Madras High Court
R.Ananth vs The Secretary To Government on 24 September, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24/09/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)NO.9911 of 2010
W.P.(MD)NOs. 8984, 9062, 9436, 9472, 10002, 10008,8464,
8883, 8888, 9060, 9061, 9294, 9383, 9504, 9508 to 9510, 9524,
9584, 9656 to 9659, 9672, 9695, 9728, 9746, 9761, 9898, 9899,
9944, 10506, 10507 and 9492 of 2010
and
M.P.(MD)Nos.1,2,3,1,1,1,2,1,1,2,2,1,2,4,2,3,4,5,1,2,3,2,2,3,3,
1,1,2,1,2,3,1,1,1,2,2,2,3,3,3,1,2,3,1,1,1,1,2,2,2,2,3,3,3,3,1,1,1,1,2,2,3,
1,2,2,3,4,1,2,1,1,1,2 and 3 of 2010
R.Ananth .. Petitioner in
W.P.(MD)No.9911 of 2010
Vs.
1.The Secretary to Government,
Rural Development and Panchayat
Raj Department,
Secretariat,
Chennai-600 009.
2.The Director,
Rural Development Department,
Panagal Building,
Saidapet,
Chennai-600 015.
3.The District Collector,
Tirunelveli District,
Tirunelveli.
4.The District Employment Officer,
Tirunelveli District,
District Employment Office,
Tirunelveli. .. Respondents in
W.P.(MD)No.9911 of 2010
W.P.(MD)No.9911 of 2010 has been preferred under Article 226 of the Constitution
of India praying for the issue of a writ of declaration to declare Rule 4(a) of
Special Rules for Tamil Nadu Panchayat Development Engineering Subordinate
Service in regard to fixing the uniform maximum age limit in pursuant to the
Government Order passed by the first respondent in G.O.Ms.No.70, Rural
Development (E4) dated 20.03.2000 and the consequential letter issued in letter
No.3308/E3/2007-5, dated 11.05.2007 as well as G.O.Ms.No.69, Rural Development
and Panchayat Raj (CGS-1) Department dated 15.6.2010 as null and void as it is
being ultravires to the provisions enunciated in the Constitution of India and
Service Jurisprudence and thereby direct the first and second respondents to fix
maximum age limit based on community wise reservation so as to protect the right
and interest that are guaranteed in the Constitution of India as the petitioner
comes under the category of scheduled caste community insofar as the petitioner
is concerned within time limit stipulated.
!For Petitioners ... Mr.G.Thalaimutharasu
Mr.T.Lajapathi Roy
Mr.R.Rengaramanujam
Mr.P.Gunasekaran
Mr.G.Marimuthu
Mr.G.Prabhu Rajadurai
Mr.P.Muthuvijayapandian
Mr.F.Deepak
Mr.K.P.Narayanakumar
Mr.G.R.Swaminathan
Mr.T.Teen Joseph
Mr.A.Thirumurthy
Mr.T.Lenin Kumar
Mr.N.Ananthapadmanabhan
Mr.V.O.S.Kalaiselvam
^For Respondents ... Mr.P.S.Raman, Advocate General
- - - -
:COMMON ORDER
Heard both sides. The relief claimed by various petitioners are briefly as follows:
To quash G.O.Ms. No.69, Rural Development and Panchayat Raj (CGS-1) Department dated 15.6.2010, Rule 4(a) of the Special Rules for Tamil Nadu Panchayat Development Engineering Subordinate Services and also to quash G.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Department, dated 06.06.2008, and to consider the petitioners for the post of Overseers and sponsor the name of the petitioners and select them to the posts of Overseers.
2.The petitioners in all these writ petitions are yet to enter into Government service. Having obtained a Diploma in Civil Engineering/Engineering Degree in relevant subject, they have got their names registered in the various employment exchanges for getting their names sponsored for employments.
3.The main relief claimed by most of the petitioners was to set aside the order of the Government made in G.O.Ms.No.69, Rural Development and Panchayat Raj (CGS-I) Department, dated 15.06.2010. By the said G.O., additional posts were sanctioned for implementation of Mahatma Gandhi National Rural Employment Guarantee Scheme (for short MGNREGS) earlier known as National Rural Employment Guarantee Scheme. To strengthen the implementation of the Scheme in the State, District and Block levels, the Commissioner for Rural Development and Panchayat Raj recommended sanction of additional posts to cope up with the increased work load because of the scheme in various Districts. The Government on going through the recommendation made by the Commissioner, accepted the recommendation for creation of 1901 posts of various categories.
