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2020 DIGILAW 415 (GAU)

Uttam Kumar Nath v. State Of Assam

2020-03-20

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT 1. Heard Mr. JUNM Laskar, learned counsel for the petitioner. Also heard Mr. S.S. Roy, learned counsel for the respondents No.3 and 4 and Ms. N. Bordoloi, learned counsel for the respondents No.1 and 2. 2. The petitioners herein are all matriculates and they have been successfully completed the special final examination of Special Record Certificates Class Course Training from the Assam Survey and Settlement Training Centre. By virtue of such qualification although they are duly qualified to be appointed as mandal in the Land Revenue department of the Govt. of Assam, but the earlier attempts of the petitioners to get such appointment were unsuccessful. In the resultant situation, they are again interested to participate in the selection process for appointment of mondol as per the advertisement No. CSO.27/2011/Pt-II/1430 dated 16.03.2020 issued by the Settlement Officer, Cachar and Hailanakdi district at Silchar. The only inhibition of the petitioners is that the advertisement provides that the candidates be between 18 years to 38 years as on 01.01.2020 which is relaxable by 5 years in case of ST/SC candidate 3 years in case of OBC and MOBC and 10 years for the category of candidates who are people with disability. The petitioners do not belong to either of the class for which the relaxation is provided in the advertisement itself. 3. The respective date of birth of the petitioners are stated in paragraph-2 of the writ petition which is as under:- Sl No. Date of Birth Petitioner No.1 27.04.1971 Petitioner No.2 31.07.1972 Petitioner No.3 01.03.1975 Petitioner No.4 01.01.1972 Petitioner No.5 01.03.1974 Petitioner No.6 01.02.1975 Petitioner No. 7 01.09.1968 Petitioner No.8 01.09.1973 Petitioner No.9 01.11.1971 4. A reading of the date of birth clearly reveals that the petitioner No.7 would be about 52 years as of now, the petitioner No. 1 would be about 48 years and the petitioner Nos. 3 and 5 would be about 45 years and they are amongst the youngest within the petitioners. 5. In the resultant situation, this writ petition is instituted with the prayer that the respondents be directed to accept the candidature of the petitioners for the post of mandal pursuant to the advertisement dated 16.03.2020 by granting the relaxation of their age and by giving due weitage to the departmental training gained by them. 6. 5. In the resultant situation, this writ petition is instituted with the prayer that the respondents be directed to accept the candidature of the petitioners for the post of mandal pursuant to the advertisement dated 16.03.2020 by granting the relaxation of their age and by giving due weitage to the departmental training gained by them. 6. Although the prayer for giving weitage to the departmental training is made in the writ petition, but it had been clarified by Mr. S.S. Roy, learned counsel for the respondents that the special final examination of the Special Record Certificate Class Course Training successfully completed by the petitioners from the Assam Survey and Settlement Training Centre was for acquiring the essential qualification for the post of mandal and it is not a departmental training imparted to the candidates which may result in a legal right being accrued to them for the purpose of appointment. In order to substantiate his stand Mr. S.S. Roy, learned counsel refers to the essential qualification required under the advertisement of 16.03.2020 which provides that one of the essential qualification would be a successful completion of the six month Record Certificate Class Course Training from the Assam Survey and Settlement Training Centre at Dakhingaon Guwahati. 7. Accordingly, as per the provision in the advertisement itself, it cannot be accepted that the training underwent by the petitioners was a departmental training entailing them to any legal right for being appointed as a mandal in the Land Revenue department of the Govt. of Assam. 8. As regards the relaxation of the age, we take note of that earlier the provision thereof was governed by the office memorandum dated 27.03.1980 but by the judgment and order dated 03.08.2015 in Pranab Kumar Deka and Others -vs- State of Assam and others reported in 2015 (4) GLT 103 , the office memorandum of 27.03.1980 was struck down as invalid. In the resultant situation, the relaxation of the upper age limit of a perspective candidate to a government service is now being governed by the government notification No.AAP-34/50/27 dated 30.05.1951. The relevant provision for relaxation of age limit as per the notification of 30.05.1951 is extracted as under:- 'AAP.34/50/27, General rules for relaxation of age limits 3.5.1951 4. In the resultant situation, the relaxation of the upper age limit of a perspective candidate to a government service is now being governed by the government notification No.AAP-34/50/27 dated 30.05.1951. The relevant provision for relaxation of age limit as per the notification of 30.05.1951 is extracted as under:- 'AAP.34/50/27, General rules for relaxation of age limits 3.5.1951 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.' 9. The extracted portion providing for relaxation of age makes it explicit that the upper age limit may relaxed in favour of any candidate or class of candidate, either by the Governor if he is the appointing authority or by the Head of the Department, if the Head of the Department is the appointing authority, as the case may be and such relaxation can be made if the authority concerned deems that a relaxation is necessary in the interest of fair dealing or in the public interest. 10. 10. In view of the explicit provisions of the notification dated 03.05.1951, we are of the view that it would be inappropriate for the Court in exercise of the jurisdiction under article 226 of the Constitution of India to relax the upper age of a given candidate on its own without requiring the appropriate authority under the notification dated 03.05.1951 to exercise its discretion. 11. Accordingly, we direct the petitioners to file appropriate representation before the Head of the Department, which would be the appropriate authority in the instant case seeking relaxation of the upper age limit and in the event such representation is filed, the concerned Head of the Department shall give a due consideration to it strictly in terms of the provision of the notification dated 03.05.1951 i.e. by arriving at a satisfaction that the relaxation is necessary in the interest of fair dealing or it is required in the public interest and pass a reasoned order thereof. 12. As the last date of submission of application is stated to be 23.03.2020, the petitioners are directed to submit representation in course of the day itself and upon it being filed, appropriate orders be passed on or before 23.03.2020 so that in the event any favourable order, the petitioners can submit their application forms before 5.00 pm of 23.03.2020. It is provided that the requirement be done by the Head of the Department as indicated above without any deviation. Writ petition stands disposed of.