Judgment :- Syamal Kanti Chakrabarti, J. 1. In the instant appeal the legality and propriety of the judgement and order passed by a Learned Judge of this Court in W. P. No. 23678(W) of 2005 has been challenged. 2. The brief facts of this case is that the petitioner appellant is a science graduate from the University of Calcutta. On 9th March, 1999 the managing committee of Dhakuria High School (Chandpara) under Gaighata P.S. of District – North 24 Parganas took a resolution to appoint the petitioner temporarily to the post of clerk. Accordingly on 15th March, 1999 appointment letter was issued in his favour by the Secretary of the school asking him to join. Accordingly he joined as a clerk on 01.04.1999 and is continuing in service since then. On 17.01.2004 the managing committee decided to fill up the vacant post of clerk and accordingly the headmaster concerned on 17.02.2004 approached the Additional District Inspector of Schools (S.E.), Bongaon sub division to accord permission for filling up the said post of clerk. 3. On receipt of his prior permission the Secretary of the school made a requisition to the employment officer concerned for sponsoring the names of eligible candidates to fill up the said post. At that time the petitioner was age-barred and his name was not sponsored by the employment exchange. In November, 2005 the petitioner requested the school authorities to allow him to participate in the interview which was declined. 4. Therefore, in December, 2005 the petitioner filed a writ petition being W. P. No. 23678(W) of 2005 before the Hon’ble High Court at Calcutta. At the admission stage this Hon’ble Court by an interim order directed the school authority to allow the petitioner to participate in the selection process. Accordingly interview letter was also issued in favour of the petitioner on 03.11.2006. On 24.11.2006 the petitioner participated in the interview along with other candidates sponsored by the employment exchange. After completion of the selection process the selection committee prepared a panel in order of merit wherein the petitioner’s name was on the top of the list. The headmaster concerned submitted the said panel with all relevant papers and documents on 28.11.2006 relating to the selection before the Additional District Inspector of Schools (A.C.), Bongaon sub division for according necessary approval. On 12.12.2006 the aforesaid writ petition filed by the respondent no. The headmaster concerned submitted the said panel with all relevant papers and documents on 28.11.2006 relating to the selection before the Additional District Inspector of Schools (A.C.), Bongaon sub division for according necessary approval. On 12.12.2006 the aforesaid writ petition filed by the respondent no. 8 was disposed of without any order. On 13.12.2006 the District Inspector of Schools (A.C.) 24 Parganas North accorded approval of the panel and on 15.12.2006 appointment letter was issued in favour of the petitioner and on that date he joined as clerk in the said school. 5. On 17.02.2010 the writ petition being W. P. No. 23678(W) of 2005 was taken up for final hearing and the same was dismissed upon setting aside the appointment of the petitioner and the District Inspector of Schools (A.C.) 24 Parganas North was directed to recast the panel. Being aggrieved by and dissatisfied with the said order dated 17.02.2010 passed by the Learned Single Judge present appeal has been preferred. 6. An application being C. A. N. 1837 of 2010 has also been filed by the petitioner in connection with the aforesaid appeal for stay of the operation of the impugned judgment and order under appeal passed by the Learned Single Judge and for issuance of an order of injunction restraining the respondents from terminating the service of the appellant and also from modifying or recasting the said panel. 7. Having heard learned counsel for both the parties and on perusal of the impugned judgement and order under appeal and also considering the connected documents, we find that the following points need be considered:- (a) Whether a candidate has crossed the age bar but participated in the selection process pursuant to an interim order of the Court, can acquire any right to be appointed? (b) If there is no provision in the relevant recruitment rule for relaxation of age limit, can the Court in the instant case make such relaxation by interlocutory order and subsequently deny the benefit accrued out of such interim order at the time of final disposal of the writ petition? 8. Learned lawyer for the appellant has contended that in appropriate case the Court can relax the age bar specifically when the candidate had worked in the institution even if there is no such rule for relaxation. 8. Learned lawyer for the appellant has contended that in appropriate case the Court can relax the age bar specifically when the candidate had worked in the institution even if there is no such rule for relaxation. According to the learned advocate of the appellant, past services of the appellant cannot be altogether ignored and in appropriate case considering the past service rendered by a candidate Court can relax the prescribed age limit. The learned advocate of the appellant has relied upon the principles as laid down in the following decisions: (i) (2006) 8 SCC 67 (State of M.P. & Ors. –Vs.- Yogesh Chandra Dubey & Ors.) (ii) (2008) 1 SCC 456 (State of M.P. & Ors. –Vs.- Sanjay Kumar Pathak & Ors.) (iii) (2006) 4 SCC 1 (Secretary, State of Karnataka & Ors. –Vs.- Umadevi (3) & Ors.) (iv) 2010(1) CHN 670 (State of West Bengal –Vs.