4.In these writ petitions, the petitioners are concerned only with the posts of Overseers. In paragraphs 4(vii) and 5(a), the Government ordered as follows:
"4(vii)618 posts of Overseers at Block level, at the rate of two posts for each Block in the districts of Tiruvallur, Kancheepuram, Vellore, Tiruvannamalai, Cuddalore, Villupuram, Thanajvur, Thiruvarur, Nagapattinam, Pudukottai, Tiruchirappalli, Perambalur, Ariyalur, Karur, Namakkal, Salem, Dharmapuri and Krishnagiri and one post in each Block in the districts of Ramanathapuram, Sivaganga, Virudhunagar, Madurai, Dindigul, Theni, Tirunelveli, Thoothukudi, Kanniyakumari, Erode, Coimbatore, Tiruppur and The N ilgiris.
5.The Government also order that,
(a)The posts of Overseers and Computer Assistants sanctioned shall be filled up through the Employment Exchange in accordance with the qualifications and the selection procedures already ordered. The Director of Rural Development and Panchayat Raj shall ensure that this is done expeditiously."
5.Since the above said G.O. referred to filling up of vacancies in accordance with the qualifications and the selection procedures already ordered, the petitioners are aggrieved by such order. The petitioners claimed that they have registered themselves in the employment exchanges and some of them were working in temporary or NMR capacity. Hence they should have been given the benefit of regularisation. Even otherwise, by such order, they will be edged out as they have admittedly crossed the maximum age prescribed for getting employment into the said post. The post of Overseer as per the scheme is created by the special rule for Tamil Nadu Panchayat Development Engineering Subordinate Services. Rule 4(a) as it was introduced by G.O.Ms.No.70, Rural Development (E4) Department, dated 20.03.2000 reads as follows:
"4.Qualification (a) Age : No person shall be eligible for appointment for the posts of Overseer or Road Inspector by direct recruitment, if he has completed the age of 35 years on the first day of July of the year in which the selection for appointment to the posts are made."
6.Subsequently, as there was ambiguity of the said rule, the rule stood amended by G.O.Ms.No.41, Rural Development and Panchayat Raj (E3) Department, dated 21.3.2007. The statutory amendment made by the State reads as follows:
AMENDMENT.
In the said Rule, in rule 4(a), for the words 'No Person', the words "Notwithstanding anything contained in rule 12(d) of the General Rules, no person", shall be substituted.
7.Now, after amendment the present rule read as follows:
"Notwithstanding anything contained in rule 12(d) of the General Rules, no person shall be eligible for appointment for the posts of Overseer or Road Inspector by direct recruitment, if he has completed the age of 35 years on the first day of July of the year in which the selection for appointment to the posts are made."
8.Excepting some petitions, in most of the writ petitions, there is no challenge to the amendment made to the special rule. But, however, the petitioners placed reliance upon Rule 12(d) of the Tamil Nadu State and Subordinate Services Rules. Rule 12(d) reads as follows:
"(d)The maximum age-limit prescribed in the special rules shall not apply-
(i)to the appointment of a candidate belonging to any of the Scheduled Castes, Scheduled Tribes, Backward Classes, Most Backward Class and Denotified communities or of destitute widows of all castes to a psot included in a service for which the Special Rules prescribe a qualification lower than a degree of any University mentioned in Schedule II to this part, if such candidate possesses a general educational qualification which is higher than that referred to in sub rule (a) and he is otherwise qualified for appointment;
or
(ii)to the appointment to a post included in a service of a candidate belonging to any of the Scheduled Castes, Scheduled Tribes, Backward Classes, Most Backward Classes and Denotified communities or of destitute widows of all castes who holds a degree of any University mentioned in Schedule II to this part, if the degree he holds is not lower than the degree prescribed in the Special Rules for appointment to such post and if he is otherwise qualified for appointment.
Amendments issued in G.O.Ms.No.67, P&AR (S) Department, dated 10-3-95, with effect from 28-03-1989.
