JUDGMENT K. J. Sengupta, J. 1. The above batches of the writ petitions have been dealt with by the learned Single Judge but the same could not be disposed of by His Lordship because of important questions of law that were posed before His Lordship. His Lordship having found conflicting judicial decisions of the Division Bench and as that of learned Single Bench of this Court and further Hon’ble Supreme Court by order dated 2nd March, 2011 placed the matters before the Hon’ble Chief Justice for assignment before appropriate Bench. The point was not formulated in so many words while referring the matter but on reading of the entire judgment and conclusion arrived at it is clear following question of law was staring His Lordship: Whether a temporary/casual employee can be allowed to participate in the selection process after condoning his age bar as prescribed in deviation of the recruitment rules?” 2. Therefore, individual fact in great detail in the writ petitions is not relevant for this purpose. Suffice it to say that the writ petitioners therein wanted to have relief for participation in the selection process ignoring age bar prescribed in recruitment rules. The learned referring Bench has discussed and relied on number of Supreme Court decisions rendered earlier including that of in case of The Secretary, State of Karnataka and others vs. Uma Devi and others [ (2006) 4 SCC 1 ]. 3. The factual position of these matters were identical as petitioners were casual and/or temporary employee engaged by the respondents. In all the writ petitions they made substantive prayer for regularization, in the vacant posts in which they were appointed or alternatively to allow them to participate in the selection process for regular appointment to the said post they were holding. Learned referring Bench, however, held in the negative. 4. Learned counsels for the petitioner submit that the learned Single Judge has not followed the consistent views of the Division Bench of this Court as well as the Supreme Court on the above point. Those judgments are binding upon His Lordship. At any rate and alternative relief as prayed for should have been granted deciding the point in favour of the petitioner. 5. Those judgments are binding upon His Lordship. At any rate and alternative relief as prayed for should have been granted deciding the point in favour of the petitioner. 5. They contend that recent judgment of the Division Bench reported in (2011) 1 WBLR Calcutta page 644 has been pleased to hold that the temporary and/or ad hoc appointee who has been serving for a long period in an institution in the same post can at least be granted relief allowing him to participate in the selection process condoning age bar. They have referred to the decision of the Apex Court reported in (2010) 4 SCC page 179 on the same principle where daily wages of the temporary employees worked under the employer are allowed to compete in the selection process for recruitment relaxing maximum age limit. The Division Bench of this Court in a case reported in 1997 (1) CLJ page 501 also held that the authority concerned cannot refuse ad hoc appointee from being considered for appointment solely on the ground of crossing maximum age limit under the Rules. Similar view was taken by Division Bench in case of Hon’ble Chief Justice of High Court, Calcutta and ors. v. Anil Kumar Roy & ors. wherein the Bench had taken note of the Supreme Court’s decision (1998) 9 SCC page 78 rendered in case of Keshav Narayan Gupta & ors. vs. Zila Parishad, Shivpuri (MP) & another. Moreover, the decision relied on by the learned referring Court in the case of State of Karnataka v. Uma Devi though viewed differently while deciding the point of law, ultimately granted relief allowing the ad hoc or temporary appointee to participate in the selection process. The learned referring Judge had taken note of judgment of another learned Single Judge of this Court in Writ Petition No.30843 (W) of 2008. 6. Reference has been made by the learned counsel for the petitioners to the decision reported in (1995) 2 SCC page 1 to urge that at the time of regular selection process ad hoc or temporary appointee in the same post should be allowed to participate along with other candidates relaxing maximum age limit because of their services rendered if the concerned service rule is silent in this aspect. Thus it has now become settled law that ad hoc and/or temporary appointee in the said post should be allowed to participate in the selection process when to be taken on regular basis regularizing the age bar. Accordingly he submits that alternative question be answered in the affirmative relaxation of age bar in case incumbent who joined college long before attainment of age of 37 years in as much answer at the time of their appointment they were within age limit. 