Md. Mojahid vs State Of West Bengal & Ors

Amrita Sinha, J

The petitioner is a Casual Worker of the Champdany Municipality. He is in service since 1st June 2007. He is a member of the OBC-A category.

The Municipality published an Employment Notice of appointment of Mazdoor in the said Municipality on 23rd December 2019. The maximum age

limit prescribed for being eligible to apply in terms of the said Employment Notice is 40 years. There is a provision for relaxing the upper age limit in

respect of OBC-A category candidate. The petitioner has crossed the maximum age limit as well as the relaxable age limit as prescribed.

The petitioner prays for a direction upon the Champdany Municipality to permit him to appear in the selection process for recruitment of Mazdoor in

the Municipality.

The petitioner relies upon an order dated September 27, 2019 passed in WP No. 19007 (W) of 2019 whereby a coordinate Bench of this court

permitted the petitioner therein to appear in the interview even though he had crossed the age bar. In the said order the court took into consideration

the decision of the larger Bench reported in 2013 (1) CHN (Cal) 9, Gobinda Chandra Mondal â€"vs- Principal Rabindra Mahavidyalay.a The court

directed the Municipality to allow the petitioner to submit his application and participate in the selection process.

The learned advocate appearing on behalf of the State respondents submits that as the petitioner has crossed the maximum age limit, accordingly, he is

not eligible to be appointed and/or participate in the selection process. It has been contended that as the recruitment rules do not permit relaxation of

the age limit accordingly the petitioner ought not to be given permission to appear in the interview by virtue of the order of the court.

The learned advocate representing the Municipality submits that the Municipality does not have any objection, if the court passes an order permitting

the petitioner to appear in the recruitment process along with other eligible candidates. The learned advocate however submits that in the event the

petitioner is successful in the recruitment process, he will not be entitled to any service benefits for the past service rendered by him as casual worker

of the Municipality.

After hearing the submissions made on behalf of both the parties it appears that the petitioner was well within the prescribed age when he was initially

appointed. He has been in service for a continuous period of more than twelve years.

The larger Bench in Gobinda Chandra Mondal (supra) laid down that if the appointment is made without undertaking selection procedure under Rule

on ad hoc or temporary basis engaging the candidates having requisite qualification at the time of appointment against substantive post the candidates

in those cases shall be allowed to complete and/or participate in the selection process along with other eligible candidates at the time of regular

recruitment process condoning the age as they have acquired the right to be considered.

Relying upon the aforesaid principle laid down by the larger Bench the instant writ petition is disposed of by directing the Champdany Municipality to

allow the petitioner to participate in the selection process to be held for appointment of Mazdoor, along with other eligible candidates, by condoning his

overage.

As regards the submission made by the leaned advocate for the Municipality regarding the terminal service benefits which will accrue in favour of the

petitioner in case he is selected in the selection process is an absolute fresh cause of action, no way related to the instant writ petition and, accordingly,

no order is passed with regard to the aforesaid submission. The same is not an issue to be decided in the instant writ petition. The parties shall be

entitled to approach the appropriate forum as and when such a cause of action arises.

W.P. No. 228 (W) of 2020 is disposed of.

Affidavit of service filed in court is taken on record.

Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.