Provided that, for direct recruitment to a post included in a service for which the minimum qualification required is not higher than the minimum general educational qualification, the age limit prescribed shall be increased by five years in respect of candidates belonging to Scheduled Castes or Scheduled Tribes or in respect of destitute widows of all castes, who do not possess a general educational qualification, which is higher than the minimum general educational qualification.
Provided further that for direct recruitment to a post included in a service for which the minimum qualification required is not higher than the minimum general educational qualification, the age limit prescribed shall be increased by two years in respect of candidates belonging to Most Backward Classes and Denotified Communities, who do not possess a general educational qualification, which is higher than the minimum general educational qualification."
9.According to the petitioner, Rule 12(d) which is a General Rule, must apply to the case of the petitioners and the Special Rule cannot have operation. Only by application of Rule 12(d), social justice can be established and the petitioners cannot be edged out by the reliance placed upon the Special Rules.
10.While filling up the posts of Overseers under the Rural Development and Panchayat Raj Department, the State Government by clarificatory letter in Letter No.3308/E3/2007-5, dated 11.5.2007 ordered as follows:
"2.The Government have therefore examined the Special Rules of the Tamil Nadu Panchayat Development Engineering Subordinate Service and Rule 12(d) of the General Rules of the State and Subordinate Services Rules and amended rule 4(a) of the Special Rules of the Tamil Nadu Panchayat Development Engineering Subordinate Service Rules. According to the amended Special Rule of the Tamil Nadu Panchayat Development Engineering Subordinate Service Rules, Rule 12(d) of the General Rules is not applicable for appointment by direct recruitment for the psots of Overseers, Junior Draughting Officers and Road Inspectors Grade-II in the Rural Development and Panchayat Raj Department and persons who have not completed 35 years of age as on 1st July of the year in which the appointment is made for the posts of Overseers, Junior Draughting Officers and Road Inspectors Grade-II in Rural Development and Panchayat Raj Department in addition to relaxation of 5 years of age granted in G.O.(Ms)No.98, Personnel and Administrative Reforms Department, dated 17.7.2006 are eligible for appointment, subject to fulfillment of other qualifications prescribed for the posts in the said categories. According to the existing Special Rule of the Tamil Nadu Panchayat Development Engineering Subordinate Services, those who have completed 40 years of age (35+5) are not eligible for appointment by direct recruitment to the said psots in the said categories." (Emphasis added)
11.Now, in the light of the stand taken by the Government for recruitment to the posts of Overseers, the maximum age limit for entering into the Government service was uniformly fixed as 40 years. This five years was granted because there was a ban on recruitment for various posts. Ever since the constitution of service and the special rule, the special rule came to be followed uniformly. Therefore, when the impugned G.O.Ms.No.69, RD&PR Department, dated 15.6.2010 was issued, some stipulations were made. There is no illegality for the prescription of such a condition. In the G.O., dated 15.6.2010, even though there is no specific reference to the prescription of age, but in paragraph 5(a), it was directed that posts were directed to be filled up in accordance with the qualifications and the selection procedures already ordered.
12.Subsequent to the issuance of the G.O., dated 15.06.2010, on 19.06.2010, the Director of Rural Development and Panchayat Raj issued a clarificatory letter. In paragraph 5, he had reiterated the condition as follows:
"5.According to the amended rule 4(a) of the Special Rules Tamil Nadu Panchayat Development Engineering Subordinate Services issued in the G.O. 4th cited, Rule 12(d) of the General Rules is not applicable for direct recruitment for the posts of Overseer/Junior Draughting Officer in Rural Development and Panchayat Raj Department and no person shall be appointed if he/she has completed 40 years of age (35+5=40) on the first day of July of the year in which the selection for appointment to the posts of Overseer/Junior Draughting Officer is made (I.e. 01.07.2010)." (Emphasis added)
13.Notwithstanding these developments, the petitioners have started filing writ petitions before this bench as well as before the Principal Bench. In a writ petition filed before the Principal Bench, some of the similarly placed persons initially wanted to question the prescription of upper age limit, failing which they sought for relaxation from the upper age limit on various grounds. The first such writ petition is dealt with by this court in W.P.No.17907 of 2009, dated 26.10.2009 in K.Selvaraj Vs. State of Tamil Nadu, rep. by the Secretary to Government, Revenue Department, Fort St. George, Chennai-600 009 and others. In paragraph 3 of its order, this court observed as follows:
"3.The petitioner's prayer seeking for a direction to consider his name irrespective of the upper age fixed by the respondents cannot be countenanced by this Court. The only contention raised by the petitioner is that this is the only opportunity he will have and if he is not allowed to compete he will not get any other employment. By allowing him to participate, no prejudice will be caused to the respondents. This contention cannot be accepted since in any recruitment it is for the respondents to fix the upper age limit and in the absence of any rule for relaxing the upper age limit, this Court cannot act contrary to the terms of the notification and the prayer made by the petitioner cannot be entertained by this Court."
