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2014 DIGILAW 333 (GAU)

Mumtazali v. Assam Public Service Commission

2014-03-19

UJJAL BHUYAN

body2014
Judgment Ujjal Bhuyan, J. 1. Heard Dr. B Ahmed, learned counsel for the petitioner and Ms. A. Verma, learned Standing Counsel, Health Department, Assam. Also heard Mr. C Baruah, learned Standing Counsel, Assam Public Service Commission (APSC). By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of the decision of APSC rejecting his candidature for the post of Medical Officer (Ayurvedic), under the Health & Family Welfare (A) Department, Govt. of Assam on the ground of being overaged. Petitioner further seeks a direction to the respondents to allow him to appear in the interview for the said post. 2. Petitioner obtained Bachelor of Ayurvedic Medicine & Surgery (BAMS) degree from Government Ayurvedic College, Guwahati, and got himself registered with the State Council of Indian Medicine, Assam, Guwahati. Thereafter, he obtained Post Graduate degree and also Ph.D. degree. He has been working as Lecturer in various private institutions, both inside the State as well as outside the State. 3. APSC issued advertisement No. 04/2013, dated 01.08.2013, inviting applications from eligible candidates for recruitment to 53 posts of Medical Officer (Ayurvedic) under Health & Family Welfare (A) Department. As per the said advertisement, a candidate should not be less than 20 years of age and not more than 38 years of age as on 01.01.2013. It was provided that the upper age limit was relaxable for reserved categories of candidates as per existing Rules. 31.08.2013 was the date fixed for submission of applications. 4. Petitioner submitted application pursuant to the said advertisement. Along with the application, he submitted a letter dated 23.08.2013, issued by the Under Secretary to the Govt. of Assam, Health & Family Welfare (A) Department and addressed to the Deputy Secretary, APSC, stating that the overage in respect of the candidates mentioned therein, including the petitioner, has been condoned to enable them to apply for the post of Medical Officer (Ayurvedic). It may be mentioned that age of the petitioner as on 01.01.2013, was 38 years, 4 months arid 26 days and, thus, he was overaged. However, APSC in their official website uploaded a list of candidates, who had applied for the post of Medical Officer (Ayurvedic) pursuant to the advertisement dated 01.08.2013 and whose applications have been rejected. In the said list, petitioner's name appeared at Sl. However, APSC in their official website uploaded a list of candidates, who had applied for the post of Medical Officer (Ayurvedic) pursuant to the advertisement dated 01.08.2013 and whose applications have been rejected. In the said list, petitioner's name appeared at Sl. No. 74 and the ground of rejection is shown as being overaged with the remark that petitioner is working as Lecturer in private college. In the meanwhile, interview pursuant to the said advertisement was scheduled from 11.3.2014 to 14.3.2014. 5. Aggrieved, petitioner has filed the present writ petition. On 12.03.2014, this Court directed the learned Standing Counsel, Health Department to produce the relevant record to see as to how the Under Secretary of the Health Department had processed the application of the petitioner and others for condonation of overage and on what basis the overage of the petitioner was condoned. 6. Today, when the matter is taken up, learned Standing Counsel has produced the record. Learned counsel for the petitioner has placed reliance on an office memorandum of the Govt. of Assam in the Personnel (B) Department, dated 27.03.1980 and the office memorandum dated 04.01.1992 of the same Department to contend that petitioner is entitled to the benefit of upper age relaxation. No distinction can be made between those in Government employment and those in private employment while considering age relaxation. The Govt. had rightly condoned the overage of the petitioner and the APSC was not at all justified to reject the application of the petitioner as being overaged by citing his employment in private college while declining relaxation. He submits that in a Welfare State like ours, where employment opportunities are limited, a liberal approach should be adopted in matters of age relaxation for recruitment to public employment. Therefore; decision of APSC requires interference by this Court and direction may be issued to the APSC to allow the petitioner to appear in the interview. 7. Submissions made by learned counsel for the petitioner is opposed by the learned counsel for APSC and the Health Department. I have heard learned counsel for the parties. 8. A conjoint reading of the two office memoranda dated 27.03.1980 and 4.1.1992 would show that the upper age limit for recruitment to Government employment can be relaxed up to the age of 45 years. I have heard learned counsel for the parties. 8. A conjoint reading of the two office memoranda dated 27.03.1980 and 4.1.1992 would show that the upper age limit for recruitment to Government employment can be relaxed up to the age of 45 years. However, such relaxation may be allowed only in case of those who are in the services of the State Government, an exception being carved out where recruitment is not made through the APSC. The objective behind the two office memoranda and the purpose for relaxation of the upper age limit in matters of recruitment to public service it appears is to ensure a fair deal to a deserving candidate who is otherwise over-aged and, therefore, ineligible or in the public interest. One of these two conditions must be satisfied before the age limit can be relaxed in favour of the individual candidate. The office memorandum dated 27.03.1980 provides that where the direct recruitment is not made through the APSC, the relaxation may be allowed to those candidates also who are not in the services of the State Govt., but in case of recruitment which is made through the APSC, the APSC should be consulted before such relaxation is granted. The procedure for such relaxation is provided in the office memorandum itself. The Appointing Authority when approached by a candidate for granting relaxation of the upper age limit, if he is satisfied that the case deserves consideration, he shall refer the case to the APSC to consider the case on merit, notwithstanding the fact that the candidate had exceeded the age limit. Discretion is vested with the APSC to make the final recommendation, whether to relax the upper age limit or not keeping in view the merit of each individual case. 9. Thus, it is evident that in case of recruitment through APSC, relaxation of upper age limit is allowed only in case of those who are in the services of the State Govt. But where recruitment is not made through APSC, such relaxation is also extendable to those who are not in the service of the State Govt. It is also evident that in case of recruitment through APSC, decision is that of the APSC. No relaxation can be granted without consulting the APSC. 10. Coming back to the facts of the present case, a perusal of the record would show that the State Govt. It is also evident that in case of recruitment through APSC, decision is that of the APSC. No relaxation can be granted without consulting the APSC. 10. Coming back to the facts of the present case, a perusal of the record would show that the State Govt. while considering the prayer for overage relaxation of the petitioner, proceeded on the basis that it is the Appointing Authority, who is the competent authority for condonation of overage. 11. Relaxation of the upper age limit in the case of a candidate seeking public employment is not to be granted in a routine manner. No candidate can demand as a matter of right that the upper age limit should be relaxed in his case. As noticed above, such relaxation would be permissible only in the interest of fair dealing or in the public interest. Moreover, the appointing authority must record its satisfaction that an application for relaxation of the upper age limit deserves consideration, which shall then be referred to the APSC for its decision on merit. 12. In the present case, relaxation of overage of the petitioner by the Govt. was clearly in contravention of the procedure laid down in the office memorandum dated 27.03.1980 and the APSC rightly ignored such condonation. Since the petitioner admittedly was in private employment and as the recruitment is through the APSC, he is not entitled for relaxation of the upper age limit as per the above office memorandum. In such circumstances, decision of the APSC to reject the candidature of the petitioner on the ground of being overaged with the remark that petitioner served in private college, which means that he is not entitled to the benefit of the office memorandum dated 27.03.1980 cannot be faulted with. This Court is of the considered view that there is no infirmity in the aforesaid decision of the APSC, which does not suffer from any arbitrariness or unreasonableness. Petitioner has failed to make out any case for interference by this Court. There is no merit in the writ petition, which is accordingly dismissed. No costs. Petition dismissed.