7. Learned counsel for the State on the other hand drawing our attention to the relevant rule relating to recruitment with regard to the qualification as regard age contends that there cannot be recruitment, in any form, namely either by way of absorption or regularization contrary to the recruitment rules. According to him the ratio of Uma Devi’s case as spoken of by the learned Trial Judge is complete answer. He contends drawing our attention to the rules relating to recruitment for the post of non-teaching staff in the non-Government colleges there is no scope to adopt different method of recruitment. 8. The learned counsel for the respondent No.1 submits that the views taken by the learned referring Court is a correct view and this has been authoritatively decided by the Division Bench of this Court in case of M.A.T. No.544 of 2009 Sudipta Mondal vs. Arjun Kumar Dey and ors. The Division Bench while noting of all the decisions of the Supreme Court as well as this Court on the subject held, power of relaxation can be exercised only if there exists expressly such power. He has also referred to while quoting his point as above, in case of Shainda Hasan vs. State of U.P. and ors. reported in AIR 1990 SC 1381 to submit that in the absence of power in the Rule no relaxation can be granted. 9. After hearing learned counsel for the parties and reading the judgment of the learned referring Court in this case in order to answer primarily question, namely whether temporary and/or ad hoc appointee can be granted relaxation of age bar to participate at the time of selection process whilst they are in service. Two situations are possible in the matter of relaxation of age bar. Two situations are possible in the matter of relaxation of age bar. One is where there is no sanction to post and a candidate is appointed on part time basis to cope up with extra work load and subsequent creation of post in which temporary and ad hoc appointee is manning and another one a temporary or ad hoc appointee in a sanctioned post. 10. However, vexed question is whether in view of the aforesaid pronouncements of all the Authorities cited above relaxation of age bar can be allowed in absence of express provision in the recruitment rules. In other words whether any direction given by Court to relax age bar would be inoperative as being contrary to the recruitment rules so as to render appointment being invalid as per the standard/norms laid down by the Supreme Court in Uma Devi’s case or not. Before Uma Devi’s case was rendered the views of the Courts were required to be surveyed. The Division Bench of this Court in the case reported in (1997) 1 CLJ page 501 held amongst other that the authority concerned could not refuse ad hoc and/or temporary appointee to be considered for appointment solely on the ground of overage under the Rule. The Supreme Court in case of U.P. State Road Transport Corporation & anr. v. U.P. Paribahan Nigam Shishukhs Berozgar Sangh & ors. reported in (1995) 2 SCC page 1 in paragraph 12 of the report held amongst other while approving the appointment to the trainees, if age-bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the service rule concerned. If the service rules were silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given. In this decision it is clear that if the concerned service rules provide for relaxation of age bar and if it has to be given automatically and if the service rule is silent on this aspect then it would not be illegal for the Court to direct relaxation of age bar in a fit case. 11. In the case of Keshav Narayan Gupta & ors. vs. Zila Parishad, Shivpuri (MP) & anr. 11. In the case of Keshav Narayan Gupta & ors. vs. Zila Parishad, Shivpuri (MP) & anr. reported in (1998) 9 SCC page 78 the Supreme Court was dealing with problem with regard to the appointment of ad hoc or temporary appointee who had rendered services for the long period his appointment should be considered at the time of regular selection process condoning age bar. In paragraph 5 of the report the Supreme Court has held by necessary implication the relaxation is permissible. It was therefore directed amongst others as follows:- “Hence if any regular appointments are made, the cases of the appellants should also be considered by waiving, if necessary, the age bar.” 12. Thereafter large numbers of decisions were rendered on this point by the Supreme Court on the question of regularization of ad hoc appointee. Ultimately the Constitution Bench of the Supreme Court while analyzing and surveying earlier all the decisions of the Supreme Court has held in our view as the proposition of law that no appointment should be made in any form either by way of regularization or absorption contrary to the recruitment rules. But field of choice has not been specifically spelt out. The approach of the Apex Court while rendering the decision was to see that the rule of law is established in the matter of public employment. In that judgment two opinions were classified one is an illegal appointment another is irregular appointment. In case of an illegal appointment the Supreme Court was of the view under no circumstances such appointment should be approved or regularized in any manner by the direction of the Court. Illegal appointment has also been explained in case that