14.Thereafter, reliance was placed upon Rule 12(d) of the General Rules and relaxation was sought for. The said contention was rejected by V.Ramasubramanian, J. in W.P.No.15030 of 2010, dated 14.7.2010 in S.Sivalingam Vs. The State of Tamil Nadu rep. by its Secretary to Government, Rural Development and Panchayat Raj Department, Fort St. George, Chennai-600 009 and others. In paragraph 3, the learned Judge observed as follows:
"3.The petitioner has crossed the upper age limit for appointment to the post of Overseer. The upper age limit prescribed by Rule 4(a) of the Special Rules for Tamil Nadu Panchayat Development Engineering Subordinate Services is 40 years. The said Rule was issued with a non obstante clause, so as to exclude the operation of Rule 12(d) of the General Rules for Tamil Nadu State and Subordinate Services. Therefore, when the Special Rules specifically override the general rule and prescribe an upper age limit, the petitioner cannot seek relaxation as a matter of right. More over, the Scheme for which the petitioner aspires is itself under the National Rural Employment Guarantee Scheme, which is for a specific duration. Therefore, the petitioner cannot seek as a matter of right to have the rule relaxed in his favour. Hence, this writ petition is dismissed....."
15.Subsequently, there was a challenge to the application of maximum age by similarly placed persons. K.K.Sasidharan, J. dealt with the same in W.P.No.3950 of 2008, dated 17.11.2008 in M.Kuppannan and others Vs. The State of Tamil Nadu and others. In paragraphs 6 to 8, it was held as follows:
""6.It is found from the Government Order in G.O.Ms.No.41 dated 21.3.2007 as well as the letter dated 11.5.2007 of the first respondent that the Government have examined the Special Rules of the Tamil Nadu Panchayat Development Engineering Subordinate Service and Rule 12(d) of the General Rules of the State and Subordinate Services Rules and amended Rule 4(a) of the Special Rules of the Tamil Nadu Panchayat Development Engineering Subordinate Service Rules and as per the amended Special Rules, Rule 12(d) of the General Rules was not applicable for direct recruitment for the posts of Overseers, Junior Draughting Officers and Road Inspectors Grade II in the Rural Development and Panchayat Raj Department and persons who have not completed 35 years of age as on First day of July of the year in which the appointment was made for the said posts were eligible for appointment subject to fulfilment of other qualifications prescribed for the posts in the said categories.
7.The petitioners are aggrieved by the stipulation as contained in Rule 4(a) prescribing the age limit of 35 years and thereby taking away the benefit of Rule 12(d) of the General Rules for appointment to the post of Overseers and Road Inspectors by direct recruitment. It is trite that the employer is at liberty to fix up the qualification as well as age limit for the purpose of recruitment and merely because such prescription causes prejudice to an individual, the same cannot be a reason to set aside the recruitment rule and more particularly the age restriction. The petitioners have no case that the relevant recruitment rules have not been followed in the matter of appointment to the service and in fact the affidavit proceeds as if in all the recruitments, the relevant rules have been followed by the Government. In fact in the earlier selection referred to in the affidavit filed in support of the writ petition there is a clear admission that, only those who have not crossed the age limit were appointed for different posts in the department. Therefore it cannot be said that the impugned rule as well as the subsequent letter is in violation of any of the provisions of the constitution or the relevant statute.
8.When there is a specific Rule prescribing the method of recruitment to the post of Overseers and Road Inspectors, the petitioners cannot be heard to say that the Government was not entitled to amend the Rule and to resort to recruitment on the basis of such amended rules. It was within the domain of the Government to amend the Rules to suit the need and in the interest of administration. The Special Rules for Tamil Nadu Panchayat Development Engineering Subordinate Service was framed under Article 309 of the Constitution of India. Power to frame rules also includes the power to amend or vary the rules and as such the Government was justified in amending the rules."
