WP(C) 1084/2011 BEFORE HON’BLE MR.JUSTICE N.KOTISWAR SINGH Heard Mr. A.M.Barbhuiya, learned counsel appearing for the petitioner and also heard Mr. H.Rahman and Mr.P.J.Talukdar, learned counsel appearing for the respo ndents . [2] The petitioner has filed this writ petition claiming appointment to the post of constable in the Assam Police. The case of the petitioner, in b rief, is that the petitioner is the son of one Siraj Uddin Ahmed, who was servin g as Asstt. Sub-Inspector of Police under the Home Department of Assam. While he was serving under the office of the Superintendent of Police, Sonitpur, Assam, his father expired on 25.01.2001 leaving behind the petitioner’s mother and thre e other brothers including the present petitioner. Thereafter, on the request of other family members of the petitioner, the petitioner applied before the Super intendent of Police, Sonitpur on 31.3.2001 for appointment under the compassion ate ground under 5% reserved quota as per the policy decision of the State Gover nment. It is the case of the petitioner that the authority was considering the appointment of the petitioner. A W.T.Message was sent through the Officer-in-Cha rge of Silchar P.S. informing the petitioner to appear for interview on 25.8.2 001 (Annexure-2). However, the result of the aforesaid interview was not made kn own to the petitioner. Thereafter, on 21.8.2004, an advertisement was issued for regular recruitment for constable where it was also provided for maintaining 5% reserved quota for compassionate appointment. The petitioner participated in th e aforesaid recruitment process and he was duly selected as can be seen from the list of Selected candidates for the post of Constable (AB/UB) of Sonitpur Distr ict at Annexure-3. The name of the petitioner appears at Sl. No.15 of the afores aid list of selected candidates. It is the case of the petitioner that even tho ugh he was selected in the year 2004 for appointment as constable, he has not b een given appointment in spite of being given assurance one after another by the authorities that he will be given appointment. [3] The petitioner submits that the recruitment process which was co mpleted and Select List made on the basis of the recruitment process as per adve rtisement dated 21.8.2004 was mired in controversy, which led to a series of lit igation before this High Court, which ultimately reached the Hon’ble Supreme Cou rt and the petitioner has drawn attention to Annexure-4 which is the judgment o f the Supreme Court finally deciding the issues. The Supreme Court vide judgment and order dated 27.2.2008 had disposed of all the related matters relating to r ecruitment process initiated in 2004 by setting aside the judgment and orders of the learned Single Bench as well as the Division Bench of this Court as regards the three districts of Dhubri, Barpeta and Sonitpur Districts whereby the High Court had set aside the Select List. The contention of the petitioner is that i n view of the aforesaid decision of the Hon’ble Supreme Court which has put the stamp of finality on the issue, the petitioner ought to have been given appointm ent as a constable on the basis of the Select List which has not been disturbed by the Supreme Court. [4] Affidavit-in-opposition had been filed on behalf of the responde nt No.4 in this case and the respondent No.4 has explained the reason why the p etitioner was not given appointment. In the aforesaid affidavit-in-opposition fi led on behalf of the respondent No.4, it has been stated that as per advertiseme nt issued on 21.8.2004, a candidate must have passed Class-VIII and he must be a bove 18 years and below 25 years of age on 01.01.2004 but the petitioner was fou nd over-aged. According to the documents, his date of birth is 1.6.1978 and as s uch, he was found to be 25 years and 7 months old as on 01.01.2004. In the affi davit-in-opposition, it has also been stated that an order was passed by the Pri ncipal Secretary to the Govt. of Assam to the Director General of Police and Ins pector General of Police, Assam on 07.3.2008 (vide Annexure-5 to the writ petiti on) directing them to comply with the order of the Hon’ble Supreme Court but it was also provided in the said letter that at the time of selection, the age of the selected candidates should be properly verified on the basis of the original records available and if any candidate is found underage/overage, no appointmen t should be issued to him/her as directed by the Hon’ble Court. Therefore, it was stated that since the petitioner was found over-aged, no appointment could be issued in his favour. [5] I have heard the counsel for the petitioner as well as for the r espondents. This matter had engaged the attention of this court yesterday and t he counsel for both the parties were heard at length yesterday and today. I pro pose to dispose of this writ petition in view of the short facts and issue invol ved in the case. [6] The petitioner states that he had applied for appointment under die-in-harness scheme in the year 2001 soon after his father had expired and ult imately, he was selected for appointment as constable in the year 2004 as per t he advertisement issued in 2004. The petitioner therefore, contends that having been selected he was entitled to be given appointment, more particularly, in view of the fact that the Hon’ble Supreme Court in the aforesaid judgment and or der 27.2.2008 had affirmed the aforesaid Select List as far as Sonitpur Distric t is concerned, with which the present petitioner is concerned. To this, learned counsel appearing for