Point of Law: There is a requirement of enhancing the upper age limit and it would be the absolute discretion of the authorities to pass their own order

JUDGMENT :

ACHINTYA MALLA BUJOR BARUA, J.

1. Heard Mr. A. Deka, learned counsel for the petitioner, Mr. Smt. Chisti, learned counsel for the respondents No. 1 and 3 being the authorities under the Secondary Education Department of the Government of Assam and Ms. D.D. Barman, learned counsel for the respondent No. 2 being the Personnel (B) Department, Government of Assam.

2. The petitioner, who otherwise claims to be qualified in all other aspect for being appointed to the post of Post Graduate Teacher in Economics in any Higher Secondary School and who is also belongs to the Economically Weaker Section (EWS) Category has raised a grievance that the upper age limit in respect of the advertisement dated 08.09.2021 of the Director of Secondary Education, Assam prescribes for an upper age limit of 38 years in respect of the General Category candidates. The petitioner by virtue of belonging to the EWS category would also have to be construed in law to be a candidate belonging to the General category and therefore, the upper age limit of 38 years would be applicable for the petitioner.

3. The petitioner refers to an Office Memorandum No. ABP/6/2016/51 dated 02.09.2020 of the Principal Secretary to the Government of Assam in the Personnel (B) Department, which provides that the upper age limit for entering into State Government Service for the Grade-III and Grade-IV posts had been raised up to 40 years. The post of Subject Teacher in Economics for which the petitioner is pursuing is admittedly not a Grade-III and Grade-IV posts, but it is categorized to be a Grade-II post. The petitioner raises a plea that there is a discrimination against the aspirants for the Grade-II posts by not suitably increasing the upper age limit to 40 years as had been done in case of Grade-III and Grade-IV posts.

4. In order to appreciate the said contention, we put a query to the petitioner as to whether there is any reasonable classification with an intelligible differentia with the object at hand between the service requirement of a Grade- II post and that of a Grade-III and Grade-IV posts. No specific reply is forthcoming that there is no intelligible differentia between Grade-II posts and the Grade-III and Grade-IV posts so as to claim parity under Article 14 of the Constitution of India, so that the upper age limit fixed by the authorities in respect of Grade-III and Grade-IV posts should also be applicable to a Grade-II post.

5. In the absence of any material to show that there is no intelligible differentia between the service requirement of a Grade-II post and that of a Grade-III and Grade-IV post, we are unable to accept the contention of the petitioner that there is no reasonable classification between the Grade-II post and that of a Grade-III and Grade-IV post. In the absence of any reasonable classification, it cannot be accepted that there is any discrimination by providing for an upper age limit of 40 years in respect of Grade-III and Grade-IV posts and in not doing so for the Grade-II posts. Fixing the upper age limit is the prerogative of the State authorities, who are the employer and the State authorities are in the best position to judge the requirements for their employees so as to determine what should be the upper age limit.

6. In the instant case, the petitioner makes a prayer that in order to decide the aforesaid issue, there may be an interim order staying the aforesaid process of the advertisement itself or in the alternative to allow the petitioner to participate in the process although he may be otherwise be over aged and to make the result of such participation subject to the outcome of the writ petition.

7. Mr. A. Deka, learned counsel for the petitioner urges upon the second nature of the interim order he has prayed for. Although the prayer would be innocuous and for the time being it may not have any adverse effect on the balance of convenience, but the difficulty would be that once the process of selection is completed by the auth