Gauhati High Court
Dr. Himantha Saikia & Anr vs The State Of Assam And 5 Ors on 19 March, 2014
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No. 1409/2014
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
19.03.2014
Heard Mr. AK Sarma, learned counsel for the petitioners and
Ms. A. Verma, learned Standing Counsel, Health Department. 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, petitioners seek quashing of order dated 10.03.2014, passed
by the Commissioner & Secretary to the Govt. of Assam, Health &
Family Welfare Department, declaring that prayer of the petitioners'
for condonation of upper age limit cannot be considered at this stage.
Case of the petitioners is that they are working as Medical
Officer (Ayurvedic), under the respondent-State on contract basis. An
advertisement, being Advertisement No. 4/2013, was issued by the APSC, inviting applications from eligible candidates for filling up 53 posts of Medical Officer (Ayurvedic) under Health & Family Welfare (A) Department. It was provided that candidates should be within the age group of 21 years to 38 years as on 01.01.2013 to be eligible to apply with the rider that upper age limit was relaxable for reserved category candidates. Petitioners applied pursuant to the said advertisement. APSC in their official website uploaded a list of candidates, who had applied for the post of Medical Officer (Ayurvedic) pursuant to the said advertisement and whose applications have been rejected. In the said list, names of the two petitioners appeared at Sl. Nos. 64 & 73 respectively. Ground of rejection was shown as being overaged.
At this stage, the petitioners moved this Court by filing WP(C) No.1219/2014. It was pointed out by the learned departmental counsel that petitioners had not yet approached the authority concerned for relaxation of upper age limit and if such an approach was made even at that stage, necessary order would be passed at the earliest. The Court was also apprised that interview pursuant to the advertisement No. 04/2013 was scheduled from 11th to 14th March, 2014. Having regard to the above, this Court disposed of the writ petition vide order dated 05.03.2014 and passed the following order: -
"Having regard to the above and also the fact that the interview is scheduled to be held from 11th to 14th March, 2014, the writ petition is disposed of with the following directions:-
(i) The petitioners may file appropriate applications before the Commissioner & Secretary to the Govt. of Assam, Health and Family Welfare (A) Department by 07.03.2014, praying for relaxation of upper age limit together with a copy of the order passed today.
(ii) The Commissioner & Secretary thereafter by 11.03.2014 shall pass necessary order on the said applications to be filed by the petitioners.
(iii) In case, the upper age limit is condoned in respect of all or any of the petitioners, the APSC shall allow them to appear in the interview on a date to be fixed by them. Necessary call letter would be issued in that respect.
The writ petition is accordingly disposed of."
It appears that the petitioners submitted joint application dated 07.03.2014 before the Commissioner & Secretary, Health & Family Welfare Department, Govt. of Assam, requesting relaxation of upper age limit to enable them to appear in the interview.
Thereafter, Commissioner & Secretary, Govt. of Assam, Health & Family Welfare Department issued the impugned order dated 10.03.2014, which reads as under: -
"Seen the order of Hon'ble High Court in Case No. WP(C) No.1219/2014 dated 05.03.2014 with direction to pass necessary orders on relaxation of upper age limit in respect of Dr. Himanta Saikia & Dr. Homendra Kr. Nath.
Perused the joint petitions submitted by Dr. Himanta Saikia & Dr. Homendra Kr. Nath praying for age condonation.
Earlier APSC informed Govt. vide letter NO.2PSC/DR-2/2/2012-2013(Pt), dated 06.03.2014, WPC No. 1409 Of 2014 Page 2 of 5 that they are restrained to allow age relaxation in respect of over aged candidates at this late state.
It is seen that the applications of the applicants are rejected by APSC on the ground of overage. Besides the applicants did not apply for age condonation to the appointing authority within the stipulated time i.e. before last date of submission of application.
In view of the above the prayer of Dr. Himanta Saikia & Dr. Homendra Kr. Nath cannot be considered at this stage.
The petition is disposed of accordingly."
From a perusal of the impugned order dated 10.03.2014, it is evident that the application of the petitioners was rejected on two grounds. Firstly, in view of the APSC decision dated 06.03.2014 not to consider age relaxation in respect of overaged candidates and secondly, on the ground that petitioners did not apply before the appointing authority for age relaxation before the last date of submission of application.
Before examining the above two grounds for rejecting the application of the petitioners, it would be apposite to note that the Government of Assam in the Personnel (B) Department had issued office memorandum dated 27.03.1980 providing for relaxation of upper age limit in the matter of recruitment to public service. Though initially relaxation was permissible up to age of 40 years, the same has been enhanced to 45 years vide subsequent office memorandum of the same department dated 04.01.1992. A conjoint reading of the two office memoranda dated 27.03.1980 and 04.01.1992 would show that the power to grant relaxation of upper age limit has been extended up to the age of 45 years. However, such relaxation may be allowed in case of those who are in the services of the State Government. 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 WPC No. 1409 Of 2014 Page 3 of 5 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. 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.
Coming back to the grounds for rejection of the application of the petitioners, the second ground may be taken up at the first instance. It is the stand of the Health Department that petitioners did not apply for age condonation to the appointing authority before the last date of submission of application. On this ground, the respondents could not have rejected the application of the petitioners in view of the clear direction of this Court in the previous order dated 05.03.2014. Petitioners had submitted their application to the departmental Commissioner & Secretary on 07.03.2014 as per the above direction of this Court. Therefore, the above ground for rejection of the application of the petitioners is wholly unsustainable and cannot be accepted.
Coming to the next ground of rejection i.e., rejection of the application on the ground of overage as per APSC letter dated 06.03.2014, learned Standing Counsel, APSC has produced before the Court a copy of the aforesaid letter dated 06.03.2014, which shows that APSC had accepted applications of those candidates who were recommended by the appointing authority in terms of the office WPC No. 1409 Of 2014 Page 4 of 5 memoranda dated 27.03.1980 and 04.01.1992. The cases of those candidates not recommended by the appointing authority were not accepted. Admittedly, petitioners had filed their joint application on 07.03.2014 i.e., after the letter of the APSC dated 06.03.2014 on the strength of the order of this Court dated 05.03.2014. In terms of the aforesaid direction of this Court and as contemplated by the above two office memoranda, the appointing authority should have referred the case of the petitioners to the APSC for a decision on merit.
At this stage, Mr. C Baruah, learned Standing Counsel, APSC made a statement before the Court that as per instructions, if the appointing authority still forwards the applications of the petitioners to the APSC, APSC would consider their prayer and allow them to appear in the interview, which would be rescheduled by condoning their overage.
Statement made by the learned Standing Counsel, APSC is noted.
Accordingly, Commissioner & Secretary to the Govt. of Assam, Health and Family Welfare (A) Department shall now forward the application of the petitioners dated 07.03.2014 to the APSC, who may take necessary consequential steps in the light of the statement made at the Bar by Mr. C Baruah, learned Standing Counsel, APSC.
Writ petition is disposed of in the above terms. No costs.
Judge Beep WPC No. 1409 Of 2014 Page 5 of 5