the respondents had vehemently argued that the petition er cannot be given appointment as constable even though his name was included in the Select List because of the fact that he was over-aged. As per the notificat ion issued in 2004, age limit is 25 years. However, as per the birth certificate produced by the petitioner, he is found to be over-aged by seven months, theref ore, being over-aged, he cannot be given appointment to the post of constable. The contention of the state respondents is also that the petitioner has prayed f or appointment under 5% quota of die-in-harness scheme and he has not made any s pecific prayer for appointment as per the advertisement issued in the year 2004 and as such, since he was recommended and included in the Select List prepared i n terms of the advertisement of 2004, he is not entitled to be appointed. Thirdl y, learned counsel appearing for the respondents had drawn the attention of thi s Court to Annexure-5 to the writ petition which is the letter written by the Pr incipal Secretary of Govt. of Assam to the Director General of Police and the In spector General of Police, Assam dated 7.3.08 where it has been specifically men tioned that the age of the selected candidates should be properly verified on t he basis of the original records available before issuing appointment letters an d if any candidate is found underaged/overaged no appointment letter should be i ssued to him/her as directed by the Hon’ble Court. Therefore, in view of the ab ove direction, which was purportedly issued pursuant to the direction by the Hon ’ble Court, the petitioner cannot be given appointment to the post of constable . [7] I have considered the claims and rival claims of the parties. [8] It is seen from the petition that the petitioner has clearly sta ted in his writ petition saying that he had applied for appointment under die-i n-harness scheme in 2001 for which certain steps were already taken for conside ration for his appointment. The petitioner specifically states that he again app lied for appointment under the die-in-harness quota when the advertisement was i ssued again in 2004. It is the contention of the petitioner that since he had al ready applied under the die-in-harness scheme in 2001 when he was within the per missible age limit, he could have applied again in 2004 under the die-in-harness scheme, which he did. Thus, having selected, he has a right to be appointed. In para No.5 of the affidavit-in-opposition filed on behalf of the respondents, it has been admitted by the respondent No.4 that the case of the petitioner was a lso considered in 2001, as can be seen from Annexure-2 to the writ petition. It has also been stated that the petitioner appeared in the interview at the recru itment rally held in the month of December, 2004 pursuant to the advertisement i ssued on 21.8.2004. However, the authorities have not come out with a very categ orical statement that the petitioner was considered solely on the basis of 2004 under the unreserved category and had nothing to do with the request of the pe titioner for appointment under 5% reserved for die-in-harness quota. In this reg ard, it may also been mentioned that the process for appointment in 2004 also in cludes appointment with respect to 5% reserved quota for die-in-harness scheme, which is clearly evident from the judgment and order of the Hon’ble Supreme Cour t, which has been annexed as Annexure-4 to the writ petition. In para No.4 of t he judgment and order of the Hon’ble Supreme Court, while referring to the recru itment notification, it also mentioned about the provision for 5% reserved quota for compassionate appointment. Therefore, it will not be illegal or unreasonabl e to hold that since consideration of the petitioner was already done in 2001 w hen he was within the age limit when he applied for appointment in 2001 against the 5% reserved quota for compassionate appointment, his case could also be cons idered in the aforesaid 5% reserved quota for compassionate appointment in 2004. [9] Even if assuming for the sake of argument that the age of the pe titioner is to be determined with reference to the notification in 2004 by which the petitioner is admitted to be over-aged by seven months, the issue of undera ge and overage was also an issue, which was before the High Court as well as bef ore the Hon’ble Supreme Court relating to the recruitment under the notification of 2004. In this regard, one may refer to para No.17 of the judgment and order dated 27.2.2008 of the Supreme Court passed in Civil Appeal No.1609 of 2008 and related civil appeals in which the Supreme Court has clearly mentioned that whil e quashing the Select List by the High Court, the High Court also took into cons ideration of the fact of some of the selected candidates being underage. The rel evant portion, which is quoted, as below:- The learned Judge also gave example of two selected candidates being under-age. It is on this basis that the selection of Sonitpur District was set aside. Therefore, one can draw an inference that the issue of under-age which was being considered and decided by the High Court was also taken note of by the Hon’ble Supreme Court while passing the aforesaid judgment and order dated 27.2.2008. Th erefore, if the petitioner was really over-aged he was not entitled to be includ ed in the Select List, the authorities at the relevant point of time never raise d this issue before the High Court as well as before the Supreme Court and all the while defended the Select List. In view of the fact that the Hon’ble