- Bhanu Prakash Srivastav) and (v) 2010(1) CHN 497 (B. C. Chaturvedi –Vs.- Union of India & Ors.) 9. Learned lawyer for the respondent no. 8 on the contrary has contended that the Hon’ble Supreme Court under Article 142 of the Constitution of India can relax the age bar but the High Court has no such power under Article 226 of the Constitution. In the instant case the interim order granted by this Hon’ble High Court in favour of the writ petitioner was made under clear stipulation that the same shall be subject to the result of the writ petition. Therefore, according to the learned advocate of the respondent no. 8 by such interim order the writ petitioner cannot claim any right to be absorbed in such post by relaxation of his age. 10. Learned lawyer for the petitioner has also drawn our attention to a memo bearing no. 344-AC(B)/1M-66/2008 dated 04.07.2008 issued by the OSD and Ex-officio Joint Secretary, School Education Department, Budged Branch, in which the State Government has condoned the overage at the time of entry into service in respect of an employee as a special case. Therefore, he may also be bestowed with the same benefits in view of his long service rendered in the school giving rise to his legitimate expectation to be absorbed in the permanent post for rendering a valuable part of his life to serve the institution. Therefore, he may also be bestowed with the same benefits in view of his long service rendered in the school giving rise to his legitimate expectation to be absorbed in the permanent post for rendering a valuable part of his life to serve the institution. Moreover, since he topped the list he has fulfilled all the eligibility criteria except the age limit and in such peculiar circumstances such benefit once given by the school authority and endorsed by the State Government cannot be withdrawn violating the principles of natural justice. 11. Learned lawyer for the said respondent no. 8 on the contrary has refuted this argument and claimed that in the aforesaid special case, the relaxation of age was made at the time of initial appointment but in the memo under reference there is no whisper that the said order will be treated as a precedent. It is not the case of the appellant that he was appointed temporarily as a clerk on 09.03.1999 in relaxation of his age. In fact the appellant had crossed the age limit while steps were taken to fill up the post in question by regular process in 2004 and at that time the school authority refused to allow the appellant to participate in the selection process on the ground of such age bar. It is only under interim order of this Hon’ble Court he was allowed to participate in such selection process subject to the result of the writ petition. Therefore, according to the learned advocate of the respondent no. 8 there is no scope for application of the said memo in the instant case under dissimilar facts and circumstances. In support of the aforesaid arguments Learned Counsel of the respondent no. 8 relied on the following decisions: (i) 2001(2) CLJ (D.B) 161 (Chairman, Ad-hoc Committee, District Primary School Council, Burdwan –Vs.- Rabindra Nath Ghosh & Ors.); (ii) 2009(1) CLJ (Cal D.B.) 642 (Sri Sukumar Mondal –Vs.- State of West Bengal); (iii) 1996(10) SCC 565 (E. Ramakrishnan & Ors. –Vs.- State of Kerala & Ors.); (iv) (1998) 9 SCC 327 (Chairman, Public Service Commission, J & K & Anr. –Vs.- Sudarshan Singh Jamwal & Anr.); (v) 1999(2) CHN 289 (Biman Chandra Markamar –Vs.- State of West Bengal, Sukanta Mondal & Anr. Vs.- State of West Bengal); (vi) 2001(1) CHN 204 (Malda District Primary School Council & Anr. –Vs.- Md. –Vs.- State of Kerala & Ors.); (iv) (1998) 9 SCC 327 (Chairman, Public Service Commission, J & K & Anr. –Vs.- Sudarshan Singh Jamwal & Anr.); (v) 1999(2) CHN 289 (Biman Chandra Markamar –Vs.- State of West Bengal, Sukanta Mondal & Anr. Vs.- State of West Bengal); (vi) 2001(1) CHN 204 (Malda District Primary School Council & Anr. –Vs.- Md. Faridur Rahaman & Ors.); (vii) 2007(2) 105 CLJ 105 (Gaya Nath Rajbanshi –Vs.- State of West Bengal & Ors.); (viii) 2008(1) CLJ (Cal) 912 (Debendra Nath Mondal –Vs.- Ratan Kumar Das & Ors.); (ix) (2007) 10 SCC 260 (Rajasthan Public Service Commission –s.- Kaila Kumar Paliwal & Anr.); (x) (2006)8 SCC 671 (Kendriya Vidyalaya Sangathan & Anr. – Vs.- Sajal Kumar Roy & Ors.); (xi) (2007) 6 SCC 167 (Andhra Bank –Vs.- ABN Amro Bank N. V. & Ors.). We have carefully gone through the written notes submitted by the contending parties and the principles laid down in the cases relied upon by them. 12. Before entering into the merit of this appeal let us examine the views of the Learned Single Judge in dismissing the writ petition by the impugned judgement and order under appeal. The interim order dated 15.12.2005 granted in W. P. No. 23678(W) of 2005 is quoted below: “Admittedly, the petitioner is overaged. The petitioner claims that the petitioner has been working as a Clerk in Dhakuria High School (Chandpara) in the district of North 24 Parganas on temporary basis in the concerned school since 1999. It is alleged by the petitioner that the school authority is going to fill up the said post on permanent basis. The petitioner wants to participate in the selection process for the said post, but the school authority has refused to allow the petitioner to participate in the selection process, as the petitioner is overaged. The petitioner claims relaxation of the age bar. The learned Advocate, appearing for the petitioner relies upon a decision of the