Point of Law : Respondent authority has failed to exercise its power while dealing with the application for relaxation of the age, preferred by the petitioners.

JUDGMENT :

Heard Mr. S Borthakur, learned counsel for the petitioners. Also heard Mr. D Nath, learned Senior Government Advocate, Mr. DP Borah, learned standing counsel for the Health and Family Welfare Department, Mr. BD Konwar, learned Senior counsel assisted by Ms. H Baishya, learned counsel for the respondent Nos. 8,9,12 to 20 and Mr. N Kalita, learned counsel representing respondent Nos. 10 and 11. Both these two writ petitions are taken together for final disposal as the both are interlinked.

1. Pursuant to an advertisement dated 09.10.2013, the petitioner Nos. 1, 2 and 3 were selected and appointed as Lecturers of different Nursing Colleges of the State under Regulation 3(f) of Assam Public Service Commission (Limitation of Function) Regulation 1951. The petitioner No.1 was appointed as Lecturer of Psychiatric Nursing at B.Sc. Nursing College Dibrugarh, the petitioner No. 2 was appointed as Lecturer of Medical Surgical Nursing at Regional College of Nursing, Guwahati, petitioner No. 3 was appointed as Lecturer of Community Health Nursing at B.Sc. Nursing college Dibrugarh and the petitioner No. 4 was appointed as Lecturer of Community Health Nursing at B.Sc. Nursing College, Dibrugarh.

2. The APSC issued another advertisement on 05.07.2015 for filling up of 23 numbers of regular vacant posts of Lecturers in different Nursing Colleges of the State. The petitioners participated but the results were not declared as the same was cancelled.

3. Thereafter, fresh interview was held. Petitioners did not get selected. The petitioners along with another approached this Hon’ble Court by filing WP(C) 1938/2017 challenging the selection list and this court passed an interim order directing the authority to accommodate the petitioners on the vacant posts which were not falling under purview of advertisement dated 05.07.2015. Pursuant to the same the petitioners services were extended from time to time and till date they are continuing in service.

4. Therefore, advertisement No. MHRB/19/Nursing/2019/270 was published inviting online application from eligible candidates for filling up of 28 numbers posts of Lecturers. Clause 5 of the said advertisement stipulates the age of the candidates as not less than 21 years and not more than 38 years as on 01.01.2019. The upper age limit was relaxable by 5 years to S.C./S.T. candidates and 10 years for persons with disabilities. The petitioners applied for the posts although they were over aged.

5. The Director of Medical Education Assam forwarded the application of the petitioner No. 1 for condonation of over age of 2 years 10 months, the application of the petitioner No. 2 for condonation of over age of 2 years, the application of the petitioner No. 3 for condonation of over age of 1 year 10 months and also the application of the petitioner No. 4 to the Govt. of Assam, Health & Family Welfare Department.

6. The Secretary I/C, Medical & Health Recruitment Board published a list of rejected candidates in which the name of the present petitioners appeared. The ground of rejection is shown as over age. On the same date list of provisionally shortlisted candidates were also published. The petitioners preferred WP(C) 8555/ 2019 challenging the said action and this Court while issuing notice of motion directed the respondent Nos. 5 and 6 to allow the petitioners to participate in interview and accordingly the petitioners participated in the interview.

7. In the meantime, a communication dated 20.12.2019 was issued by the Deputy Secretary to the Govt. of Assam, Health and Family Welfare Department intimating the Director of Medical Education, Assam that there is no provision for relaxation of upper age limit for entry into Government Service. The petitioners preferred WP(C) 573/2020 challenging the communication dated 20.12.2019 and as an interim measure, directed four (4) posts of Lecturers to be kept vacant.

8. The stand of respondent in Health and Family Welfare Department is that they sought for an advice