if such appointment goes to the very root of the matter namely relating qualification as regard age and education and other essential criteria. But in case of irregular appointment Apex Court was of the view that can be regularized provided the same does not go to the root of the matter with regard to the selection process. After deciding all this the Supreme Court in that case ultimately with regard to the relaxation of age had given direction in paragraph 55 as follows:- “………….If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. After deciding all this the Supreme Court in that case ultimately with regard to the relaxation of age had given direction in paragraph 55 as follows:- “………….If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in CAs Nos. 3595-612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.” 13. The above judgment has been explained by the Supreme Court in two cases subsequently. In case of State of Karnataka & ors. vs. M.L. Kesari & ors. reported in AIR 2010 SC 2587 the Two Judges' Bench in paragraph 4 of the report stated as follows:- “In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re-engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court, however, made one exception to the above position and the same is extracted below.” (Thereafter paragraph 53 of the report of the SCC wherein Uma Devi’s case was reported has been quoted.) Then in paragraph 5 of the said judgment in case of M.L. Kesari the Supreme Court has summarized the ratio of the decision in Supreme Court in Uma Devi’s case in the manner as follows:- “It is evident from the above that there is an exception to the general principles against ‘regularization’ enunciated in Uma Devi, if the following conditions are fulfilled:- (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. 14. Uma Devi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision.” 15. In earlier case of the Supreme Court in case of Satya Prakash & ors. vs. State of Bihar & ors. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision.” 15. In earlier case of the Supreme Court in case of Satya Prakash & ors. vs. State of Bihar & ors. reported in (2010) 4 SCC at page 179 the ratio in Uma Devi’s case has been explained in paragraph 8 which is as follows:- “In Umadevi’s case this Court held that the courts are not expected to issue any direction for absorption/regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees. This Court held that such directions issued could not be said to be inconsistent with the constitutional scheme of public employment. This Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted.” 16. We ourselves have read the aforesaid pronouncement of the Supreme Court while carefully reading the ratio of Uma Devi’s case we find that it is clear that two types of appointments have been discussed one is illegal appointment and another is irregular appointment. In case of former the appointment of such appointee cannot be accepted by taking any measure either by regularization or absorption or making him permanent. Illegal appointment has been described to be such types of engagement that militates against mandatory provision relating to recruitment meaning thereby if any person is appointed at the time of appointment does not possess requisite qualification as regard age and education etc. But in case of a latter namely irregular appointment where the appointees having requisite qualification as regard age and education, have not been appointed through open selection. In such a case regularization can be possible granting relaxation of overage. 17. We think paragraph 55 of Uma Devi’s case is apposite as rightly contended by the learned counsel for the writ petitioners. In such a case regularization can be possible granting relaxation of overage. 17. We think paragraph 55 of Uma Devi’s case is apposite as rightly contended by the learned counsel for the writ petitioners. In consonance with the line of the above ratio in Uma Devi’s case itself the Supreme Court has passed the order as follows:- “………………..We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in CAs Nos. 3595-612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.” It is true the said direction was under Article 142 and not under Article 141 to accept as a statement of law of the land enunciated by the Supreme Court but the then direction of the Supreme Court taken consistently can hardly be ignored. 