Hon’ble Supreme Court in the case of Dr. Surinder Singh Jamwal & Anr. Vs. State of Jammu & Kashmir & Ors., reported in AIR 1996 SC 2775 in support of his claim for relaxation of the age bar. Under such circumstances, this Court permits the petitioner to participate in the selection process provided he petitioner can satisfy other eligibility criteria for the said post. Surinder Singh Jamwal & Anr. Vs. State of Jammu & Kashmir & Ors., reported in AIR 1996 SC 2775 in support of his claim for relaxation of the age bar. Under such circumstances, this Court permits the petitioner to participate in the selection process provided he petitioner can satisfy other eligibility criteria for the said post. For the time being, in view of the aforesaid decision of the Hon’ble Supreme Court this Court directs the concerned authority to allow the petitioner to participate in the selection process, although he has crossed the maximum age limit as prescribed under the extant Rules, provided, however, the petitioner fulfils the other eligibility criteria for the said post. The panel for the said post may also be prepared, but no appointment will be given without the leave of this Court till the end of February, 2006. It is made clear that the petitioner will not be entitled to claim any equity simply because of his/her participation in the selection process. Leave is given to the respondents to file affidavit-in opposition to this writ petition two weeks after the reopening of this Court after x-mass vacation, reply, thereto, if any, be filed within a week thereafter. Let this matter appear in the list under the heading ‘For Orders’ in the monthly combined list of February, 2006. Since, inspite of service upon the school authority, the school authority remains unrepresented today, the petitioner is directed to intimate this order to the school authority and file further affidavit of service on the next date of hearing. Let a xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates of the respective parties on usual undertaking. ” 13. While considering the said interim order the Learned Single Judge observed, inter alia, that the said order was an interim relief granted in aid of final relief. The questions involved in the petition are, having worked on a temporary basis as a clerk in the institute, whether the appellant acquired a right for absorption in the institute as clerk on permanent basis or alternatively to participate in the selection process as a candidate. The questions involved in the petition are, having worked on a temporary basis as a clerk in the institute, whether the appellant acquired a right for absorption in the institute as clerk on permanent basis or alternatively to participate in the selection process as a candidate. The appellant claimed the right of absorption on the ground that he has been appointed on a temporary basis and continued to work as a clerk and as such acquired the right to be absorbed permanently in the post. While considering his right to participate in the selection process, the Learned Single Judge observed that the recruitment rules provide that only those candidates whose names were sponsored by the employment exchanges should be interviewed by the selection committee. The name of the appellant was not sponsored by the employment exchange on the ground of age bar. He has not come up with any case that the employment exchange wrongfully deprived him of the benefit of his sponsorship or that the institute was following an illegal or unfair procedure. Therefore, in ultimate analysis by the final decision learned single Judge was reluctant to accede to the claim of the appellant to participate in the selection process in relaxation of his age limit and decided that by working on a temporary basis said appellant could not and actually did not acquire such a right. 14. From the recital of the interim order passed by the learned single Judge it will be evident that the same was issued on the clear stipulation that the panel for the said post may also be prepared after allowing the writ petitioner (appellant herein) to participate in the selection process but no appointment should be given without the leave of the Court till the end of February, 2006. It was made clear in the said order that the appellant herein would not be entitled to claim any equity simply because of his participation in the selection process. Surprisingly from the facts and circumstances we find that the selection committee took interview of the eligible candidates including the present appellant on 24.11.2006 and the headmaster concerned forwarded the panel with all relevant papers on 28.11.2006 to the District Inspector of the schools concerned. Surprisingly from the facts and circumstances we find that the selection committee took interview of the eligible candidates including the present appellant on 24.11.2006 and the headmaster concerned forwarded the panel with all relevant papers on 28.11.2006 to the District Inspector of the schools concerned. On 13.12.2006 the District Inspector of Schools accorded approval to such selection and thereafter on 15.12.2006 appointment letter was issued in favour of the appellant when the restriction imposed by the interim order regarding issuance of the appointment letter was not operative. Thus the school authority as well as the District Inspector of Schools did not seek any permission of this Court for according such approval of the panel prepared by the selection committee. 