Supreme Court, in respect of the selected candidates, has decided not to interfere wi th the Select List on the basis of being under-age, it can be also considered th at it would not affect the cases of over-aged candidates. Therefore, in my opini on the issue of petitioner being over-aged would be hit by the principles of wai ver and the respondents authorities would be barred from raising such a plea at this belated stage. [10] It is also to be noted that on this issue of being over-age, whi ch is stated to be a disqualification for the petitioner to be appointed, the au thorities never applied their mind at any point of time after the said list wa s published in 2004 vis-a-vis the petitioner. Only after the writ petition has b een filed the respondent No.4 has chosen to take this plea that the petitioner i s over-aged. It may also be mentioned that when the Principal Secretary to the G ovt. of Assam issued direction to the DGP and IGP, Assam on 7.3.08 on the basis of the aforesaid letter, it seems the authorities never undertook this exercise and informed the petitioner accordingly that he being over-aged and that he wou ld not be entitled to be appointed. In view of the position as narrated above, it can be presumed that the respondents were aware of the over-age of the petiti oner but choose to condone it. Otherwise, the respondents would have informed t he petitioner at the earliest that he is barred from being appointed because of his being over-aged. In this regard, one may also notice that the issue relatin g to qualification in any recruitment relating to age is not sacrosanct unlike the case of essential qualification like educational qualification, etc. There h ave been many instances before this Court as well before the Hon’ble Supreme Cou rt where in the peculiar facts and circumstances, the Court had been pleased to condone any such age bar. In this regard, one may refer to certain decisions of the Hon’ble Supreme Court reported in Raja Ram Sharma & ors. vs. Sarvhitkari Ju nior High School & anr., (2007) 12 SCC 52 and Paschimbanga Prathamik Siksha k Sikshan Prapts Bakar-O-Sikshak Samiti & ors., (1996) 7 SCC 333. Therefore, dep ending on the facts and situation, the Courts have been passing orders for relax ation of age limit. In the present case, considering the peculiar facts of the case, it would not be unjustified for the Court also to direct such relaxation o f age by seven months. However, in view of the fact that this Court has already come to a conclusion that the respondents shall be deemed to have condoned the seven months excess in respect of the petitioner or shall be deemed to have waiv ed to raise such an objection at this stage, there may not be any necessity for the Court to exercise such a discretion. [11] It has also been the contention of the respondent No.4 that they were abiding by the decision of the High Court as contained in para No.3 of the aforesaid letter dated 7.3.2008. However, the learned counsel appearing for th e respondents has not been able to show to this Court any such direction issued by this Court where it has been stated that before issuing appointment letters, if any candidate is found to be under-age or over-age, no appointment letter sh all be issued. An attempt was made to refer to the decision of this Court in the aforesaid cases arising out of 2004 advertisement. However, as discussed above, since Hon’ble Supreme Court has upheld the Select List and interfered with the decision of this Court, such direction, if any, at all issued by the High Court may not be applicable as the matter has now been finally settled by the Supreme Court. The learned counsel appearing for the respondents has not able to show any such direction. The learned counsel appearing for the respondents also has vehemently urged that the petitioner has not sought for appointment under the S elect List of 2004 but under the 5% reserved quota for compassionate appointmen t, and accordingly, he is not entitled to such relief. In this regard, we have a lready examined the recruitment process under which the petitioner had participa ted for appointment under die-in-harness scheme in 2001 and since there was also a specific provision for appointment under die-in-harness scheme under the afor esaid 2004 advertisement also which was also mentioned in the writ petition and since the government authorities, in their affidavit-in-opposition, have not cle arly denied such averments, the objection can not be entertained. [12] The fact remains that the petitioner had been duly selected unde r the aforesaid recruitment process initiated vide advertisement dated 21.8.2004 which also provided for reservation for quota for die-in-harness cases and the only ground for denial for appointment is that he was over-aged by seven months. For the reasons stated above, this Court has already come to the conclusion tha t the aforesaid excess month of seven months shall be deemed to have been condon ed. In view of the peculiar facts and circumstances and for the reas ons as discussed above, I am of the opinion that the petitioner is entitled to b e given appointment by virtue of the Select List of 2004, where his name was inc luded. [13] In view of the observations and findings of this Court, the pres ent writ petition is allowed with the directions to the respondents to afford ap pointment to the petitioner to the post of constable within a period of one mont h and the petitioner shall be entitled to all the benefits as enjoyed by the oth er appointees selected on the basis of the Select List of 2004.