The State Government had the power to relax the upper age limit for the absorption of casual workers, and the petitioner met the eligibility criteria for age relaxation.

W.P. No. 18073 (W) of 2016

1. The point involved, after it is finally decided by this court or any superior court will have a very wide and far reaching effect. The basic issues involved in this case are identical to those involved in the other cases. The decision in this case will necessarily govern the other cases also.

2. In the year 1988 the petitioner qualified in the Madhyamik examination conducted by the West Bengal Board of Secondary Education.

3. In 1997 he was appointed as a casual employee, in the vacant post of the Sanitary Assistant in Bolpur Municipality. The Chairman of the Municipality certified this appointment by his letter dated 3rd December, 2015. The petitioner has been discharging the function of a clerk.

4. Sometime in 2016 the Director of the local bodies, West Bengal and ex-officio Additional Secretary Municipal Affairs Department Government of West Bengal granted permission to the Municipality to fill up inter alia the sanctioned sole vacant post of Sanitary Assistant. On 13th July, 2016 the respondent-municipality inserted an advertisement in the Dainik Statesman for recruitment in the different posts under the said Municipality. The last date of submission of application form was 4th August, 2016 which was later extended till 6th September, 2016.

5. The writ petitioner was about 44 years of age when this writ was moved on 31st August, 2016. This court observed that a question of law was involved and that the facts were more or less admitted. The writ could be heard out without affidavits, as all the papers were before the court. An interim order was passed directing that the petitioner be permitted to participate in the selection process without prejudice to the rights and contentions of the parties. One post should not be filled up. It would abide by the result of the writ. A panel of candidates would be prepared including the writ petitioner if he qualified in the selection process to fill up the vacant post according to the decision in the writ. That interim order is still continuing.

6. The question of law before the court is this. The writ petitioner and other similarly situated persons are working as casual employees, on contract basis, in the posts to be filled up by the above selection process. The writ petitioner says that he has rendered long service as a clerk/ sanitary assistant and that he be allowed to participate in the selection process.

7. It is said on behalf of the respondents that as per the rules of the Government the maximum age of a candidate participating in a selection process cannot be over 40 years. The respondents express their helplessness. They say that this age limit of 40 years is fixed by the rules. They cannot waive the requirement of the rules or extent the age limit.

8. Now, it is important to take a look at these rules. Under the West Bengal Municipal Employees (Recruitment) Rules, 2005 it was stated that in all cases of direct recruitment excepting in the posts of the Secretary, Tax Collecting Sarkar and Teacher the upper age limit shall be 37 years ( rule 2 (1) proviso). Sub rule (2) stated that the provisions of the West Bengal Service (Raising of Age limit) Rules, 1981 shall apply. It was also provided that the upper age limit may be relaxed by the State Government in the case of absorption of casual workers.

9. By an administrative order dated 23rd April, 2010 all casual workers with the government working for more than 10 years were allowed to be retained upto the age of 60 years. On 16th September, 2011 some clarifications were made to the above memorandum. Some additions were also made, the most important of which for the purposes of this case was the provision that the benefit of this memorandum would be applicable mutatis mutandis to panchayat bodies, ULB and statutory bodies.

10. It was said that since this provision had been made by the government there was no further scope of the writ petitioner being “absorbed” into the municipality as a permanent e