Shasanka Sekhar Borkotoky and Anr. Vs the State of Assam and 3 Ors.

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GAHC010086252025

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2025:GAU-AS:5371

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2239/2025

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SHASANKA SEKHAR BORKOTOKY AND ANR S/O LT KRISHNA PRASAD BORKOTOKY, R/O RANGAPARA ROAD, BORGURI, NEAR KALI MANDIR, P.S.- TINSUKIA, P.O.- TINSUKIA, PIN786125, ASSAM

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2: PIYUSH SINGH S/O LATE BABAN SINGH R/O CLASSIC COMMUNICATIONS A.T. ROAD DHEKIAJURI P.S.- TINSUKIA P.O.- TINSUKIA PIN-786125 ASSAM

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM, HIGHER EDUCATION (TECHNICAL) DEPARTMENT, HAVING ITS OFFICE AT ASSAM SECRETARIAT, DISPUR, GUWAHATI, DIST- KAMRUP (M), ASSAM, PIN-781006

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2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM HIGHER EDUCATION (TECHNICAL) DEPARTMENT HAVING ITS OFFICE AT ASSAM SECRETARIAT DISPUR GUWAHATI DIST- KAMRUP (M) ASSAM PIN-781006

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3:THE DIRECTOR OF TECHNICAL EDUCATION

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ASSAM HAVING HIS OFFICE AT KAHILIPARA MAIN ROAD KAHILIPARA GUWAHATI DIST- KAMRUP (M) ASSAM PIN-781006 4:THE ASSAM ENGINEERING SERVICE RECRUITMENT BOARD REPRESENTED BY ITS CHAIRMAN HAVING HIS OFFICE AT TEXTILE INSTITUTE CAMPUS AMBARI GUWAHATI DIST- KAMRUP (M) ASSAM PIN-78100

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Advocate for the Petitioner : MR M HANDIQUE, K K DAS,T ALAM,MS P BORA Advocate for the Respondent : SC, HIGHER EDU,

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BEFORE

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HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR

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ORDER

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Date : 02.05.2025

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Heard Mr. M. Handique, learned counsel for the petitioners. Also heard Mr. A. R. Tahbildar, learned Standing Counsel, Higher Education Department, for the respondent Nos. 1, 2 & 3.

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2. The Member Secretary, Assam Engineering Service Recruitment Board issued an Advertisement No. AESRB-02/2025 by a Notice inviting online applications from permanent residence of Assam having requisite qualification for recruitment to the vacant post of Assistant Professor (Technical) in the State Engineering Colleges under the Higher Education (Technical) Department, Government of Assam. In the said Notice the last date of submission of online application along with requisite fees is stipulated as 22.04.2025.

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3. The learned counsel for the petitioners submits that the petitioner No. 1 was engaged as a part time Assistant Professor at Assam Engineering College against the permanent vacant post in Chemical Engineering Department for a period of 4 (four) months by a Communcation dated 25.02.2021 issued by the Director of Technical Education. The service of the petitioner No. 1 was thereafter extended from time to time. The petitioner No. 2 was also engaged on temporarily basis as Assistant Professor, Mechanical Engineering for TEQIP(III) Project by an Engagement offer dated 04.01.2018 issued by the Principal, Assam Engineering College, Jalukbari. In the said Engagement offer, it is provided that the petitioner No. 2 shall serve the college on temporarily basis for TEQIP-(III), World Bank assisted project being implemented by the college from 01.04.2017 to 31.03.2020, it is further provided that the engagement shall stand terminated by efflux on time on stipulated date and/or shall be coterminus to the project whichever occurs first. The learned counsel for the petitioners submits that the engagement of the petitioner No. 2 was also extended from time to time.

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4. Thereafter, by a Notification dated 22.01.2025, issued by the Secretary to the Government of Assam, Higher Education the petitioner Nos. 1 & 2 along with 68 (sixty eight) others were appointed temporarily as Assistant Professor in the Government Engineering Colleges of Assam as per Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 and Personnel Department’s O.M. related to appointment under Regulation 3(f) of APSC.