16.In the light of the above orders, the contentions raised by the petitioners cannot be entertained and the writ petitions are liable to be rejected. After several decisions of the Principal Bench, the petitioners in the Madurai Bench have once again raised similar contentions which did not find favour with the learned Judge of this court.
17.However in one such case when an appeal was filed in W.A.(MD)No.481 of 2010, dated 31.08.2010 in V.Selvakumar Vs. The Secretary to Government, Rural Development and Panchayat Department, Fort St. George, Chennai and others, the same was disposed of by the division bench. The division bench in paragraph 9 upheld the validity of the said order which is as follows:
"9.According to the appellant, the respondent cannot refuse to sponsor his candidature on the ground that he had crossed 40 years of age in view of Rule 12(d) of the Tamil Nadu State and Subordinate Service Rules. Further, this Court has already decided the said issue in the order dated 31.03.2009, in W.P.(MD)Nos.1753, 1503, 753 and 756 of 2009, wherein this Court held that the petitioners therein have crossed the maximum age provided for direct recruitment to the post of Overseer/Junior Drafting Officer and therefore they are not eligible to seek for any direction to sponsor their name for consideration for the post of Overseer. As per G.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Department, dated 06.06.2008, the maximum age prescribed for the post of Overseer in the Public Works Department is 40 years. The fourth respondent has rightly informed the appellant that relaxation of the age is a policy decision of the Government and the same would be determined by the employer depending upon the Statutory Rules applicable to the post. That apart, the appellant cannot claim the age relaxation as a matter of right and it is the discretion of the Government/employer. Therefore, the learned single Judge has rightly dismissed the writ petition."
(Emphasis added)
18.In that case, a reference was made to the order in G.O.Ms.No.96, RD&PR Department, dated 6.6.2008 wherein also similar prescription of upper age limit was prescribed and that G.O. came to be upheld by the learned Judge of this court in W.P.Nos.14222 and 14407 of 2008, dated 8.7.2008 in M.Rajesh and others Vs. State of Tamil Nadu and others. Further appeals were also rejected in W.A.Nos.776 and 777 of 2008, dated 6.8.2008. But, however the division bench in the appeal filed by V.Selvakumar did not take note of paragraph 5(a) of the G.O. (extracted above) as well as the clarification issued by the Director (RD&PR) vide his letter, dated 19.6.2010. Without reference to them in paragraphs 11 and 12 observed as follows:
"11.Having regard to the submissions made by the learned counsel for the appellant, we are of the opinion that the candidature of the appellant can be considered to the post of Overseer, since the respondents have not stipulated any age criteria in G.O.Ms.No.69, Rural Development Panchayat Raj (CGS.1) Department, dated 15.06.2010.
12.In these circumstances, we direct the fourth respondent to consider the appellant's name for the post of Overseer as per G.O.Ms.No.69, Rural Development Panchayat Raj (CGS.1) Department, dated 15.06.2010 issued by the first respondent, on merits, if he is otherwise eligible to be appointed as Overseer."
19.Even in that case, while granting such direction, this court directed consideration of name of the appellant in accordance with law and on merits. Unsatisfied with this order, the petitioners before this court once again raised the issue all over.
