Gujarat High Court
Virabhai vs Gujarat on 30 March, 2010
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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SCA/1451/1998 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1451 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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VIRABHAI
RATANBHAI VANKAR - Petitioner(s)
Versus
GUJARAT
ELECTRICITY BOARD & 2 - Respondent(s)
=====================================================
Appearance
:
MS
JAYSHREE C BHATT for Petitioner(s) : 1,
MR RC JANI for
Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 30/03/2010
ORAL
JUDGMENT
1. By way of this petition, the petitioner has prayed to direct the respondents to give the appointment on permanent basis for the post of Junior Assistant to the petitioner.
2. The petitioner was selected as full time apprentice for training by the respondent on 2.3.1984, for a period of one year and on 8.3.1984, the petitioner joined duty. Thereafter, he was relieved from his duty on 1.3.1985. On 10.5.1989, the petitioner was appointed as a temporary Junior Assistant with respondent and the time was extended further 26 days and the petitioner worked on the said post upto 7.7.1989. In the waiting list of the scheduled caste candidate made by the respondent Authority, the petitioner was at Sr. No.1, but he did not get any appointment order. The petitioner also sent age relaxation proposal to the Circle Officer on 12.8.1996, but the same was not considered. He had also made another representation on 30.9.1996 to GEB at Baroda, but it was not considered by the Authority.
3. This Court decided the issue of age relaxation in Special Civil Application No.3316 of 1997 vide order dated 28.10.1999. The order is reproduced as under:
1. Heard Mr. M.D. Rana and Mr.N.K. Majmudar. The petitioner challenges the communication dated 26.3.1997 Annexure F by which his name has been deleted from wait list on the ground that he has become overaged and individual concession granted by relaxing the upper age limit in all cases stand withdrawn with effect from 1.1.1997.
2. The petitioner's case is that petitioner was enrolled for apprenticeship training on 14.3.1985 by the respondent Board, and the training of apprenticeship was completed on 19.3.1986. He has been appointed on adhoc temporary basis for sporadic period. The petitioner was born on 6.1.1954. The upper age limit for recruitment for the post in question is 29 for general category and 34 years in the case of reserved category of candidates. By that standard petitioner completed age of 29 years and 34 years respectively on 6.1.1983 and 6.1.1988. Petitioner having completed training of apprenticeship in the commercial trade under the Apprentice Act was put in the wait list in order of seniority at Sr.No.68. After the petitioner has become over aged he applied for relaxation in age criterion for being appointed on preferential basis as a trained apprentice. By order dated 13/14-9-93 the order was made and as per the order petitioner's age limit was relaxed. However, the order does not prescribe any period in relaxation of upper age limit in the case of petitioner or generally.By impugned communication dated 26.3.1997, petitioner was informed that as per policy decision on 16.1.1997 relaxation in upper limit has been withdrawn and since the petitioner has become over aged his name is deleted from wait list with effect from 1.1.1997, for being considered for appointment under the Board in future. The petitioner challenges this communication inter alia on two grounds, firstly, that order bears civil consequences hence ought to have been made after affording an opportunity of hearing to the petitioner as it takes away the petitioner's right of consideration. in future. The other contention by the petitioner is that petitioner has applied on 29.6.1995 for redetermining his merit amongst apprentices of 1985-86 on account of additional qualification acquired by him during this period by increasing the weightage mark for such additional qualification and alter his order of merit from 68 to upwards on the basis of such increased marks. If that application is granted at least one person who becomes lower in merit and seniority as a result of additional qualification marks has been offered appointment. In such circumstance non offering employment to the petitioner shall be discriminatory inasmuch as person lower in merit has been granted appointment on the basis of additional marks. The petitioner has cited an illustration of one Kumari D.M. Kansagra who was given benefit of additional marks and has been given appointment on the basis of altered seniority on the merit, though in the original merit list prepared the said Kumari Kansagra was junior to the petitioner.
3. In reply affidavit, so far withdrawal of relaxation is concerned it was disclosed that several instances were brought to the administration in which candidates who had individually applied for relaxation of their age limit and were granted such relaxation, were in fact stealing march over the seniors and more meritorious persons in the matter of appointment without there being the opportunity of being considered for the vacancies by relaxation in age limit having been granted to them for want of an application. The age relaxation envisaged for the purpose in In U.P.State Road Transport Corporation vs. U.P.Parivahan Nigam Shishukhs Berojgar Sangh 1995(2) SCC 1 could only be general as a matter of policy and not individual. Thus by considering individual applications for relaxation the principle of offering equality of opportunity to all the eligible candidates in order of merit was being breached as there was no policy decision for granting general relaxation to apprentice trainees, who became entitled to preferential consideration over direct recruits in view of aforesaid decision of Apex Court. No special reasons for granting relaxation to particular person was there. Therefore as a matter of policy it was decided that no relaxation in the upper age limit should now be continued. A decision to that effect was taken by the Board on 16.1.1997 by issuing a circular to that effect and consequently all persons whose names have not been considered until 31.12.1996 i.e to say before the issuance of circular and had ceased to fulfill the age criteria their names were deleted from consideration in the wait list for the purpose of offering them appointment in future vacancies. This being a policy decision no hearing was required to be offered before taking up such decision and acting thereon. The decision was not acting retrospectively merely because it operates on facts which has come into existence in past. It acted prospectively only inasmuch it operated only in the matter of offering future employment.
