census who have put in at lease six months continuous service under the Directorate of Census operations, West Bengal, and (b) the ElectionJob-Workers/ Enumerators covered by labour Deptt. Memo No.300 EMP dtd. Memo No.300 EMP dtd. 13.5.85in the same matter as allowed to the discharged State Government employees underFinance Department Memo No. 3704-F dtd. 12.4.82. 3. The Governor has also been pleased to decide that the members of Martyrsfamilies as already included in the exempted categories for employmentunder the State Government vide Labour Department Circular No.512C(60) L.W. dt. 17.10.77 subsequently modified may be allowed relaxation of upper age limit forappointment to non-P.S.C. posts under this Government provided such relaxationshall not exceed the maximum limit of three years. 4. The Governor has been further pleased to direct that none of the groupswithin exempted category "for employment should get the benefit of relaxation ofupper age limitations indicated in para 2 and above, more than one. Sd/-P. K. Sarkar Secretary to the Government ofWest Bengal." On the basis of the above Government orders three years could be added to the age of the appellant as election job worker apart from 10 months of his working as election job worker. Therefore, in order to get the benefit of age relaxation, the appellant should have been 40 years and 10 months old on the date of receipt of the requisition from the concerned Employment Exchange, i.e. on March 3, 2000. But the age of the appellant on that date was 42 years and 1 month. Therefore, the decision to allow the appellant to participate in the selection process was liable to be set aside and the decision of the learned Single Judge on this issue does not require interference. (26) We do not find substance in the submissions made on behalf of the appellants that the notice dated February 16, 2000 waps applicable in the instant case. Admittedly, the same was not a Government order. Rather the above notice dated February 16, 2000(at page 298 of paper book) was issued by the Director of Employment Exchange, West Bengal as a departmental circular for guidance of all Regional Deputy Directors of Employment and all Employment Officers-in-Charge for the purpose of giving age relaxation to the candidates belonging to Scheduled Castes and Scheduled Tribes, Other Backward Classes, Physically Handicapped Candidates and Ex-Census candidates at the time of registering their names with the Employment Exchange. As we know that the employment exchanges could sponsor the names of candidates who were eligible in accordance with the provisions of Recruitment Rules as concerned, we do not find that the above notice or departmental circular was applicable in the instant case. With regard to the question of likelihood of bias, we find that the Learned Single Judge took the following facts into consideration to adjudicate that issue. (i) The respondent no.7 was the wife of the appellant (ii) The respondent no.7 was Ex-officio Chairman of the selection committee under reference. (iii) There was no definite indication or any proof as to from which stage the respondent no. 7 withdrew herself from the selection process under reference. (iv) No material on record was available to show that the respondent no.7 withdrew herself from the above selection process at any time from the time of sending requisition to the concerned employment exchange in the month of December 1999 and up to the time of preparing the list of five candidates for placing the same in the meeting of the selection committee on September 15, 2000. (v) From the statements made in sub-paragraph(f) of paragraph 4 of the affidavitinopposition affirmed by the respondent no.7, it appeared that she restrained herself from attending any meeting or action of the selection committee from the moment the name of the appellant had been surfaced for consideration as a candidate in the post under reference. (27) In the instant case the respondent no.7 claimed that she had restrained herself from participating in the selection process from the time of participation of her husband in that process as one of the candidates. But nothing appears from the materials on record that she brought the fact of her relationship with the appellant or she withdraw herself from the selection process on that ground. Mare absence from a meeting and maintaining silence with regard to the reason restraining herself from participating in the selection process could not be equated with her disassociation with the selection process altogether. In the matter of Javid Rashool Bhat Vs. State of Jammmu and Kashmir, reported in (1984) 2 SCC 631 , the Honble Supreme Court held that the reasonable likelihood of bias was not proved. In the matter of Javid Rashool Bhat Vs. State of Jammmu and Kashmir, reported in (1984) 2 SCC 631 , the Honble Supreme Court held that the reasonable likelihood of bias was not proved. To come to that conclusion the Honble Supreme Court took into consideration the fact that the father of a candidate had disassociated herself from the selection committee disclosing his relationship with that candidate to the other members of that selection committee has also by bringing that fact on record. For proper adjudication of our case the relevant of the above decision are quoted below:- 13. We finally come to the submission on which Shri Anil Dev Singh laid considerable emphasis, namely, that the entire selection was vitiated by the presence on the Selection Committee of the father of one of the candidates. This was said to be a gross violation of one of the principles of natural justice. The grievance is not real. The Principal of Medical College, Srinagar, whose daughter was a candidate for admission to the Medical College informed the Selection Committee at the very outset about this fact and told them that he would not have anything to do with the written test and would not be present when his daughter was interviewed. The other members