20.Mr.G.Thalaimutharasu, learned counsel appearing for some of the petitioners referred to the judgment of the Supreme Court in P&T Scheduled Caste/Tribe Employees' Welfare Assn. v. Union of India, (1988) 4 SCC 147 and contended that the persons belong to SC/ST will be deprived of the advantage of such reservation indirectly. In paragraph 4, the Supreme Court held as follows:
"4. It is not disputed that in many of the other departments of the Union Government the scheme of reservation of posts for the Scheduled Castes and the Scheduled Tribes is in vogue in cases of promotions from the lower grades to the higher grades when they are done on the basis of seniority subject to fitness and under the said policy the persons belonging to the Scheduled Castes and the Scheduled Tribes working in the other departments have been conferred an extra advantage which was not available to the candidates belonging to other categories and that in the Posts and Telegraphs Department also the employees belonging to the Scheduled Castes and the Scheduled Tribes were enjoying a similar advantage before November 30, 1983 on which date the policy contained in the letter dated December 23, 1983 came into force. Even the letter dated December 23, 1983 while it sets at naught the normal orders relating to reservation for the Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs Department in force in the other departments provides for the issue of specific orders by the Government under which the members belonging to the Scheduled Castes and the Scheduled Tribes could gain some extra advantage. Admittedly no such order has been issued till today. The petitioners have prayed that a direction should be issued to the Government to issue specific orders conferring on them such an extra advantage. We feel that the claim made by the petitioners is fully justified in view of the fact that similar advantage is being enjoyed by persons belonging to the Scheduled Castes and the Scheduled Tribes in other departments and only they have been deprived of it. Such deprivation violates the equality clause of the Constitution. While it may be true that no writ can be issued ordinarily compelling the Government to make reservation under Article 16(4) which is only an enabling clause, the circumstances in which the members belonging to the Scheduled Castes and the Scheduled Tribes in the Posts & Telegraphs Department are deprived of indirectly the advantage of such reservation which they were enjoying earlier while others who are similarly situated in the other departments are allowed to enjoy it make the action of Government discriminatory and invite intervention by this Court."
But, in this case, no specific allegation as to the deprivation the members belonged to SC and affected by the prescription of uniform age for recruitment has been made. On the contrary, the Government had granted 5 years uniform relaxation on the basis of the Government G.O. even though maximum age was fixed as 35 years. Presently, it is increased to 40 years.
21.Thereafter, the learned counsel relied upon the judgment of the Supreme Court in P.U. Joshi v. Accountant General reported in (2003) 2 SCC 632 and referred to the following passage found in paragraph 10 of the said judgment which reads as follows:
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate.. ..."
(Emphasis added)
22.Further, he referred to the judgment of the Supreme Court in T.N. Electricity Board v. T.N. Electricity Board Thozhilalar Aykkiya Sangam reported in (2008) 3 SCC 359. Reliance was placed upon the following passage found in paragraph 10 of the said judgment, which reads as follows:
"10. This is a policy decision taken by the Board and it has been incorporated in the Service Regulations. Therefore, the candidates were recruited on the post of Helper possessing this qualification, their channel of promotion is only to technical post and there cannot be any doubt about it. This was a categorical policy decision taken by the Board and therefore, the channel of promotion of these persons now will be only to the technical post and not to the administrative post. Therefore, this provision which has been made in the service condition cannot be said to be discriminatory or arbitrary or violative of Article 19(1)(g) in any manner. This is a policy decision of the Board and it is the Board which has to decide that who will be suitable for the post and what should be the channel of promotion for such post. It is not for the incumbent serving as a Helper to insist that the Board should amend the regulation which suits him. It is the prerogative of the Board to decide that what shall be the channel of promotion for technical and for non-technical persons. In this case the Board has decided on a rational basis that the channel of promotion of technical persons will be on technical side and not on the administrative side."
23.The learned counsel further referred to the judgment of the Supreme Court in Union of India v. Pushpa Rani reported in (2008) 9 SCC 242 and reliance was placed upon the following passage found in paragraph 37, which reads as follows:
"37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
24.The learned counsel further referred to another judgment of the Supreme Court in Dilip Kumar Garg v. State of U.P. reported in (2009) 4 SCC 753. In this case, Pushpa Rani's case was quoted with approval. He referred to the following passage found in paragraphs 15 and 17 which is as follows:
"15. In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a court of appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. (See Union of India v. Pushpa Rani8 and Official Liquidator v. Dayanand9.) .......
17. In Tata Cellular v. Union of India10 it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a rule under Article 309 of the Constitution.
25.It is not clear as to how the above four judgments referred to by the learned counsel for the petitioners are in any way helpful to the case of the petitioners. It really supports the stand of the respondents. They also point out the limited judicial review available to this court in such matters.
26.The learned counsel for the petitioners also relied upon the judgment of a division bench of this court in Union of India, Ministry of Railways, Railway Board, rep by the Joint Director, Estt.(N)-II, Railway Board, New Delhi and others Vs. Registrar, Central Administrative Tribunal, Chennai and others reported in 2009 (6) MLJ 299 for contending that the division bench found fault with the Railway Board applying uniform upper age limit for all classes of candidates. In that case, the court found that at the time of notification, the Central Government had granted different age relaxation for different communities and it was held that the Railway Board cannot prescribe an uniform age relaxation. It is not clear as to how the said judgment has any application to the case on hand.
