WRIT PETITION 5374/2015 on 17 July 1998

Heard Mr S P Choudhury, learned Government Advocate, Assam for the review petitioner. Mr B C Das, learned counsel has appeared on behalf of opposite party No. 1/writ petitioner as Legal Aid Counsel. 2.This petition seeks review of order dated 13.10.2015, passed in WP(C) No. 5374 of 2015. Relevant portion of the order dated 13.10.2015, reads as under:- Heard the petitioner in person as well as Mr N Upadhyay, learned Government Advocate for the respondents. 2.By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to consider his appointment in any Grade - III or Grade - IV post in the establishment of Chief Inspector of Factories, Assam. 3.On 09.09.2015, this Court had passed the following order :- Petitioner had filed WP(C) No. 681 of 2015 before this Court seeking a direction to the respondents to appoint him in any vacant Grade-III or Grade -IV post inthe office of the Chief Inspector of Factories, Assam. In fact, petitioner has been approaching this Court since the year 1996. The said writ petition was disposed of by order dated 01.04.2015. Relevant portion of the order dated 01.04.2015, reads as under:

Petitioner claims that he has the eligibility for appointment in Grade-III or Grade-IV post. Petitioner had approached this Court earlier with similar grievance in Civil Rule No.3320/1996 and in WP(C) No.1887/2009. The first writ petition was disposed of on 17.07.1998 by directing the respondents to consider the representation stated to have been filed by the petitioner. By order dated 22.05.2009, the second writ petition was dismissed with the observation that it would be open to the petitioner to apply for any vacancy commensurate to his qualificationin the event recruitment process is initiated. Subsequently, petitioner filed another writ petition i.e. WP(C) No.5327/2012, which was also dismissed by this Court on 15.11.2012 with the observation that it would be open to the petitioner to apply for any post commensurate to his qualification in the event any processof recruitment is initiated. Contending that no such process for recruitment has been initiated, petitioner has filed the present writ petition. On 09.02.2015, this Court requested learned Govt. Advocate to obtain instructionfrom the office of the Chief Inspector of Factories, Assam regarding availability of vacancies in Grade-IV and Grade-III in his establishment and the steps taken to fill up such vacancies.

Today Mr. BJ Ghosh, learned Govt., Assam has informed the Court on the basis of written instruction that there are three vacancies in Grade-III and equal numberof vacancies in Grade-IV. For two vacancies in Grade-III i.e., LD Assistant andCraftsman, advertisements were issued in local newspaper in the month of December, 2014, besides requesting the Directorate of Employment & Craftsman Training to sponsor candidates. Process of recruitment is presently underway. Regarding Grade-IV vacancies, it is stated that Directorate of Employment & Craftsman Training has been informed about the vacancies in Grade-IV, which will be filled up from amongst the remaining selected candidates of the year 2009 as per instruction of the State Govt. in compliance to earlier decision of the High Court.In view of above, Court is of the view that petitioner may approach the Chief Inspector of Factories, Assam in his office during office hours within 10 days from today and on his appearance, the Chief Inspector of Factories may permit the petitioner to submit an application against the two vacancies in Grade-III which have been advertised subject to fulfillment of the eligibility requirement and if the petitioner fulfills the eligibility criteria, to consider his candidature as per merit along with other candidates who have responded to the advertisement. —

It appears that petitioner, thereafter, submitted application against the 2 (two

) vacancies, in the post of Lower Division Assistant (LDA) in the establishment of Chief Inspector of Factories, Assam, which were advertised in the month of December 2014. Chief Inspector of Factories, Assam, vide his letter dated 06.05.2015 has sought for advice from the Government of Assam in the Labour and Employment Department regarding consideration of the candidature of the petitioner as the following deficiencies — were noticed: 1)His age as on 01.01.2015 is 43 years 10 months, which is beyond the upper age limit for consideration of his candidature. 2)He does not possess the requisite 3 (three) months’ diploma in computer,which is required as per the advertisement.

