For recruitment to two posts of Lower Division Assistant (unreserved) in the judgeship of Coochbehar, names of eligible candidates were requisitioned from the Employment Officer, Mathabhanga by the District Judge, Coochbehar (vide Memo dated 28.9.2004). On receipt of such requisition, the Employment Officer had sponsored names of 40 (forty) candidates, including the petitioner (vide Memo dated 19.11.2004). Due to administrative reasons, the said two vacancies could not be filled up resulting in return of the list of 40 (forty) candidates by the District Judge (vide Memo dated 18.7.2005). However, the Employment Officer was requested thereby to sponsor names of eligible candidates for immediate recruitment to 1 (one) post of Copyist (reserved for S.C.) and 1 (one) post of Typist-Copyist (unreserved) (hereafter the said post). The petitioner's name was re-sponsored by the Employment Officer for the said post. She was called upon by the Chairman of the Selection Committee being the District Judge (vide Memo dated 8.8.2005) to appear in the selection test. She competed with the other sponsored candidates who were contenders for the said post and ultimately was provisionally selected for appointment to the said post subject to police verification and medical test of fitness. A communication in this regard was made to her by the District Judge (vide Memo dated 16.9.2005).
In the form of notification of vacancies, the prescribed age limit for the said post was mentioned as "not below 18 years and not more than 37 years with relaxation as admissible according to rules".
Date of birth of the petitioner is 5.9.1967. Therefore, on 4.9.2004, she completed 37 years of age. Thus, when the District Judge sent the first requisition on 28.9.2004 seeking names of candidates for filling up the posts of Lower Division Assistant, the petitioner had not attained 37 years of age and was within the prescribed age limit.
However, when names of eligible candidates were requisitioned vide Memo dated 18.7.2005 for recruitment to the said post, the petitioner's age exceeded the higher limit and, therefore, her name could not have been sponsored. Yet, firstly due to lapse on the part of the Employment Officer and then again on the part of the Selection Committee, the petitioner was allowed to participate in the process of selection and she came out successful. It is on record that verification of the petitioner's antecedents was completed and she was also medically examined and found fit. However, appointment was not offered and she was unofficially informed that her appointment letter was withheld on the ground that she had crossed the age limit for appointment in Government Service. It was at this stage that she instituted the present proceedings. It appears from the Supplementary Affidavit filed by the petitioner that her name was sponsored earlier twice, first in 1991 and then again in 1998. She, however, could not secure public employment. Leaving aside the events of sponsoring of her name in 2004 and return thereof by the District Judge in July, 2005, sponsoring of her name by the Employment Officer thereafter for the said post rightly or wrongly was for the final time since she had completed 37 years of age.
It was submitted by Ms. Begum, learned Counsel appearing on behalf of the petitioner that 2004 should be reckoned as the year of sponsoring of her name since her name was initially sponsored against the first requisition for recruitment of Lower Division Assistants. If the petitioner despite being selected on merits by the duly constituted Selection Committee is denied employment only on the ground of age-bar, that would work out immense prejudice to her, and, accordingly, she prayed for a direction on the respondents to issue appointment letter without any delay.
Mr. Patranabish, learned Counsel for the respondents opposed the petition by submitting that 2004 can never be reckoned to be the year of sponsoring having regard to the fact that the process of recruitment in terms of the requisition dated 28.9.2004 could not be completed for administrative reasons. The process to fill up the said post was initiated in August, 2005 and since the petitioner had completed 37 years of age on the date of sending requisition, the respondents did not commit any error in withholding the appointment letter. According to him, the petitioner's name was sponsored by mistake and hence she cannot derive any advantage from such mistaken act. Learned Counsel for the parties have been heard. That the petitioner was barred in terms of the criterion regarding age mentioned in the requisition to the Employment Officer to participate in the process is not in dispute. However, a bare reading of the criterion also makes it clear that the prescribed age limit is not a rigid one, for, relaxation of age in terms of rules is permissible. The applicable rule is Rule 8 of the West Bengal Service Rules, Part I, which reads as follows :
"Condonation of excess in age on first appointment.
8. Heads of Departments may, in exceptional cases where they or their subordinate officers are competent to make the appointment and for reasons to be recorded in writing, condone an excess in age over the prescribed limit."
From the counter affidavit filed by the respondents, it appears that the criterion regarding age has been strictly construed and the aspect of permissibility to condone excess in age over the prescribed limit has been overlooked altogether.
In the considered view of this Court, the respondents erred in construing the condition of age for recruitment too strictly. The requisition to the employment exchange mentioned that relaxation of age limit would be permissible according to rules. Rule 8, extracted supra, permits relaxation of excess in age in exceptional circumstances and for reasons to be recorded in writing.
In the present case, it has not been shown that the petitioner was in any way instrumental in having her name sponsored for the said post. She competed with other contenders for the said post and was found by the duly constituted Selection Committee to be most suitable. On enquiry, it is learnt that the said post is vacant from 13.1.1998 till date; it has not been filled up due to pendency of the present petition. No other contender for the said post questioned the petitioner's participation in the selection process. None behind the petitioner in the merit list urged the authorities to appoint him in the said post. For them the panel that was prepared has lapsed. If a fresh selection process is to be undertaken, that would be time consuming. It is rather strange that the said post has been kept vacant for the last 10 years or more. Having regard to the increase in volume of work in the Courts, it is incomprehensible as to how the judgeship of Coochbehar has been functioning without the service of a Typist-cum-Copyist. The petitioner is a lady entitled to special provisions being made by the State in terms of Article 15(3) of the Constitution. By sponsoring her name only twice during the period of registration of her name with the concerned employment exchange, the State has not given her a fair deal. Now that she has been selected on merits, it would be an unfair action on the part of the State to deny her employment on the specious ground that when her name was sponsored for the said post, she had become age barred.
In normal circumstances, this Court would have directed the District Judge, Coochbehar to consider the claim of the petitioner for appointment upon application of Rule 8 of the West Bengal Service Rules, Part I. However, in view of the fact that condonation of age is permissible in terms of the applicable rules and that this is an exceptional case warranting different treatment, a reasonable approach has to be adopted. On the authority of the decisions of the Apex Court reported in AIR 1987 SC 537 and AIR 1989 SC 1607 holding that in an appropriate case Mandamus may be issued to reach injustice wherever found and that the Court of Writ may itself pass a direction which the appropriate authority ought to have passed in a given situation, this Court would accordingly direct the District Judge, Coochbehar to condone the excess in age of the petitioner and issue offer of appointment in her favour provided she is fit in all other respects. The offer of appointment shall be issued as early as possible but positively within four weeks from date of receipt of copy of this order. The writ petition is allowed.
There shall be no order for costs.
Urgent photostat certified copy of this judgment and order shall be furnished to the applicant as early as possible but positively within four days from putting in requisites therefor.
(DIPANKAR DATTA, J.)
