In cases of irregular appointments, where the appointees possess the prescribed qualifications but were not selected through an open competitive selection process, the courts can direct the relaxation of the age bar to allow such employees to participate in the selection process.

K. J. Sengupta, J.

1. The above batches of the writ petitions have been dealt with by the learned Single Judge but the same could not be disposed of by His Lordship because of important questions of law that were posed before His Lordship. His Lordship having found conflicting judicial decisions of the Division Bench and as that of learned Single Bench of this Court and further Hon’ble Supreme Court by order dated 2nd March, 2011 placed the matters before the Hon’ble Chief Justice for assignment before appropriate Bench. The point was not formulated in so many words while referring the matter but on reading of the entire judgment and conclusion arrived at it is clear following question of law was staring His Lordship:

Whether a temporary/casual employee can be allowed to participate in the selection process after condoning his age bar as prescribed in deviation of the recruitment rules?”

2. Therefore, individual fact in great detail in the writ petitions is not relevant for this purpose. Suffice it to say that the writ petitioners therein wanted to have relief for participation in the selection process ignoring age bar prescribed in recruitment rules. The learned referring Bench has discussed and relied on number of Supreme Court decisions rendered earlier including that of in case of The Secretary, State of Karnataka and others vs. Uma Devi and others [(2006) 4 SCC 1].

3. The factual position of these matters were identical as petitioners were casual and/or temporary employee engaged by the respondents. In all the writ petitions they made substantive prayer for regularization, in the vacant posts in which they were appointed or alternatively to allow them to participate in the selection process for regular appointment to the said post they were holding.

Learned referring Bench, however, held in the negative.

4. Learned counsels for the petitioner submit that the learned Single Judge has not followed the consistent views of the Division Bench of this Court as well as the Supreme Court on the above point. Those judgments are binding upon His Lordship. At any rate and alternative relief as prayed for should have been granted deciding the point in favour of the petitioner.

5. They contend that recent judgment of the Division Bench reported in (2011) 1 WBLR Calcutta page 644 has been pleased to hold that the temporary and/or ad hoc appointee who has been serving for a long period in an institution in the same post can at least be granted relief allowing him to participate in the selection process condoning age bar. They have referred to the decision of the Apex Court reported in (2010) 4 SCC page 179 on the same principle where daily wages of the temporary employees worked under the employer are allowed to compete in the selection process for recruitment relaxing maximum age limit. The Division Bench of this Court in a case reported in 1997 (1) CLJ page 501 also held that the authority concerned cannot refuse ad hoc appointee from being considered for appointment solely on the ground of crossing maximum age limit under the Rules. Similar view was taken by Division Bench in case of Hon’ble Chief Justice of High Court, Calcutta and ors. v. Anil Kumar Roy & ors. wherein the Bench had taken note of the Supreme Court’s decision (1998) 9 SCC page 78 rendered in case of Keshav Narayan Gupta & ors. vs. Zila Parishad, Shivpuri (MP) & another. Moreover, the decision relied on by the learned referring Court in the case of State of Karnataka v. Uma Devi though viewed differently while deciding the point of law, ultimately granted relief allowing the ad hoc or temporary appointee to participate in the selection process. The learned referring Judge had taken note of judgment of another learned Single Judge of this Court in Writ Petition No.30843 (W) of 2008.

6. Reference has been made by the learned counsel for the petitioners to the decision reported in (1995) 2 SCC page 1 to urge that at the time of regular selection process ad hoc or