Gauhati High Court
Page No.# 1/6 vs The State Of Assam And Anr on 16 December, 2022
Page No.# 1/6
GAHC010084952019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2923/2019
ANAMUL HAQUE MAZUMDER AND 2 ORS.
S/O- LT SAFAR ALI MAZUMDER, VILL- RANGAUTI, P.O. RANGAUTI II, P.S.
HAILAKANDI, DIST- HAILAKANDI, PIN- 788155
2: MUTAHIR ALI LASKAR
S/O- LT SORAHAR ALI LASKAR
VILL- MATIRGRAM
P.O. MATIRGRAM
P.S. ALGAPUR
DIST- HAILAKANDI
PIN- 788150
3: ABDUL NOOR LASKAR
S/O- LT MAKBUL ALI
VILL- BHATIRKUPA PART-III
P.O. BHATIRKUPA
P.S. HAILAKANDI
DIST- HAILAKANDI
PIN- 78815
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, ANIMAL
HUSBANDRY AND VETERINARY DEPTT., DISPUR, GHY-6
2:THE DIRECTOR
ANIMAL HUSBANDRY AND VETERINARY DEPTT.
ASSAM
CHENIKUTHI
GHY-
Advocate for the Petitioner : MR. S S S RAHMAN
Page No.# 2/6
Advocate for the Respondent : GA, ASSAM
Linked Case : WP(C)/2953/2019
SAMSUL ALAM BARLASKAR AND 2 ORS.
S/O. LT. SAFIQUR RAHMAN BARLASKAR
P.O. VIVEKANANDA ROAD
P.S. SADAR SILCHAR
DIST. CACHAR
ASSAM-788007.
2: SALIM UDDIN LASKAR
S/O. LT. ABDUL SALAM LASKAR
VILL. GOSSAIPUR PART-III
P.O. GOSSAIPUR PART-II
P.S. UDHARBOND
DIST. CACHAR
ASSAM-788030.
3: MISBA UDDIN BARBHUIYA
S/O. LT. HAJI LALU MIYA BARBHUIYA
VILL. PELADADHAR
P.O. NIZ-JOYNAGAR
DIST. CACHAR
ASSAM-788025.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
ANIMAL HUSBANDRY AND VETERINARY DEPTT.
DISPUR
GUWAHATI-781006.
2:THE DIRECTOR
ANIMAL HUSBANDRY AND VETERINARY DEPTT.
ASSAM
CHENIKUTHI
GUWAHATI-781003.
------------
Advocate for : MR. S S S RAHMAN
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND ANR.
Page No.# 3/6
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
16.12.2022
Heard Ms. S. Z. Hayat, the learned counsel for the petitioners and Ms.
M. M. Kotoky, the learned Standing Counsel appearing on behalf of the
Animal Husbandry & Veterinary Department.
Both the writ petitions herein have been filed seeking a direction
upon the respondent authorities to consider the age relaxation of the
petitioners and appoint them for the posts of Veterinary Field Assistant in
pursuance of the advertisement dated 22.07.2017 in compliance to this
Court's order dated 26.07.2018 passed in WP(C) No.1283/2018.
The petitioners in WP(C) No.2923/2019 as on the date of filing of the
writ petition were 56 years, 54 years and 54 years respectively. The
petitioners in WP(C) No.2953/2019 as on the date of filing of the writ
petition were 55 years, 56 years and 56 years respectively. Admittedly, the
age of retirement in the post of Veterinary Filed Assistant is 60 years and
the said petitioners as on the date of consideration of the writ petition by
this Court is nearing the age of superannuation.
It appears from the records that this Court vide an order dated
26.07.2018 in various writ petitions including in WP(C) No.1283/2018
directed the respondent No.2, i.e. the Director, Animal Husbandry &
Veterinary Department to place the case of the petitioners therein for
relaxation of age before the Government in terms with Rule 27 of the
Assam Animal Husbandry & Veterinary Subordinate Service Rules, 2002
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within a period of one week from the date of receipt of the certified copy of
the said order by the Director of Animal Husbandry & Veterinary
Department. It was further directed that the competent authority shall
consider the age relaxation of the petitioners therein in terms with the Rule
27 of the said Rules of 2002 within a period of two weeks and thereafter
the respondents shall ensure that the petitioners are invited to viva-voce
test for making selection to the post of Veterinary Field Assistant and
publish the select list in order of merit.
At this stage, this Court finds it relevant to take into consideration
Rule 27 of the Rules of 2002. The said Rule is quoted herein below:-
"27. Relaxation.-Where the Government is satisfied that the
operation of any these rules undue hardship in any particular
case, it may, dispense with or relax the requirement of that rule to
such extent and subject to such conditions as it may consider
necessary for dealing with the case in a just and equitable
manner:
Provided that the case of any person shall not be dealt with
in any manner less favourable to him than that provided in these
rules."
From a perusal of the said Rules it transpires that where the
Government is satisfied that the operation of any of the Rules causes undue
hardship in any particular manner, the Government may dispense with or
relax the requirement of that Rule to such extent and subject to such
conditions as it may consider necessary for dealing with the case in a just
and equitable manner. A proviso has been added to the said Rules to the
effect that the case of any person shall not be dealt with in any manner less
favourable to him than provided in the Rules.
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It, therefore, transpires that the power to relax the operation of the
Rules is within the domain of the Government upon its satisfaction that the
operation of any of the Rules causes undue hardship in any particular case.
This Court, in exercise of power under Article 226 of the Constitution
of India cannot exercise the said power although it would be within its
realm of jurisdiction, the Government while exercising the said power does
so in a manner inconsistent with the said Rules or where such relaxation is
being made which is apparently unreasonable, irrational and having no
nexus with the objects sought to he achieved.
The Supreme Court in the case of Suraj Prakash Gupta and Others vs.
State of J & K and Others, reported in (2000) 7 SCC 561 held that the power
to relax the Rules does not include the power to relax the Recruitment
Rules. It was also held that the said power to relax can be exercised on the
ground of hardship in individual cases for reasons to be recorded. In
paragraph No.32 of the said judgment, the Supreme Court further observed
that the Recruitment Rules for promotion cannot itself be treated as one
causing hardship.
Ms. M. M. Kotoky, the learned Standing Counsel for the respondents
submits that pursuant to the order passed by this Court in various other
writ petitions, the respondent authorities have considered the case of all
the persons including the petitioners and had taken a decision not to relax
the age of those persons who have attained 54 years or above taking into
account that the age of superannuation to be 60 years. Therefore, taking
into consideration the specific stand taken by the respondents and it is the
respondents who are the administrative authorities who have the
knowledge as to how the Department is to best run, this Court, in exercise
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of the power under Article 226 of the Constitution, cannot sit over the said
decision as a Court of Appeal.
Under such circumstances, for the reasons that the petitioners' cases
were considered as was directed by the order dated 26.07.2018 passed in
WP(C) No.1283/201, and thereupon a decision having been taken not to
relax the age of persons who have attained the age of 54 or above their
age and further taking into consideration that the petitioners in both the
writ petitions are nearing the age of superannuation, this Court cannot
issue the writ as sought for by way of both the writ petitions.
Accordingly, both the writ petitions stand dismissed on the basis of
the observations made herein above.
JUDGE
Comparing Assistant