27.The learned counsel also referred to the division bench judgment of this court in W.A.No.981 of 2009 and W.P.(MD)No.8297 of 2008, dated 19.04.2010 in State Agriculture and Horticulture Diploma Holders Association (Unemployed Wing), through its Secretary V.Balakrishnan Vs. The Commissioner of Agriculture, Office of Agricultural Commission, Chepauk, Chennai and others, wherein in paragraph 5, it was observed as follows:
"5.According to them, in this case, the Special Rules cannot prevail over the General Rules, since the above Rules specifically provide that the maximum age limit prescribed in the Special Rules "shall not apply". So, the General Rules, viz. Rule 12(d) shall prevail over any maximum age limit that may be prescribed in the Special Rules......"
28.The other learned counsels appearing for the petitioners raised similar contentions which may be slightly different from the other cases. Except for a few cases, most of the cases challenged the prescription of upper age limit which cannot be countenanced.
29.Mr.P.S.Raman, learned Advocate General countering the submissions made by the learned counsel for the petitioners contended that the issues raised in these writ petitions are no longer res integra. He took this court to the various proceedings issued by the Government from time to time and also the amendment made to Rule 4(a) in which a non absente clause was introduced thereby setting at rest any doubt that may raise. He contended that the Special Rule will override the General Rule. He also stated that lacunae pointed out in W.A.No.981 of 2009 and W.P.(MD)No.8297 of 2008 is not available to this case.
30.With reference to the prescription of age and challenge being made to such prescription, it is necessary to refer to the judgment of the Supreme Court in Tirumala Tirupati Devasthanams v. K. Jotheeswara Pillai reported in (2007) 9 SCC 461. The following passages found in paragraphs 6, 7, 9 and 10 may be usefully extracted below:
"6. Rule 4 gives a long list of rules made by the Government of Andhra Pradesh in respect of the employees of the State Government which have been made applicable to Tirumala Tirupathi Devasthanams employees, which includes the Fundamental Rules and the Subsidiary Rules issued thereunder, the Andhra Pradesh Civil Services (Conduct) Rules, 1964, the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963, etc. Rule 11 of the Rules clearly provides that no person shall be eligible for appointment to the service by direct recruitment to any post in the service of Tirumala Tirupathi Devasthanams in Annexure II if he has completed the age of 28 years or the age prescribed therefor in the said annexure as on 1st July of the year in which the notification for recruitment is issued. It also provides for general relaxation of age in accordance with the orders issued by the Government and also in respect of persons belonging to reserved categories such as Scheduled Castes and Scheduled Tribes and backward classes. Thus the Rules make complete provisions regarding qualification and age for direct recruitment and also in respect of category of persons to whom relaxation can be granted which would be in accordance with the government orders. The Rules do not mention anywhere that while making direct recruitment any services rendered as an NMR employee has to be taken into consideration or some relaxation in age is to be granted on its basis. The writ petitioners had worked for a brief period as NMR employees in 1984-86. It was after a gap of more than six years that they were appointed by way of direct recruitment on 17-8-1992. Under the Rules they were clearly ineligible for being given any appointment as admittedly they were overage.
7. Learned Single Judge allowed the writ petition mainly on the ground that on two earlier occasions the appellant had granted exemption from age and qualifications and no material was placed before the High Court as to why such a discretion could not be exercised by the appellant in favour of the employees concerned, namely, the writ petitioners. The learned Single Judge has also issued a writ of mandamus to the appellant to consider whether Writ Petitioner 5 was entitled for exemption from the requirement of age-limit having regard to certain GOs issued by the Revenue Department of the State Government. .......
9. The learned Single Judge has also issued a writ of mandamus directing the appellant to consider the case of Writ Petitioner 5 as to whether he was entitled for exemption from age qualification. As already mentioned the Rules do not make any provision for granting exemption except to the limited extent as provided in the second para of Rule 11. The principles, on which a writ of mandamus can be issued, are well settled and we will refer to only one decision rendered in Bihar Eastern Gangetic Fishermen Coop.Society Ltd. v. Sipahi Singh2 where this Court observed as under: (SCC p.152, para15) "[A] writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance."
