Courts are slow to interfere with any stated stipulation with regard to age made by the state policy: High Court of Meghalaya

Serial No. 06 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG WP(C) No. 3616 Date of Decision: 08.10.2021 Smti Hanna Ch. Marak State of Meghalaya Vs. Hon’ble Mr. Justice H. S. Thangkhiew Judge Ms. D. Mawthoh Adv. vice Mr. A.H. Hazarika Adv. Mr. K.P. Bhattacharjee GA For the Petitioner(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: ii) Whether approved for publication in press: This instant writ application has been filed by the writ petitioner seeking relaxation and condonation of her age for appearing in any future selection process to the post of Auxiliary Nurse Midwife ANM) and in addition has also prayed for regularization and also that she not be ousted from service during the pendency of the writ petition. Ms. D. Mawthoh learned counsel for the petitioner submits that the petitioner was initially appointed on 16.03.2010 as an Auxiliary Nurse Midwife on contract basis for a period of 11(eleven) months and has since continued in the said post after extensions were given from time to time till date. Learned counsel submits that on 19.07.2016 an advertisement had been issued for recruitment to a large number of Auxiliary Nurse Midwife posts with the qualifications prescribed therein of S.S.L.C. passed with 18(eighteen) months Training Course of Nursing and an age limit 18 to 27 years relaxable by 5(five) years for Scheduled caste and Tribe candidates. Learned counsel further submits that at that point of time the petitioner had applied for the said post but her application was not accepted on the ground that she was over aged and that though a representation was made before the State respondents the same was rejected. Being faced with this situation learned counsel submits the writ petitioner is before this Court by way of the instant writ petition seeking relaxation of age for any fresh selection. Mr. K.P. Bhattacharjee learned GA for the State respondents on instructions received which have been produced before this Court today submits that by the Notification dated 02.05.2018 an amendment was made to the Meghalaya Nursing Service Rules especially Rule 9 which provides that in the case of candidates belonging to Scheduled Tribes and Scheduled Castes the upper age limit shall now be relaxable by 10(ten) years meaning thereby that candidates who have not yet attained the age of 37(thirty seven) years would be eligible to apply for any selection. He submits that the present writ petitioner therefore would not be qualified to apply for any future selection in view of the prescribed age limit. The learned GA has also produced the most recent communication whereby an advertisement has been issued on 06.10.2021 by the respondents for recruitment to 132 posts of Auxiliary Nurse Midwifefor which she possesses the requisite qualifications. Prescription of age limit and relaxation is made in furtherance of the policy of the State and the same constitutes a policy decision made which is to be consistent with the requirements of the post and in this regard Courts are slow to interfere with any stated stipulation with regard to age. However in view of the peculiar facts and circumstances surrounding this case this Court is of the view that the case of the petitioner deserves some consideration for the reasons hereinafter given. First the fact that the writ petitioner has been in service for more than a decade is undisputed and secondly so also the fact that by virtue of being over aged on the last occasion she could not submit her candidature for regular selection. Coupled with this is the added fact that since the last selection the age has been relaxed by 10(ten) years as is evidenced by the amendment dated 02.05.2018. It would therefore not be out of place to observe that had the Notification relaxing the age by 10(ten) years been in operation in 2016 the writ petitioner could have taken part in the selection process of that year itself. Now coming to the fresh advertisement that has just been issued prescribing an age limit of 37 years it is seen that the writ petitioner has also once again been rendered ineligible to apply as she has since attained 40 years of age. The petitioner therefore through no fault of her own but by force of circumstances has thus been prevented from taking part in any selection process. In the backdrop of these facts and the situation of the writ petitioner it thus would be just and proper as an exceptional case for a mandamus to be issued directing the respondents to permit her to take part in the selection process that has been announced vide advertisement dated 06.10.2021. Accordingly the concerned respondents are directed in the event an application is made by the petitioner for the fresh selection process as per the advertisement the same shall be accepted and she be allowed to take part in the selection process. It is however made clear and understood that this being an exceptional case it shall not serve as a precedent in the case of any other candidate seeking age With the foregoing directions this writ petition is allowed to the extent as indicated above and is accordingly disposed of. The records and other documents as produced by the learned GA including the covering letter of the advertisement itself are made part of the The instant writ petition being WP(C) No. 3616 was tagged together along with WP(C) No. 3516 and WP(C) No. 362 of 2016 for hearing. However in view of the order passed today the other writ petitions i.e. WP(C) No. 3516 and WP(C) No. 362 shall stand de linked to be taken up separately. Registry to take steps and to note accordingly. JUDGE “V. Lyndem PS” 

Summary: Prescription of age limit and relaxation is made in furtherance of the policy of the State, and the same constitutes a policy decision made, which is to be consistent with the requirements of the post, Courts are slow to interfere with any stated stipulation with regard to age as held by the High Court of Meghalaya by the learned bench lead by Justice H. S. Thangkhiew in the case of Smti Hanna Ch. Marak Vs. State of Meghalaya (WP(C) No. 361 of 2016) The brief facts of the case are that the instant writ application was filed by the writ petitioner seeking relaxation and condonation of her age for appearing in any future selection process to the post of Auxiliary Nurse Midwife (ANM), and in addition has also prayed for regularization and also that she not be ousted from service during the pendency of the writ petition. Ms. D. Mawthoh, learned counsel for the petitioner submitted that the petitioner was initially appointed on 16.03.2010 as an Auxiliary Nurse Midwife (ANM) on a contract basis for a period of 11 months and continued in the said post after extensions were given from time to time till date. On 19.07.2016, an advertisement had been issued for recruitment to a large number of Auxiliary Nurse Midwife (ANM) posts, with the qualifications prescribed therein of S.S.L.C. passed, with 18 months Training Course of Nursing and an age limit 18 to 27 years relaxable by 5 years for Scheduled caste and Tribe candidates. Learned counsel further submits that at that point of time, the petitioner had applied for the said post but her application was not accepted, on the ground that she was over-aged and that though a representation was made before the State respondents, the same was rejected. Being faced with this situation, learned counsel submits, the writ petitioner is before this Court by way of the instant writ petition seeking relaxation of age for any fresh selection. Mr. K.P. Bhattacharjee, learned GA for the State respondents submitted that by the Notification dated 02.05.2018, an amendment was made to the Meghalaya Nursing Service Rules, especially Rule 9 which provides that, in the case of candidates belonging to Scheduled Tribes and Scheduled Castes, the upper age limit shall now be relaxable by 10 years. As per the records of the earlier selection process, it appears that the writ petitioner has not appeared in any selection process till date but is continuing to serve as an ANM. He submitted that the present writ petitioner therefore would not be qualified to apply for any future selection in view of the prescribed age limit. After hearing the learned counsel for the respective parties at length, the Hon’ble Court held, “The concerned respondents are directed in the event an application is made by the petitioner for the fresh selection process as per the advertisement, the same shall be accepted and she be allowed to take part in the selection process. It is however, made clear and understood that this being an exceptional case, it shall not serve as a precedent in the case of any other candidate seeking age relaxation. With the foregoing directions, this writ petition is allowed to the extent as indicated above and is accordingly disposed of.”