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2020 DIGILAW 404 (GAU)

Arup Goswami v. State Of Assam

2020-03-18

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT 1. Heard Mr. AK Sarma, learned counsel for the petitioner, Mr. C Barua, learned Standing Counsel for the respondent APSC, Mr. D Nath, learned additional senior Government Advocate for the Fisheries Department and Mr. AK Thakur, learned counsel for the respondent No.3 in the Personnel (B) Department. 2. The petitioners having completed their B.F.Sc Degree from the College of Fisheries, Raha, Assam under the Assam Agriculture University, Jorhat, had offered their candidature to the advertisement No.08/2019 dated 30.12.2019 of the respondent Assam Public Service Commission (in short APSC). The advertisement was for filling up 12 numbers of posts of Fisheries Development Officer and Allied Cadre under the Fisheries Department. In the advertisement, it was provided that the candidate should not be less than 21 years of age and not more than 38 years as on 01.01.2019. But admittedly, the petitioners were over aged being beyond 38 years of age as on 01.01.2019. Accordingly, the petitioners approached the authorities under the Fisheries Department for a suitable relaxation of their upper age. In response thereof, the Joint Secretary to the Government of Assam in the Fisheries Department made a communication dated 24.01.2020 to the Secretary, APSC. In the said communication, upon a due consideration of the representations of the petitioners for a relaxation of the upper age, it was provided as under:- 'It appears that both of them have exceeded the upper age limit of 38 years for applying for Govt Service. But both are below 45 years in terms of Govt OM Dated 4.1.1992 for condonation of age. It is submitted that both the candidates are now working in a Project under Fishery Department on contractual basis and have gathered sufficient experience in the activities of the Department. Besides, both the candidates are on the verge of exceeding maximum age for condonation and as such this may be their last opportunity to apply. Thus, Govt is of the view that their cases deserve consideration, if the Commission finds them suitable for the post on merit not withdrawing their age. In view of above, Commission is requested to accept their applications and make final recommendation or otherwise in terms of Para (4) of Govt OM dated 27.3.1980 based on their performance in the interview to be conducted by the Commission not withstanding their age.' 3. In view of above, Commission is requested to accept their applications and make final recommendation or otherwise in terms of Para (4) of Govt OM dated 27.3.1980 based on their performance in the interview to be conducted by the Commission not withstanding their age.' 3. A reading of the above extracted portion of the communication of the Fisheries Department makes it discernible that the Fisheries Department was of the view that the petitioners had gathered sufficient experience in the activities of the department and therefore, the department feels it desirable that they would serve the public interest of the department, if selected on merit. Accordingly, the APSC was requested to accept their applications and make a final recommendation in terms of an Office Memorandum dated 27.03.1980. But in response thereof, the APSC issued a list of candidates whose applications were rejected wherein the names of the petitioners finds place at Sl No.11 and 12 respectively and the reasons for their rejection were stated to be over age. In other words, it has to be inferred that the APSC had rejected the relaxation of the age of the petitioners and therefore, their names appeared in the list of rejected candidates. 4. This writ petition is instituted assailing the said decision of the APSC to reject the applications of the petitioners. It is stated that the interview for the post of Fishery Development Officer and Allied Cadres are scheduled to be held on 20.03.2020 and 21.03.2020. In view of the aspect that there is hardly any time left for issuing notice to the parties and adjudicating the matter and also the aspect that certain infirmities had been noticed, which would be within the realm of interpreting the relevant law and whether it was followed or not, we propose to dispose of the writ petition in the stage of motion itself in the following manner, which again has been agreed to by the learned counsel for the parties. 5. We have taken note of that in the communication dated 24.01.2020 of the Fisheries Department by which the upper age limit of the petitioners stood relaxed, the APSC was requested to accept the applications of the petitioners and make a final recommendation on the basis of their performance in the interview to be conducted by the APSC notwithstanding their age. We have taken note of that in the communication dated 24.01.2020 of the Fisheries Department by which the upper age limit of the petitioners stood relaxed, the APSC was requested to accept the applications of the petitioners and make a final recommendation on the basis of their performance in the interview to be conducted by the APSC notwithstanding their age. It is further taken note of that the said request by the Fisheries Department was made pursuant to the Office Memorandum dated 27.03.1980 of the Government of Assam, which apparently provides the manner in which the upper age limit of a candidate may be relaxed. But we have taken note of that by the judgment dated 03.08.2015 in WP(C) No.845/2014, this Court held that the Office Memorandum dated 27.03.1980 cannot be stand the test of Article 14 of the Constitution of India and therefore, it was struck down by declaring it to be invalid. In