JYOTSNA DEVI Vs. STATE OF ASSAM

JUDGEMENT

(1.) We have heard learned counsel, Mr. Rituraj Biswas and Mr. Chinmoy Pradip Sharma, Sr. AAG. Respondent No.5, despite the service of notice of the pending proceedings, is not represented.

(2.) The Appellant assails the order dtd. 24/5/2023, in Review Petition No. 175 of 2017, and the order dtd. 24/2/2012 in Writ Appeal No. 262 of 2011 in the Gauhati High Court at Gauhati. The journey of the litigation dates back to the advertisement dtd. 28/2/2006, issued by Respondent No. 3 to fill a vacant post of Lecturer in History. The Appellant and Respondent No. 5 have participated in the selection process, and by the resolution dtd. 24/7/2006, the Governing Body of Respondent No. 3 - College, having noticed the relatively better merit and suitability of the Appellant, resolved to select the Appellant. On the even date, the Governing Body forwarded the resolution to Respondent No.1/Government for approval. At this juncture, we notice the undisputed facts that the Respondent No. 3 is an aided institution as on the date of selection process. Therefore, the selection process was set in motion by referring to the Assam Government Aided Junior College Management Rules, 2001 (for short "2001 Rules"). The advertisement does not stipulate an upper or lower age limit as a qualification or disqualification, as the case may be, for applying for the post of Lecturer in History. The Respondent No. 1, on the request of Respondent No. 3, vide communication dtd. 13/10/2006, exercising its jurisdiction/discretion, communicated to Respondent No. 3, condoning the alleged overage of 2 years 7 months of the Appellant. On 22/3/2007, the Respondent No. 2 approved the appointment of the Appellant as a Lecturer. The Appellant entered service of Lecturer in Respondent No. 3- College. Respondents Nos. 1 and 2 admit that the Appellant has put in a continuous service of 18 years as Lecturer in History in Respondent No. 3 - College. Respondent No. 5 filed a Writ Petition No. 1707 of 2007 challenging the order of approval dtd. 13/10/2006, condoning the over-age of 2 years 7 months and the order dtd. 22/3/2007 approving the Appellant 's appointment. The case of Respondent No. 5, briefly stated, is that the Appellant was aged 39 years at the time of advertisement or during appointment to the post of Lecturer. The advertisement is issued referring to the 2001 Rules. However, according to the Assam Secondary Education (Provincialisation) Service Rules, 2003 (for short "2003 Rules"), the prescribed age limit for a candidate being recruited is between twenty-one to thirty-six years. The order condoning the over-age is illegal and contrary to the 2003 Rules. The case of Respondent Nos. 1 to 3 was that the 2003 Rules, at the time of issuance of the advertisement, had no application to College of Respondent No.3, and that the advertisement was issued referring to the 2001 Rules. There is a difference between an appointment in an aided institution and in a Government College. In the absence of a provision stipulating which one of the enactments is applicable, viz., Assam Higher Secondary Education Act, 1984 or The Assam Secondary Education (Provincialisation) Act, 1977, the discretion exercised by the Respondent No. 1 in abundant caution does not give a cause to a candidate at serial no. 2 to challenge the appointment of Appellant who stood at serial no.1. The Learned Single Judge on 30/3/2010 dismissed the Writ Petition. A few of the findings recorded by the order dtd. 30/3/2010 are very apt for understanding the fact in issue, and read as follows:

(3.) The Respondent No. 5 filed Writ Appeal No. 262 of 2011. The Division Bench, vide impugned order dtd. 24/2/2012, allowed the Writ Appeal. The order dtd. 24/2/2012 notices that the 2001 Rules do not provide for any age limit, but Rule 19(iv) of the 2003 Rules has to be applied together with the decision in Shankar K Mandal & Ors. v. State of Bihar & Ors.; 2003 9 SCC 519. The following finding has been recorded: