IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.360 of 2008 THE STATE OF BIHAR & ORS Versus RAMASHISH PRASAD YADAV ----------- For the Appellants : Mr. Sunil Kumar Mandal, Standing Counsel-XV For the Respondent : Mr. Jitendra Kumar Roy, Advocate ------------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ---------- Dated, the 24th July, 2008. We heard the Government counsel and the counsel for the respondent. 2. The Government counsel in challenging the legality and correctness of the order dated 20th September, 2007, passed by the Single Judge, raised two fold submission, namely, (One) that on the date of the application made by the petitioner, he did not fulfill the age eligibility as he was over-age on that date, and (Two) that as per the Government Circular dated 25th April, 1997, the minimum educational qualification for Class IV post is VIIIth pass, which also the respondent (original petitioner) does not possess. 3. Responding to the submissions of the Government counsel, Mr. Jitendra Kumar Roy, counsel for the respondent (original petitioner) submitted that after the year 1993, the - 2 - original petitioner had discharged the duty of chowkidar (Class-IV) and continued to discharge his duties upto the year 1997 and, therefore, the State Government ought to have relaxed the age eligibility in exercise of the powers conferred on it under Rule 54 of the Bihar Service Code. He would further submit that since the application was made in the year 1993 and at that time the educational qualification prescribed for Class IV post was VIIth pass, the said educational qualification is relevant and not the educational qualification prescribed vide Circular dated 25th April, 1997. 4. The Single Judge noticed the case of the petitioner that he had been in the continuous service on the post of Chowkidar for six years and allowed the writ petition by directing the District Magistrate, Sheikhpura to consider petitioner’s case for appointment on the post of Chowkidar giving age relaxation and by recommending his name before the appropriate forum for relaxation of age. It was further observed in the order, that in case such approval was granted by the State Government or the appropriate authority, the petitioner’s case be considered for appointment on the post of Chowkidar in Circle No.2/7 of Sheikhpura Town Police Station in the district of Sheikhpura. 5. Having thoughtfully considered the submissions of the counsel for the parties and the available material, we are of the considered view that the order of Single Judge dated 20th September, 2007 cannot be sustained. If the order of the Single Judge is allowed - 3 - to stand, it would tantamount the consideration of the petitioner’s case for appointment on the post of Chowkidar, de hors service rules, which cannot be done. Indisputably, on the cut off date in the month of June, 1993, the petitioner was over-age. Period of over-age is not important, it may be by five months and few days. It is also admitted by the counsel for the petitioner that up-to the cut off date, the petitioner had not served as Chowkidar in any of the police stations or in any of the Government offices. Since the petitioner was over-age and did not fulfill the age eligibility as prescribed in the Rules and there being no circumstance, much less extraordinary circumstance, justifying age relaxation, we find no justification in the order of the Single Judge. As a matter of fact, the petitioner did not seek age relaxation from the State Government or the authority authorized for that purpose under Rule 54 of the Bihar Service Code immediately after making application for appointment. It is for the first time that in the writ petition filed in the year 2000, such prayer has been made. We are afraid, the prayer did not merit consideration much less acceptance. 6. Moreover, it is pertinent to notice that save and except few ‘Kamaan Patra” placed on record by the petitioner, there is nothing to show that he had been in continuous service or worked continuously as Chowkidar for six years. The non-consideration of the petitioner’s candidature by the authorities for appointment to the post of Chowkidar for Circle No.2/7 of Sheikhpura Town Police Station by - 4 - the District Selection Committee, therefore, cannot be faulted. 7. By way of foot note, we may observe that the entire process of selection for the post of Chowkidar for Circle No.2/7 of Sheikhpura Town Police Station started in the year 1997. By this time, the Government Circular dated 25th April, 1997 had come into force. As per the said circular, the minimum educational qualification for the post of Chowkidar is VIIIth pass. The petitioner even does not possess that. 8. We are, thus, satisfied that the order dated 20th September, 2007 passed by the Single Judge cannot be sustained. Consequently, we set aside the order dated 20th September, 2007. As a result thereof the writ petition filed by the petitioner stands dismissed. 9. Letters patent appeal is disposed of accordingly. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-