S. N. BHATTACHARJEE, J.

( 1 ) RESPONDENTS herein, all being contract labourers in the department of Blast Furnace Relining (for short BFL) under the appellant No. 2 filed a writ application marked as Matter No. 3770 of 1994 alleging that although the State Government by its notification dated 22nd February, 1982 prohibited the employment of contract labour in any process or operation in the jobs specified therein including BFL employed by M/s Durgapur Steel Plant (DSP) with effect from 1. 3. 82 by issuing notification under section 10 (1) of the Contract Labour (Regulation and Abolition) Act, 1970 they have not been absorbed as workmen under the appellant and have been still working as contract labours in the same department. It is further alleged that petitioners were asked to appear before the Selection Committee on different dates for the post of unskilled workers and were required to submit application forms duly filed in with necessary documents on or before 19. 3. 1985 and since then a series of meetings at bipartite and tripartite levels with regard to the departmentalisation of jobs as well as absorption of contractor workmen were held and ultimately a memorandum of settlement dated 28. 6. 94 was signed pursuant to a tripartite meeting held before the Labour Commissioner between the Steel Authority India Limited (for short SAIL) and Durgapur Steel Plant (for short DSP) and their workmen represented by diverse Contractors Workers' Unions whereby it was stipulated in sub-Clause (1) (2) and (3) of Clause 5 that those who were found medically unfit and aged above 45 years as per medical examination report would have no claim for absorption in Durgapur Steel Plant and only those were medically fit and up to 45 years of age as per medical examination report would be considered for absorption.

( 2 ) APPEARING to the writ petitioners-respondents, they have been working under the contractors since long even after the notification and they have been successful in the interview and the medical test and now the decision to exclude the incumbents from departmentalisation on the ground of being overaged is arbitrary, and violative of Article 16 of the Constitution of India.

( 3 ) THE petition was resisted by filing affidavit-in-opposition by appellant No. 2 contending that the job of blast furnace relining was undertaken from time to time and was completed by engaging contractors, the question of regularisation of the services of the petitioners did not arise and that SAIL or DSP is under no obligation to absorb the contract labour only because the job has been declared perennial by a notification of the Government of West Bengal. The tripartite settlement dated 28. 6. 94 which is for the benefit of the majority of the contract labourers is binding upon the petitioners and is not open to challenge in the writ jurisdiction of this Court.

( 4 ) THE learned trial Judge held,"therefore, in my view, the said condition as to the cut off age below 45 years for absorption was designed to avoid the statutory liability of the employer envisaged under section 10 of the Act, 1970. To that extent i. e. , the condition as to the prescription of age as below 45 years for purpose of absorption must be held to be void in view of section 23 of the Indian Contract Act because its object is to defeat the provision of section 10 of the Act, 1970. It is accordingly so held, on the ratio of the Air India's case (supra)".

( 5 ) ON such a finding the learned trial Judge allowed the writ petition and issued direction to absorb the petitioner in the lowest grade (L-1) on regular basis with effect from the date of abolition and to make payment in the prescribed scale from the date on which the writ application was filed.

( 6 ) THE present appeal has been preferred against this order passed by the learned Trial Judge on 18. 6. 99.

( 7 ) IMPUGNING the aforesaid order, the learned counsel appearing for the appellant has submitted that the learned Trial Jud

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