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5. Learned counsel for the petitioners submits that in the Advertisement No. AESRB-02/2025, the age limit of General category candidates has been provided to be not less than 21 years of age and not more than 38 years of age as on

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01.01.2025. As the petitioner Nos. 1 & 2, belong to the General category and as they have crossed the maximum age limit, the petitioner No. 1 made a representation before the Directorate of Technical Education, Assam and Member Secretary, AESRB on 03.04.2025 as well as to the Chairman, AESRB and Secretary, Higher Education Department, Govt. of Assam on 04.03.2025 praying for age relaxation for the post of Assistant Professor (Technical) in the State Engineering Colleges under the Higher Education (Technical) Department. It is also submitted that the petitioner No. 2 also made a representation before the Director of Technical Education, Assam and Member Secretary, AESRB on 07.04.2025 praying for age relaxation for the post of Assistant Professor (Technical) in the State Engineering Colleges under the Higher Education (Technical) Department. However, as till date, the representations made by the petitioner Nos. 1 & 2 are yet to be considered, they are before this Court by way of the present writ petition.

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6. With regard to the power of the Government in relaxing the upper age limit for recruitment to the public post in connection with the affairs of the State, learned counsel for the petitioner has placed before the Court a copy of the Notification No. AAP.34/ 50/27 dated 03.05.1951 of the State Government available in the Handbook of General Circulars of Government of Assam (Blue Book) which reads as follows:

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“General Rules for relaxation of Age Limits-

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In pursuance of the provisions of Article 309 of the Constitution of India, the Governor of Assam is pleased to make the following general rules regarding relaxation of the age limit for recruitment to civil services or civil posts in connection with the affairs of the State of Assam—

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(1) Notwithstanding anything to the contrary in rules regulating the maximum or minimum age of recruitment to a service of post in connection with the affairs of the State of Assam, the age limit may be relaxed in favour of any candidate or class or candidates only if (i) in cases in which the appointing authority is the Governor, or (ii) in other cases, the Head of the Department, considers this necessary in the interest of fair dealing or in the public interest.

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(2) In this rule “Head of Department’ means the authority who is declared to be the Head of the Department for the purpose of the Fundamental Rules and of the Subsidiary and Supplementary Rules made by the State Government, and includes a District and Sessions Judge.

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(3) In case in which recruitment is made through the Public Service Commission, the Commission shall be consulted before the rule is relaxed.”

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7. A Co-ordinate Bench of this Court in the case of Pranab Kumar Deka and 36 others Vs. State of Assam and 25 others [WP(C) No. 845/2014 and other connected cases] vide common order dated 03.08.2015 have held that said Notification dated 03.05.1951 was issued by the Government of Assam in exercise of the power conferred under Article 309 of the Constitution of India and as such, it has a statutory force and it would continue to hold the field until the provision in that behalf is made by or under an Act of the appropriate Legislature.

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8. The Assam Technical Education Service Rules, 1981, which is also a statutory Rule framed under Article 309 of the Constitution of India, regulates the recruitment and the conditions of service of the persons appointed to the

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Assam Technical Education Service including the post of Assistant Professor in the Government Engineering Colleges of the State.

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9. Rule 7 of the said 1981 Rules relates to “the age for direct recruitment” which provides that — “a candidate for direct recruitment to a cadre of the service of Assistant Professor in Engineering Colleges of the State, the minimum age limit is 21 years and the maximum age limit is 38 years as on the first January of the year of recruitment with relaxation in case of candidates belonging to special categories like Scheduled Caste, Scheduled Tribes and any other category as laid down by the Government.”.

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10. Rule 28 of said 1981 Rules provides for “relaxation” and stipulates that —“Where the Government is satisfied that the operation of any of these rules causes under hardship in any particular case, it may, dispense with or relax the requirement of that rule to such an extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equi-table 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.”

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11. Learned counsel for the petitioners submits that the Member Secretary, Assam Engineering Service Recruitment Board by a Notice dated 22.04.2025 has extended the date of online application in respect of the Advertisement No. AESRB-02/2025 up to 08.05.2025.

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12. After hearing the learned counsel for the parties and after a consideration of the materials available on record, the petitioner Nos. 1 & 2 are directed to file separate representations before the Secretary to the Government of Assam, Higher Education (Technical) Department annexing a certified copy of this Order along with a copy of the writ petition including the annexures appended thereto

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on or before 03.05.2025.

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13. In the event of filing such representations made by the petitioners as directed hereinabove the Secretary to the Government of Assam, Higher Education (Technical) Department shall dispose of the said representations to be filed by the petitioner Nos. 1 & 2 by a reasoned Order and in accordance with law on or before 06.05.2025 by taking into consideration the Notification of the State Government dated 03.05.1951 as well as Rule 28 of the Assam Technical Education Service Rules, 1981.

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14. With the above observations and directions, this writ petition is disposed of.

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JUDGE

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Comparing Assistant

Shasanka Sekhar Borkotoky and Anr. v. the State of Assam and 3 Ors.

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Shasanka Sekhar Borkotoky and Anr. v. the State of Assam and 3 Ors.

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