of the Selection Committee accepted the suggestion of the Principal and did not think it necessary to address the Government to appoint a substitute member of the Selection Committee since the Government had fixed the quorum for a meeting of the Selection Committee as the Chairman and one other member and it was possible to have a quorum without the Principal of the Medical College, Srinagar. The procedure adopted by the Selection Committee and the member concerned was in accord with the quite well known and generally accepted procedure adopted by the Public Service Commissions everywhere. It is not unusual for candidates related to members of the Service Commission or other Selection Committee to seek employment. Whenever such a situation arises, the practice generally is for the member concerned to excuse himself when the particular candidate is interviewed. It is not unusual for candidates related to members of the Service Commission or other Selection Committee to seek employment. Whenever such a situation arises, the practice generally is for the member concerned to excuse himself when the particular candidate is interviewed. We notice that such a situation had also been noticed by this Court in the case of Nagarajan v. State of Mysore where it was pointed out that in the absence of mala fides, it would not be right to set aside the selection merely because one of the candidates happened to be related to a member of the Selection Committee who had abstained from participating in the interview of that candidate. Nothing unusual was done by the present Selection Committee. The girls father was not present when she was interviewed. She was one among several hundred candidates. The marks obtained by her in the written test were not even known when she was interviewed. And, in fact, we find that as a result of her performance at the interview, she lost rather than gained some places. 14. Great reliance was placed by the learned counsel on A.K. Kraipak v. Union of India6 on the question of natural justice. We do not think that the case is of any assistance to the petitioners. It was a case where one of the persons, who sat as member of the Selection Board, was himself one of the persons to be considered for selection. He participated in the deliberations of the Selection Board when the claims of his rivals were considered. He participated in the decisions relating to the orders of preference and seniority. He participated at every stage in the deliberations of the Selection Board and at every stage there was a conflict between his interest and duty. The Court had no hesitation in coming to the conclusion that there was a reasonable likelihood of bias and therefore, there was a violation of the principles of natural justice. In the case before us, the Principal of the Medical College, Srinagar, dissociated himself from the written test and did not participate in the proceedings when his daughter was interviewed. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candidates. There was no occasion to suspect his bona fides even remotely. When the other candidates were interviewed, he did not know the marks obtained either by his daughter or by any of the candidates. There was no occasion to suspect his bona fides even remotely. There was not even a suspicion of bias, leave alone a reasonable likelihood of bias. There was no violation of the principles of natural justice. (Emphasis supplied) (28) Taking into consideration the facts of the instant case as discussed hereinabove we find on the basis of principles of law as settled in the matter of Javid Rasool Bhat Vs. State of Jammu and Kashmir(supra) that the instant case squarely comes within the purview of reasonable likelihood of bias. (29) The principles of law as settled in the above case, if applied in the instant case the real likelihood of bias could not be ignored by a man of ordinary prudence. That apart, we find substance in the submissions made on behalf of the respondent no.1 that the selection process under reference was conduced on the basis of the Recruitment Rules dated December 4, 1998. The said Recruitment Rule permitted those candidates whose names had been sponsored by the employment exchange to participate in the selection process. Though the appellant was allowed to participate in the above selection process on the basis of the purported interim order dated May 24, 2000 passed in A.S.T. 1974 of 2000, no material was made available on record to show that steps were taken to conduct the above selection process strictly in accordance with the above Recruitment Rules by making an attempt to vacate the above interim order. (30) Regarding the question of existence of the interim order dated May 24, 2000 passed in A.S.T. no.1974 of 2000, we find substance in the submissions made on behalf of the respondent no.1 that the phrase "in the mean time" was interpreted by a Division Bench of this court in the matter of Calcutta Corporation Teacher Association (supra) as "during or within the time which intervenes the matter was directed to appear in the list two weeks after summer vacation after considering the period of summer vacation in the year 2000. We find that 5th June was the date of reopening of the court after summer vacation. Therefore, the interim order was not in existence. We find that 5th June was the date of reopening of the court after summer vacation. Therefore, the interim order was not in existence. Admittedly the appellant was allowed to sit in the written examination on July 8, 2000 that is after the above period. Therefore, the interim order was not in existence on that date and the selection of the petitioner was vitiated on that ground also. (31) We do not find substance in the submissions made on behalf of the appellant that in view of the default clause as mentioned in the order dated May 24, 2000 A.S.T. No. 1974 of 2000 the interim order was in existence at that point of time. Because by virtue of the above default clause a