Page No.# 1/6 GAHC010173902020 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5280/2020 SHILA RANI PAUL W/O- SHRI SHYAMAL PAUL, R/O- VILL- PECHACHORRA BAZAR, P.O. KALAIN, PIN- 788014, DIST.- CACHAR, ASSAM VERSUS THE STATE OF ASSAM AND 2 ORS. REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, DEPTT. OF HEALTH AND FAMILY WELFARE, ASSAM, DISPUR, GHY-06 2:THE DIRECTOR OF HEALTH SERVICES (FW) GOVT. OF ASSAM SWASTHYA BHAWAN HENGRABARI GHY-36 3:THE ADDL. CHIEF MEDICAL AND HEALTH OFFICER (FW) CACHAR SILCHA Advocate for the Petitioner : MR B D DAS, MRS R DEKA,MR H K SARMA,MR. D THAOSEN Advocate for the Respondent : SC, HEALTH, Page No.# 2/6 BEFORE HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER 30/07/2026 Heard Mr. B D Das, learned Senior counsel assisted by Ms. R Deka, learned counsel for the petitioner and Mr. D P Borah, learned Standing counsel, Department of Health & Family Welfare, Assam. 2. The petitioner has instituted the present writ petition praying for the following reliefs: “In the premises aforesaid, it is most respectfully prayed that the Hon'ble Court may be pleased to admit this application, call for the records and issue a Rule calling upon the Respondents to show cause as to why the petitioner's over age shall not be condoned by the Respondent No.2 in the light of the Government Notification dated 03.05.1951 and why the petitioner shall not be allowed to continue in the post of ANM as per the Order of Appointment dated 13.10.2015 (at Annexure - 6 to this petition) on the basis of her selection pursuant to the advertisement dated 18.11.2013 (at Annexure 4 to this petition) and after return of the Rule and upon such cause or causes being shown and upon hearing the parties be pleased to make the Rule absolute giving full and complete relief to the petitioner and/or pass such further or other order or orders as this Hon'ble Court may deem fit and proper. " 3. The petitioner, herein, in pursuance to a selection process for recruitment as Auxiliary Nurses & Midwives (in short, ANM), had participated in the said selection process. On conclusion of the selection process, the petitioner being Page No.# 3/6 placed within the merit position mandating appointment against the post so advertised, the petitioner, vide order dated 13.10.2015, was appointed as ANM by the Director of Health Services (Family Welfare), Assam. The petitioner, accordingly, joined her services. As the petitioner was continuing in her services, she was vide a communication dated 14.03.2019, directed to appear in the office of the Director of Health Services (FW), Assam, along with her original documents for verification. Thereafter, vide a Show Cause Notice dated 01.10.2020, the petitioner was asked to submit her clarification as to why her services shall not be terminated and she be removed from the services of ANM. The said Show Cause Notice was issued to the petitioner on the ground that during verification of her documents, it was found that the petitioner at the time of her recruitment was aged 44 years 7 months 15 days, which was much above the upper age limit prescribed in the recruitment process, which was so prescribed as 38 years, as on 01.01.2023. The petitioner submitted her reply to the said Show Cause Notice. The petitioner, thereafter, approached the Director of Health Services (FW), Assam vide a representation dated 03.11.2020, praying for condonation of her over age by reckoning the services being rendered by her as an ANM in the National Rural Health Mission (NRHM), w.e.f. 11.10.2006. The said representation not being considered, the petitioner apprehending that her services may be terminated, has instituted the present writ petition. It is to be noted that this Court vide order dated 14.12.2020, while issuing notice in the matter, had in the interim, directed that until further orders, no steps be taken by the respondents to cause disturbance to the service of the petitioner as an ANM. Further, the Director of Health Services (Family Welfare), Page No.# 4/6 Assam, was directed to look into the representation dated 03.11.2020 and pass appropriate orders. 4. Mr. Das, learned Senior counsel for the petitioner, after reiterating the facts noticed hereinabove, has submitted that this Court would be pleased to dispose of the present writ petition, with a direction to the Director of Health Services (FW), Assam to consider the representation dated 03.11.2020, submitted by the petitioner for condonation of her over age at the time of her recruitment as ANM. He submits that the petitioner having been in service of the NRHM authorities, w.e.f. 2006, the said period would be mandated to be construed, while considering the application of the petitioner for condonation of her over age. 5. Mr. Borah, learned Standing counsel, Department of Health & Family Welfare, has submitted that in the event, a direction is issued by this Court for a consideration of the said representation dated 03.11.2020, preferred by the petitioner, praying for condonation of her over age, considering the length of service already rendered by her in the department, the said prayer of the petitioner shall be sympathetically considered in the light of the provisions holding the field. 6. I have heard the learned counsel for the parties and also perused the materials available on record. 7. The learned Senior counsel for the petitioner, having only prayed for a direction upon the respondent authorities for consideration of the representation dated 03.11.2020, submitted by the petitioner for condonation of her over age at the time of her recruitment against the post of ANM, this Court is not further Page No.# 5/6 proceeding to examine the issue on merits. 8. This Court would only observe that the petitioner before being recruited as an ANM under the Director of Health Services (FW), vide the order dated 13.10.2015, had already rendered services in a Government scheme, i.e., the National Health Rural Health Mission, w.e.f. 2006. Accordingly, the petitioner is found to have been in the Government sector, although, under a Government scheme, w.e.f. 2006. The said period of her service would mandatorily be required to be taken note of, while considering the prayer of the petitioner for condonation of her over age for recruitment against the post of ANM under the Director of Health Services (FW), Assam. Further, such condonation of over age is found permissible under the provisions of the Office Memorandum dated 03.05.1951, which again was issued, invoking the provisions of Article 309 of the Constitution of India. The said position was affirmed by this Court in the case of Pranab Kumar Deka Vs. State of Assam, reported in 2015 (4) GLT 103. 9. Accordingly, the Director of Health Services (FW), Assam, is directed to take into consideration the representation dated 03.11.2020, submitted by the petitioner and consider the same in the light of the Office Memorandum dated 03.05.1951 and the decision of this Court in the case of Pranab Kumar Deka (supra). The Director shall also take into consideration the fact that the petitioner was working as an ANM in a Government scheme, i.e., National Rural Health Mission, w.e.f. 2006. On a consideration of the representation dated 03.11.2020, submitted by the petitioner, applying the above parameters highlighted by this Court, the Director of Health Services (Family Welfare), Assam shall also reckon the fact that the petitioner has been rendering her Page No.# 6/6 services, w.e.f. 13.10.2015, till date. The Director of Health Services (FW), Assam, thereafter, shall take a decision in the matter and communicate the same to the petitioner by way of a speaking order, within a period of 60 (sixty) days from the date of receipt of a certified copy of this order. 10. It is provided that the interim order passed by this Court vide order dated 14.12.2020, shall continue till the passing of the speaking order by the Director of Health Services (FW), Assam. 11. With the above observations and directions, the present writ petition stands disposed of. JUDGE Comparing Assistant