10. There being no statutory provision or rule providing for exemption from eligibility criterion, the learned Single Judge clearly erred in issuing a writ of mandamus against the appellant directing it to consider the case of Writ Petitioner 5 for granting him exemption from the rule providing for upper age- limit for fresh appointment.
31.The Supreme Court even earlier in Ami Lal Bhat (Dr) v. State of Rajasthan reported in (1997) 6 SCC 614 held in paragraphs 5 and 6 which is as follows:
"5. This contention, in our view, is not sustainable. In the first place the fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. Basically, the fixing of a cut-off date for determining the maximum or minimum age required for a post, is in the discretion of the rule-making authority or the employer as the case may be. One must accept that such a cut-off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some persons who will fall on the wrong side of the cut-off date. That cannot make the cut-off date, per se, arbitrary unless the cut-off date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in Union of India v. Parameswaran Match Works1 and has been reiterated in subsequent cases. In the case of A.P. Public Service Commission v. B. Sarat Chandra2 the relevant service rule stipulated that the candidate should not have completed the age of 26 years on the 1st day of July of the year in which the selection is made. Such a cut-off date was challenged. This Court considered the various steps required in the process of selection and said, "when such are the different steps in the process of selection the minimum or maximum age of suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications".
This Court, therefore, held that in order to avoid uncertainty in respect of minimum or maximum age of a candidate, which may arise if such an age is linked to the process of selection which may take an uncertain time, it is desirable that such a cut-off date should be with reference to a fixed date. Therefore, fixing an independent cut-off date, far from being arbitrary, makes for certainty in determining the maximum age.
6. In the case of Union of India v. Sudhir Kumar Jaiswal3 the date for determining the age of eligibility was fixed at 1st of August of the year in which the examination was to be held. At the time when this cut-off date was fixed, there used to be only one examination for recruitment. Later on, a preliminary examination was also introduced. Yet the cut-off date was not modified. The Tribunal held that after the introduction of the preliminary examination the cut-off date had become arbitrary. Negativing this view of the Tribunal and allowing the appeal, this Court cited with approval the decision of this Court in Parameswaran Match Works case1 and said that fixing of the cut-off date can be considered as arbitrary only if it can be looked upon as so capricious or whimsical as to invite judicial interference. Unless the date is grossly unreasonable, the Court would be reluctant to strike down such a cut-off date.
32.In the light of the above binding legal precedents, the writ petitions challenging the prescription of upper age limit are liable to be rejected.
33.The cases where relaxation of age was sought for also cannot be countenanced for the very same reasons set out above.
34.The other writ petitions seeking for sponsorship of their names and the general claim made to call the petitioners for selection process also cannot be done. In W.P.(MD)No.9062 of 2010 the claim that the candidate was retrenched due to surplusage and he should be absorbed in the existing vacancies in NREGS scheme also is not feasible because all qualified persons were absorbed as an one time measure by G.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Department dated 6.6.2008.
35.In W.P.(MD)No.10008 of 2010 seeking for conducting a fresh written examination and interview on the ground that he had actually renewed his registration in the employment exchange, but his name was not forwarded since his name was kept in the dead register. Even though the State Government had issued necessary orders to keep such names in the live register and he had actually renewed, it cannot be a ground to assail the selections made already. Even if the officials of the employment exchanges have made erroneous decision or they were guilty of negligence, at the maximum the petitioners can claim compensation for their gross negligence. But by no stretch of logic the petitioner can seek for setting aside the selections made already and appointments were granted. The appointments are made for specified number of posts. Unless the petitioner is able to succeed in the writ petition, he cannot be given any appointment. Further employment exchanges are only sponsoring agencies. Therefore, the petitioner due to the negligence of certain officers of the employment exchanges cannot seek for setting aside the appointments already made.
36.In the light of the above, the reliefs claimed by the petitioners in all these writ petitions cannot be countenanced by this court. Hence all writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The Secretary to Government, Rural Development and Panchayat Raj Department, Secretariat, Chennai-600 009.
2.The Director, Rural Development Department, Panagal Building, Saidapet, Chennai-600 015.
3.The District Collector, Tirunelveli District, Tirunelveli.
4.The District Employment Officer, Tirunelveli District, District Employment Office, Tirunelveli.