4. So far question of altering the order of merit by giving benefit of additional marks on account of additional qualifications and change in seniority list and comparing with the persons junior to the petitioner having been appointed it was pointed out that so far Kum. Kansagra was concerned, her application and alteration in the seniority was made prior to the making of the application by the petitioner bringing to notice his additional qualifications on 29.6.1995. Kum. Kansagra has in fact joined on 27.6.95. Since appointment of Kum Kansagra no appointment has taken place by any person on account of alteration of seniority list, having lower merit than the petitioner on account of relaxation of age thereafter or otherwise. Therefore, no litigating right can be claimed by the petitioner on the basis of a claim of alteration in seniority as per merit on account of allotment of additional marks for additional qualifications, once he became over age and became ineligible for the appointment, inasmuch as no appointment having been offered until 31.12.1996 to any persons junior to the petitioner, even on the basis of alteration in seniority as claimed by the petitioner after the petitioner applied for such alteration on 29.6.95, and with effect from 1.1.197 all relaxations in age having been withdrawn the petitioner no more remained eligible thereafter to be appointed even at the merit which could be assigned to her.
5. In the circumstances, there being no prejudice to the petitioner on that basis, petitioner is not entitled to any relief.
6. Having carefully considered rival contentions I am of the opinion that the petition must fail. There is force in the contention of learned counsel for the respondent that relaxation in the age limit offered earlier being in a manner causing breach of Articles 14 and 16 of the Constitution of India in the matter of offering equality of opportunity of employment by respondent Board which is an instrumentality of the State.
7. In U.P.State Road Transport Corporation vs. U.P.Parivahan Nigam Shishukhs Berojgar Sangh 1995(2) SCC 1 the Apex Court laid down that in the context of the object and scheme of Apprentice Act, legitimate expectancy is there for some preferential treatment in the matter of offering appointment by the establishment to apprenticeship trainees. The court pointed out that appointment ought to be offered to such trainee apprentices in preference to direct recruitment by laying down guidelines to regulate such preference. One was relaxation in the mode of calling names from employment exchange. Another direction envisaged was that their names should be listed in order of yearwise apprentice ship training and inter se order of preference in offering appointment as and when vacancy arises should be maintained on that basis subject to other qualifications. Specific observations were made about age relaxations in cases where appointments are not offered in near future. The court devised formula by which age could be relaxed in such cases by exercising discretion vesting under the relevant rules of the organization governing recruitment.If no such rules exist then, the age relaxation could be maximum up to the period for which training was imparted. That relaxation was to operate generally in all cases and not individually. It was never envisaged that relaxation of unlimited period to be given in the case of offering appointment to the apprentice trainees and that too in cases of few applicants. The order relaxing the upper age limit in the case of petitioner which was made in September 1993 can only have one of the two effects firstly that the age was relaxed in respect of vacancies which were being considered then and not for any future vacancies which were not in contemplation to be filled at that time. If that were so no fresh age relaxation was there for vacancies which were not filled in 1993. The other interpretation, which is advanced by learned counsel for the petitioner, is to treat relaxation permanently in case of the petitioner. Thus construed the petitioner or some of the individual case were given free period to be appointed in future, at any time without any upper age limit at any time. That obviously would be against all norms of giving relaxation in age irrespective of claims of others to compete for such recruitment and those who are excluded on the basis of attaining maximum age. Neither such permanent relaxation was envisaged by the decision of the Supreme court in U.P. S.R.T.C (supra) nor any such rules have been shown in existence under which indefinite age relaxation for the purpose of filling of future vacancy could be filled up. The relaxation in upper age limit could be an exercise each time when vacancies are to be filled.
8. I therefore am of the opinion that the respondents were justified in taking a policy decision to delete all such indefinite relaxations for the purpose of consideration for offering appointments in future. It being a policy decision governing future recruitment did not require a hearing before acting upon it and not considering the persons who had become overaged when question of filling vacancies in future arose except to the extent envisaged by the Supreme court in the aforesaid decision.
9. Undoubtedly, petitioners do not remain eligible within the criterion laid down by the Supreme court in the aforesaid case, inasmuch as even by taking into consideration the maximum period of age relaxation envisaged by the Supreme court petitioner has ceased to be eligible for being offered appointment. No individual relaxation can be granted to tag an individual's case for all future vacancies, forfeiting the right of employer taking policy decisions before future recruitment takes place to provide new eligibility criterion and by acting upon that.
10. This being the position the writ would not be issued to restore a situation which perpetuate breach of constitutional guarantees in the matter of public employment at the hands of the State or instrumentality of the State. The first contention raised by the petitioner therefore fails.
11. So far as second contention is concerned, I do not find any force in that contention also in view of the specific plea taken by respondents that no person, since the application was made by petitioner for alteration in his seniority, on the basis of even altered seniority, who became junior to the petitioner, was offered employment, with age relaxation. Appointment on the basis of modified merit prior to making of the application by the petitioner cannot be compared with the case of the petitioner with age relaxation for the purpose of invoking article 14 and 16 of the Constitution.
12. No other point has been urged.
Petition therefore fails and is hereby dismissed.
Rule discharged. No order as to costs.
4. In view of the above referred decision, the issue raised in the present petition is squarely covered by the aforesaid decision. Therefore, for the reasons set out in the said decision, the present petition is rejected. Rule is discharged with no order as to costs.
(K.S.JHAVERI, J.) ynvyas Top