15. The Learned Single Judge in the aforesaid interim order also made it clear that no appointment should be given without leave of this Court till the end of February, 2006. The aforesaid restrictions imposed by the Learned Single Judge in the aforesaid interim order dated 15th December, 2005 was not thereafter extended. Neither of the interested parties approached this court for extension of the aforesaid interim order for the purpose of continuance of the restriction imposed by the Learned Single Judge. 16. Therefore, the school authority as well as the District Inspector of Schools had no occasion to seek any permission of this court for such approval of the panel preparing by the Selection Committee. The District Inspector of Schools undisputedly approved the panel prepared by the Selection Committee forwarded by the Managing Committee of the school. The appellant, herein, was thereafter appointed to the said post of Clerk after an approval of the panel and till today the said petitioner is serving the institution in the said post of Clerk. At this stage if the appointment of the petitioner is declared invalid then a serious injustice will be caused to the said appellant. 17. The appellant/petitioner, herein, was undisputedly appointed to the said post of Clerk on temporary basis by the Managing Committee in the year 1999, i.e., before enunciating the process of filling up the said post of Clerk on permanent basis upon the procedures. 18. The Learned Single Judge passed an interim order allowing the appellant herein, to participate in the selection process upon considering the aforesaid services rendered by the appellant in the said post of Clerk for a considerable period. 18. The Learned Single Judge passed an interim order allowing the appellant herein, to participate in the selection process upon considering the aforesaid services rendered by the appellant in the said post of Clerk for a considerable period. The Learned Single Judge, however, made it clear that the appellant herein will not be entitled to claim the equity on account of his participation in the selection process. 19. The appellant, herein, undisputedly participated in the selection process for filling up the said post of Clerk and the Selection Committee found the said appellant as most eligible candidate. In the aforesaid circumstances appellant cannot be denied employment by this court only on the ground of age bar specially when the said appellant has been serving the School to the said post of Clerk since March, 1999. Following the principles as laid down by the Supreme Court in the aforesaid decisions as cited by the appellant we are of the opinion that it is a fit case where the prescribed age limit should be condoned in respect of the appellant specially considering the facts that the said appellant has been allowed to work to the post of Clerk initially on temporary basis since March 1999 and thereafter on regular basis with effect from 15th December, 2006. It may also be mentioned herein, that the District Inspector of Schools has also accorded approval to the aforesaid appointment of the appellant on 10th January, 2007. 20. The service rendered by the petitioner for a considerable period to the said post of clerk cannot be altogether ignored. Before initiation of the formal selection process the said appellant served the School on temporary basis to the said post of Clerk for a period of more than 6 years and after the formal selection the said appellant has been serving the School till today exceeding the period of almost 5 years. In the aforesaid circumstances the age bar of the appellant should be condoned specially when the appellant was adjudged as the best candidate in the selection and has also fulfilled all other eligibility criteria. 21. Therefore, for the reasons discussed hereinabove and in order to do substantial justice, we are not inclined to interfere with the service of the appellant to the said post of Clerk at this stage. 22. 21. Therefore, for the reasons discussed hereinabove and in order to do substantial justice, we are not inclined to interfere with the service of the appellant to the said post of Clerk at this stage. 22. The cases referred to and relied upon by the learned counsel of the appellant are very much relevant in the facts of the present case. However, the decisions cited by the Learned Counsel of the respondent no. 8 have no manner of application in the present case. For the aforementioned reasons the judgment and order under appeal passed by the Learned Single Judge cannot be affirmed by us. We, therefore, set-aside the judgment and order under appeal passed by the Learned Single Judge and allow the appellant to continue to the post of Clerk pursuant to the letter of appointment issued by the Managing Committee of the school and in terms of the order of approval accorded by the District Inspector of Schools on 10th January, 2007. 23. Both the appeal and the connected application being C.A.N. 1837 of 2010 thus stand disposed of. In the facts of the present case, there will be no order as to costs. 24. Urgent Photostat certified copy of this order, if applied for, be supplied to the respective parties upon compliance of all requisite formalities. (SYAMAL KANTI CHAKRABARTI, J.) PRANAB KUMAR CHATTOPADHYAY, J. I agree. (PRANAB KUMAR CHATTOPADHYAY, J.) LATER: After pronouncement of the judgment, Ms. Debjani Sengupta, Learned Counsel representing the respondent no. 8 prays for stay of the operation of the said judgment and order. We find no reason to grant such stay. Accordingly, the prayer for stay is refused.