18. Even before the decision of Uma Devi came to be rendered in case of Keshav Narayan Gupta & ors. v. Jila Parishad, Shivpuri (MP) & anr. reported in (1998) 9 SCC page 78 the Supreme Court in paragraph 5 of the report has said as follows:- “We, therefore, do not see any reason to take a view different from the view taken by the High Court. It is, however, submitted by the learned counsel for the appellants that these appellants have worked for 12 years by now and there are no complaints regarding their service. Hence, if any regular appointments are made, the cases of the appellants should also be considered by waiving, if necessary, the age bar. We see some force in this contention. It is, however, submitted by the learned counsel for the appellants that these appellants have worked for 12 years by now and there are no complaints regarding their service. Hence, if any regular appointments are made, the cases of the appellants should also be considered by waiving, if necessary, the age bar. We see some force in this contention. We, accordingly, direct that when regular appointments to the posts at present occupied by the appellants are made, the cases of the appellants will also be considered along with the other applicants by waiving the age bar in the case of the appellants, if necessary. Until such regular appointments are made the appellants will continue to function on an ad hoc basis as of now. With these directions the appeals are dismissed.” 19. Following the aforesaid judgment of the Supreme Court the Division Bench of this Court in an unreported decision in case of The Hon’ble Chief Justice, Hon’ble High Court, Calcutta & ors. vs. Anil Kumar Roy & ors. (APOT No.94 of 2011, GA 640 of 2011) has allowed the ad hoc appointee or daily rated worker to participate in the selection process waiving the age bar. 20. We have already quoted pre Uma Devi period the Supreme Court in case of UP State Road Transport Corporation (supra) in paragraph 12 by necessary implication held that the trainees who are in the establishment would be entitled to participate in the selection process with relaxation of overage problem. The Division Bench of this Court in case of State of West Bengal & ors. vs. Sasti Kumar Chowdhury & ors. reported in (2011) 1 WBLR (Cal) 644 while refusing to regularize the services of the appointee who are engaged without following the recruitment rules ultimately allowed that after considering the judgment of Uma Devi’s case and other Supreme Court decision on this aspect had given a direction to allow the temporary ad hoc appointee whose appointment could not be regularized will land to participate in the selection process condoning age bar. .. 21. It is contended to counter the aforesaid decision the learned counsel for the Principal of the College concerned cited the unreported decision of the Division Bench of this Court in case of Sudipta Mondal vs. Arjun Kumar Dey & ors in M.A.T. 544 of 2009. 22. .. 21. It is contended to counter the aforesaid decision the learned counsel for the Principal of the College concerned cited the unreported decision of the Division Bench of this Court in case of Sudipta Mondal vs. Arjun Kumar Dey & ors in M.A.T. 544 of 2009. 22. It appears that the Division Bench held that even relaxation of the age in case of recruitment is not permissible under any circumstances unless there is express power to that effect. 23. It seems to us the said decision was rendered without noting carefully the ratio of Uma Devi’s case and further aforesaid two Supreme Court’s decisions (which have stated the ratio) in case of M.L.Keshri and Satya Prakash whereby the ratio of Uma Devi’s case as recorded above have been clearly culled out. Therefore the said reported Division Bench judgment and unreported Division Bench judgment are not appropriate or helpful to this case. It appears that Division Bench has relied on the decision of the Supreme Court in case of Hindustan Petroleum Corporation limited reported in (2008) 2 SCC 717 that at the time of recruitment process the age of the fresh candidate cannot be relaxed but the aforesaid judgment of the Supreme Court has nowhere said that the persons who are engaged irregularly their case could be considered by relaxing age bar. In view of the above discussion we conclude as follows: No ad hoc or temporary appointee can be absorbed nor be regularized in any post in Government or Government-aided establishment dehors Recruitment or Service Rule ordinarily. 25. If the appointment is made without undertaking selection procedure under Rule on ad hoc or temporary basis engaging the candidates having requisite qualification namely age and education at the time of appointment against substantive post the candidates in those cases shall be allowed to compete and/or participate in the selection process along with other eligible candidates at the time of regular recruitment process condoning the age as they have acquired right to be considered. Of course, their services must be continuous and without any break in the vacancy of substantive post at the time when the regularization is demanded and selection process undertaken. Of course, their services must be continuous and without any break in the vacancy of substantive post at the time when the regularization is demanded and selection process undertaken. But in case where the appointees are not qualified at all and they have been engaged for rendering services as an ad hoc basis or temporary measure their case cannot be considered under any circumstances either against substantive post or the post yet to be created. Now all these matters will be sent down to the learned Trial Judge for disposal. SHUKLA KABIR (SINHA), J.; I agree JOYMALYA BAGCHI, J.; I agree