other words, in view of the aforesaid judgment of this Court in WP(C) No.845/2014, the Office Memorandum dated 27.03.1980 is no longer in operation. It is stated that as a consequence of the Office Memorandum dated 27.03.1980 being struck down, the relevant provisions as regards relaxation of the upper age limit is now governed by the earlier Government Notification No.AAP-34/50/27 dated 03.05.1951. Clause 4 of the Notification dated 03.05.1951 provides for the manner and procedure by which the upper age limit can be relaxed. Clause 4 of the Notification dated 03.05.1951 is extracted as below:- 4. In pursuance of the provisions of Article 309 of the Constitution of India , the Governor of Assam is pleased to make the following general rules regarding relaxation of the age limit for recruitment to civil services or civil posts in connection with the affairs of the State of Assam- (1) Notwithstanding anything to the contrary in rules regulating the maximum or minimum age of recruitment to a service or post in connection with the affairs of the State of Assam, the age limit may be relaxed in favour of any candidate or class of candidates only if (i) in cases in which the appointing authority is the Governor, or (ii) in other cases, the Head of the Department, considers this necessary in the interest of fair dealing or in the public interest. (2) In this rule Head of Department means the authority who is declared to be the Head of the Department for the purpose of the Fundamental Rules and of the Subsidiary and Supplementary Rules made by the State Government, and includes a District and Sessions Judge. (3) In case in which recruitment is made through the Public Service Commission, the Commission shall be consulted before the rule is relaxed. 6. As per the Notification dated 03.05.1951, there is a requirement of a consultation with the APSC in the event a Government Department desires to relax the upper age limit of a candidate in a given case or circumstance. From the communication dated 24.01.2020 of the Joint Secretary to the Government of Assam in the Fisheries Department, it is apparent that the Fisheries Department on their own had taken the final decision on the relaxation of the upper age of the petitioners and thereafter requested the APSC to accept their applications and make a final recommendation on merit and the source of the power for the purpose was traced to be the Government Office Memorandum dated 27.03.1980. As the said Office Memorandum is not in force, we are of the view that as the source of the authority of the Government Department itself was interfered, therefore, the Fisheries Department did not have the complete authority on their own to relax the upper age limit without there being a consultation with the APSC as required in the Notification dated 03.05.1951. 7. From the list of rejected candidates published by the APSC, it is not discernible that the APSC had rejected their candidature upon exercising its power of consultation as provided in the Notification dated 03.05.1951 and it appears to be an unilateral decision of the APSC to reject the candidates on the ground of being over aged. The Notification dated 03.05.1951, which is presently in force provides that notwithstanding anything contrary to the Rules, the maximum or minimum age of recruitment may be relaxed in favour of any candidate or class of candidates, if amongst others, the Governor or the Head of the Department, as the case may be, considers it necessary in the interest of fair dealing or in the public interest to relax such age. But again when the recruitment is made through the Public Service Commission, the Commission is required to be consulted before the age is relaxed. 8. But again when the recruitment is made through the Public Service Commission, the Commission is required to be consulted before the age is relaxed. 8. In the instant case, a reading of the communication dated 24.01.2020 would show that the Fisheries Department of the Government of Assam, had considered it necessary in the interest of fair dealing or in the public interest to relax the upper age limit of the petitioners. In such circumstance, we are of the view that under Clause 4(3) of the Notification dated 03.05.1951, the APSC in furtherance of the consultation that is required under the said Notification dated 03.05.1951 is now required to make an application of its own mind as to whether the age is required to be relaxed or not. 9. As already indicated, from the list of rejected candidates, it does not appear that the APSC has passed a reasoned order pursuant of the required consultation and for the limited purpose, we interfere with the rejection of the petitioners and require the APSC to make its own application of mind in furtherance of the requirements of a consultation under Clause 4(3) of the Notification dated 03.05.1951 as regards the proposal of the Fisheries Department considering it necessary in the interest of fair dealing or in the public interest to relax the upper age limit of the petitioners. 10. In view of the above, this writ petition is disposed of directing the respondent APSC to pass a reasoned order in furtherance of the consultation as required under Clause 4(3) of the Notification dated 03.05.1951 in respect of the proposal of the Fisheries Department to relax the upper age limit of the petitioners, which was found necessary in the interest of fair dealing or in the public interest as appeared in the communication dated 24.01.2020. 11. The required consultation and the resultant reasoned speaking order be passed on or before 19.03.2020 inasmuch as, the interview is scheduled to be held from 20.03.2020 onwards. With the above, the writ petition stands disposed of.