- (1.)Present writ petition has been preferred mainly for the reason that the petitioner has applied for the post of Constable in pursuance of the public advertisement published in local newspaper on 13th January. 2004. The cut-off date for calculation of minimum and maximum age as per Clause 4 of the public advertisement is 1st January, 2004 and minimum age required is 19 years and maximum age in the category, for which, the petitioner has applied is 37 years. The petitioner belongs to Most Backward Class Category. In this category, maximum age limit prescribed is 37 years as on 1st January, 2004. The candidature of the present petitioner has been rejected on the ground that the petitioner was over age candidate as on 1st January, 2004. Learned Counsel for the petitioner submitted that the respondent-Government has power of age relaxation and, therefore, the petitioner's age, which is 37 years 2 months and 28 days as on 1st January. 2004 should have been accepted by relaxing the age limit for the candidature on the post of Constable. The respondents ought to have relaxed 2 months and 28 days period for the petitioner. Learned Counsel for the petitioner is relying upon Annexures-6 and 9. Annexure-6 is a judgment and Annexure-9 is a circular. Learned Counsel for the petitioner has read paragraph 3 of the judgment delivered by this Court in L.P. A. No. 660 of 2005 dated 4th May. 2006. which is at Annexure-3 to the memo of the petition.
(2.)Paragraph 3 of the aforesaid Judgment reads as under:
3. It is not in dispute that the appellant was under age as on 1st January, 2004. By that time, he disclosed his date of birth as on 1st January, 1985 and thereby, there was no mis-representation on his part. There is a provision to relax any condition of service, commonly known as 'Relaxation Rule', framed under proviso to Article 309 of the Constitution of India by the then State of Bihar vide Resolution No. 111/R-2010/55A-11505 dated 28th November. 1956. The competent authority has been empowered to relax any condition of service in regard to any individual or a class of persons in case of hardship. Such power being vested with the competent authority, it is always open to any candidate to apply, though he may not fulfill one or other condition of service, such as, minimum age prescribed for appointment and can expect that favourable decision is taken. If no such application is filed, there will be no occasion for the competent authority to exercise of power of relaxation as conferred by Rule dated 28th November. 1956. In such a situation, it was always open to any candidate to apply with a hope for relaxing the specific criteria and if no mis-representation is made, it cannot be held to be misleading the authority.

If a person is not eligible, the appointment can be held to be irregular or illegal or ab initio, void but that will not amount to mis-conduct or dereliction of duty or insubordination and thereby, no departmental proceeding for major punishment is attracted. The service of a person can be terminated on the ground of irregular or illegal appointment or appointment ab initio void but such person cannot be dismissed from service as a major punishment.

An illegal appointment cannot be legalized. Similarly, an appointment ab initio void cannot be recognized. But if any appointment is irregular, it can be regularized or may regularize automatically by efflux of time. If all procedures for appointment are made but if underage person is appointed, on attaining prescribed age, the appointment automatically stands regularized and, thereafter, it cannot be held to be illegal. Similar case fell for consideration before a Bench of this Court in the case of Cosmas Bhengra v. State of Jharkhand & Ors., 2005 3 JCR 271 . That was also a case where a person, who was under age, i.e. three days less than the prescribed age, was appointed. In his case also, the State of Jharkhand dismissed him on the ground of misconduct, he having been appointed, below the prescribed age. The Court held that misconduct cannot be alleged without enquiry and further held that in case, the said petitioner was underage, the relaxation could have been granted under the Relaxation Rules.

(3.)Learned Counsel for the petitioner further submitted that there are approximately 12.000 vacancies for the post of Constable. These vacancies were never arisen as on 1st January, 2004, but they are accumulated and are of the previous year and, therefore also, the upper age limit should have been relaxed. The petitioner is working as a Home Guard since last several years and, therefore also, the upper age limit should have been relaxed.