duty was cast upon the appellant to serve copy of the writ application upon the respondents as also to file affidavit of service before the court on the next date of hearing. In default, the interim order would stand vacated. On the basis of principles of law as settled in the matter Calcutta Corporation Teacher Association (supra) that does not mean and purport that once the copy of the order was served upon the respondents, the interim order under reference would continue for an indefinite period. (32) We do not find substance in the submissions made on behalf of the appellants that the writ application under reference was liable to be dismissed on the ground at inordinate delay or on the ground of filing of the same by an unsuccessful candidate. Because we find that the respondent no.1 lodged complaint to the authorities on August 27, 2002. Since the complaint could be lodged only after the fact of appointment of the appellant had come to the knowledge of the respondent no.1. Since we find that the selection process was vitiated on the ground of real likelihood of bias, the petitioner could not be branded as an unsuccessful candidate. (33) We further find that the learned single judge rightly set aside the appointment of the appellant. In this regard the settled principles of law as decided in the matter Distt. Basic Education Officer Vs. Dhananjai Kumar Shukla, reported in 2008(3) SCC 481 that the relevant portion of the decision are quoted below: 12. (33) We further find that the learned single judge rightly set aside the appointment of the appellant. In this regard the settled principles of law as decided in the matter Distt. Basic Education Officer Vs. Dhananjai Kumar Shukla, reported in 2008(3) SCC 481 that the relevant portion of the decision are quoted below: 12. We would proceed on the basis that the High Court might have been justified inproceeding ex parte but then it should have kept in mind the principles underlying Order 8 Rule 5 CPC (assuming that the provisions of CPC are applicable in terms of the HighCourt Rules framed by the High Court of Allahabad despite Section 141 CPC), that not only despite non-filing of the written statement a court of law may call upon the plaintiff to prove his case but also there cannot be any doubt whatsoever, that no relief can begranted by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India which would be contrary to law. 13. As basic foundational fact stands admitted before us, we are of the opinion that the judgment of the High Court cannot be sustained. The appointment of Respondent1 being contrary to the mandatory provisions as contained in Rule 6 of the Rules, thesame was a nullity. An appointment which was per se illegal could not have been directed to be legalised only because the appellant did not file its counter-affidavit. It did not admit the respondents claim. The question involved in the writ petition was a legalquestion. As indicated hereinbefore, the foundational facts are undisputed. 14. Rules of pleading contained in the Code of Civil Procedure do not cover questions of law. If a fact stands admitted the same in terms of Section 56 of the Evidence Act need not be proved. Only because such a question was not allegedly raised before the High Court, this Court could not shut its eyes to the legal position. Yet again only because an illegality has been committed, this Court would not allow its perpetuation. The respondents father was on leave for a temporary period. He thereby did not cease to be the Manager of the school. It is apparent that he went on leave only for defeating the statutory provisions. Such an act amounts to fraud on the administration. The respondents father was on leave for a temporary period. He thereby did not cease to be the Manager of the school. It is apparent that he went on leave only for defeating the statutory provisions. Such an act amounts to fraud on the administration. (Supplied supplied) (34) In view of the facts and circumstances involved in this case, the decisions of Ashok Kumar Sonkar (supra), Bhupindarpal Singh(supra), Utkal University(supra), State of Hariyana (supra), are not applicable in the instant case. The decision of Rajasthan Public Service Commission(supra) has no manner of application in the instant case, because in the instant case no notification was issued declaring the vacancy. The decision of Ashok Kumar Sarkar(surpa) has no manner of application in this case in view of the facts and circumstances involved in the respective cases. Considering the distinguished facts and circumstances involved in the instant cases as discussed hereinabove, the decision of Snehansu Jas(supra) does not help the appellant. The settled principles of law laid down in the decisions of State of Punjab Vs. V.K. Khanna (supra), E.P. Royappa(supra), Ashok Kumar Yadav(supra), Indian Railway Construction Co. Ltd.(supra), Ramfao(supra), Secretary to the Government Transport Department Madras(supra) and Union of India Vs. Bikash Kumar(supra), does not help the appellant in any way because in view of the observations made hereinabove with regard to real likelihood of bias. Similarly, the law laid down by the Honble Supreme Court in the decisions of U.D. Lama(supra), Trivedi Himanshu Ghanshyambai(supra), Madanlal (supra), Chandra Prakash Tiwari(supra), Dr. G. Sarana(supra), Jaswant Singh Nerwal (supra) and Regional Manager, A.P. SRTC(supra) with regard to initiation of a legal proceeding at the instance of an unsuccessful candidate after participating in the selection process and that too at a belated stage does not come in aid of the appellant in view of the distinguished definite findings of the instant case as discussed hereinabove. (35) In view of the above discussion and observations we are not inclined to interfere with the impugned judgment and order dated August 26, 2005. (36) The appeal is accordingly dismissed. (37) There will be no order as to costs. (38) Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.