3) He did not submit copy of employment exchange registration card as per the terms and conditions of the advertisement. 4)He did not submit self addressed stamped envelope as per the terms and conditions of the advertisement.On a query by the Court as to the recruitment rules followed in the establishment of Chief Inspector of Factories, Assam and as to whether 3 (three) months’ diploma in computer as per reason No. 2 above is an essential eligibility criterionfor recruitment of Lower Division Assistant (LDA), learned State Counsel has sought for time to obtain instructions. In so far the first reason is concerned, Court is of the view that it is the appointing authority, who may himself take an appropriate decision regarding relaxation of the overage of the petitioner considering the fact that petitioner has been approaching this Court since the year 1996. Reason Nos. 3 and 4 do not appear to be serious enough to debar the petitioner from consideration. In view of the above, learned State Counsel shall inform the Court on the next date, regarding eligibility criteria for the post of Lower Division Assistant in the establishment of Chief Inspector of Factories, Assam, in view of reason No. 2 mentioned in the letter dated 06.05.2015.

List on 28.09.2015. — 4.Then again on 28.09.2015, the following order was passed:- Mr. N. Upadhyay, learned Govt. Advocate is granted 10 (ten) days time to obtaininstruction in terms of order dated 09.09.2015 as to whether 3 (three) months diploma in computer is an essential eligibility criteria for recruitment to the post of Lower Division Assistant in the establishment of Chief Inspector of Factories, Assam. 5.Today, when the matter is called upon, learned Government Advocate has produced before the Court the written instructions dated 08.10.2015 furnished to him by the Chief Inspector of Factories, Assam. It is stated that 3 (three) month’s diploma in computer is not an essential qualification but is a desirable qualification for appointment as Lower Division Assistant (LDA). It is further stated that application of the petitioner was not considered not only for not possessing the 3 (three) months’ diploma in computer, but also for the following reasons:-

1) Over aged as on 01.01.2015. 2)Non-submission of Employment Exchange Registration Card as per terms andconditions of the advertisement.

3) Non-submission of self addressed stamped envelope as per terms and conditions of the advertisement. 4) Non-submission of photograph etc. 6.This Court has already held in the order dated 09.09.2015 that in so farthe condition of overage is concerned, it is the appointing authority himself, who is competent to condone the overage of the petitioner having regard to the facts of the case as noticed in the order dated 09.09.2015. Regarding non-submission of self addressed stamped envelope, photograph etc., it has been held that those are not serious grounds to debar the petitioner from consideration. In so far non-submission of Employment Exchange Registration Card is concerned, the Apex Court in the case of Union of India -Vs- Pritilata Nanda; reported in (2010) 11 SCC 674, has clearly held that it is not obligatory on the part of the appointing authority to recruit only those candidates who are sponsored by the Employment Exchanges.

7. That being the position, decision of the Chief Inspector of Factories, Assam, in not considering the case of the petitioner does not appear to be justified. Accordingly, Chief Inspector of Factories, Assam, is directed to allow the petitioner to participate in the recruitment process for the post of LDA in his establishment, advertised in the month of December, 2014, by condoning his overage. Regarding other requirements, such as self addressed stamped envelope, photograph etc., petitioner shall submit the same within a period of 15 (fifteen) days from today, whereafter, his case shall be considered on merit along with the other candidates who have responded to the advertisement. Chief Inspector of Factories, Assam, shall do the needful in terms of this order and consider the case of the petitioner on his own merit.

8. This disposes of the writ petition. 3.Review has been sought for on the ground that recruitment process initiated was already completed on 24.06.2015, when the above order dated 13.10.2015 was passed. 4.On going through the order dated 13.10.2015, it is seen that opposite party No. 1 was before the Court by filing WP(C) 681 of 2015, which was disposed of vide order dated 01.04.2015. When the related writ petition came to be filed learned Government Advocate had entered appearance on several dates after 24.06.2015, when the selection process is stated to have concluded, but did not inform the Court that the selection process was over. Only after the order was passed on 13.10.2015, the review petition has been filed. 5.That being the position, Court is not inclined to entertain the review petition. Accordingly, the review petition stands dismissed. 6.Let the record of this case be delinked from Contempt Case (Civil) No. 69 of 2016.