Karnataka High Court
Krishna S/O Anant Naik, vs Station Commandar, on 9 October, 2013
Author: Ashok B. Hinchigeri
Bench: Ashok B. Hinchigeri
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION Nos.76191-76195/2013 (S-RES)
AND WRIT PETITION No.78295/2013
BETWEEN:
1. Krishna,
S/o Anant Naik,
Aged about 34 years,
R/o Near Vithoba Temple,
Herrwatta, Kumta,
Kumta Taluk,
Dist: Uttar Kannada.
2. Vikram,
S/o P.Tandel,
Aged about 34 years,
R/o Kumarpanthwada,
Kodibag, Karwar Taluk,
Dist: Uttara Kannada.
3. Gurudas,
S/o Subrany Fayade,
Aged 35 years,
R/o Devalamakki,
Tq: Karwar,
Dist: Uttara Kannada.
4. Prakash,
S/o Chandrakant Naik,
Aged 34 years,
R/o Bavikeri, Kanbeer,
Tq: Ankola,
Dist: Uttara Kannada.
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5. Dolla Yanku Gouda,
S/o Yanku Gouda,
Aged 37 years,
R/o Amadalli, Tq: Karwar,
Dist: Uttara Kannada.
6. Mahesh,
S/o Vithal Naik,
Aged 38 years,
R/o at: Mudga,
Post Amadalli, Tq: Karwar,
Dist: Uttara Kannada. ... Petitioners
(By Sri V.P.Kulkarni, Advocate)
AND:
1. Station Commandar,
Project Sea Bird, Karwar,
Uttara Kannada District.
2. Administrative Officer,
Grade-II,
Civil Establishment Office for
Station Commander,
Project Sea Bird,
Karwar, Dist: Uttara Kannada.
3. Flag Officer Commanding in Chief,
Head Office,
Western Naval Command,
Shahid Bhagatsingh Road,
Mumbai - 400 001.
Maharashtra State,
By its Rear Admiral. ... Respondents
(By Sri S.N.Rajendra, CGSC)
These writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to quash the impugned order
passed by the Rear Admiral Chief Staff Officer (P & A) for Flag
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Officer Commanding in Chief vide Annexure-F1 dated 6.6.2012,
Annexure-F2 dated 6.6.2012 and etc.
These writ petitions coming on for preliminary hearing this
day, the Court made the following:
ORDER
The petitioners have called into question the six orders, all dated 6.6.2012 (Annexures - F1 to F6) intimating that the petitioners cannot be appointed as firemen in Karwar Naval Base, as they have crossed the upper age limit.
2. The facts of the case in brief are that the petitioners are the registrants with the Employment Exchange. Their names were sponsored by the Employment Exchange for the post of fireman pursuant to the recruitment notification issued by the third respondent Western Naval Command. The petitioners were called for the written test and physical test vide third respondent's letter, dated 9.7.2004. On their getting through the written test and physical test, they were called upon to produce their original certificates, etc. At the stage of production and verification of their marks cards, certificates, etc., the respondent No.2 vide his letter, dated 28.2.2006 informed the petitioners that they are over-aged 4 for the post of fireman and that therefore their case for recruitment cannot be processed.
3. These orders were challenged by the petitioners in W.P.No.5484/2006 c/w W.P.No.6908/2006. This Court, by its order, dated 21.11.2011 quashed the endorsement, dated 28.2.2006 and directed the respondents to consider the cases of the petitioners in accordance with the rules applicable during the relevant period of time. Pursuant thereto, the respondent No.3 passed the impugned orders reiterating that the petitioners are ineligible for appointment to the post of fireman, as they are over-aged.
4. Sri V.P.Kulkarni, the learned counsel for the petitioners submits that as per the recruitment advertisement, the age limit is shown as 18 to 27 years. Further, the advertisement also provides for the relaxation of age by 3 years for the candidates belonging to OBC. The petitioner Nos.5 and 6 belong to OBC.
5. He submits that the subsequent recruitment advertisements (Annexures - G and H) also contain the upper 5 age limit as 27 years. He brings to my notice the recruitment advertisement published in the Employment News issue of 27.10.1012 to 2.11.2012, which also specifies the age limit as 27 years. He submits that the upper age is consistently specified as 27 years from 2003 to 2012. What can be decisively said is that the Central Government has relaxed the age limit in exercise of the power conferred by Rule 6 of the Indian Navy (Group 'C' and Group 'D') Fire Fighting Staff Recruitment Rules, 1982 ('the said Rules' for short). The said Rule reads as follows:
"6. Power to relax - Where the Central Government is of opinion that it is necessary or expedient to do so, it may, by order, and for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons."
6. Sri S.N.Rajendra, the learned Standing Counsel for the Central Government appearing for the respondent submits that the said Rules specify the eligibility-age as between 18 and 25 years. He submits that as the petitioners were over- aged as on the material date (the last date for the receipt of application), they are not entitled to be appointed as firemen. 6 He submits that the letters at Annexures-C1 to C6 make it very clear that the petitioners have no right over the appointment. Merely because they were called for the written test and passed the written test, no right has accrued to them.
7. Sri Rajendra submits that showing the upper age limit as 27 years in the recruitment notification was a mistake. Such an inadvertent mistake cannot be made the basis for claiming the appointment. He also brings to my notice the advertisement issued in 2013 (Annexure-R2), which shows the upper age limit as 25 years.
8. The submissions of the learned counsel have received my thoughtful consideration. It is nobody's case that the petitioners have suppressed any material facts or furnished wrong information. Based on their seniority at the Employment Exchange and based on the particulars furnished by the Employment Exchange, they were called for written test and physical test. It is not known why the respondents did not scrutinize and reject the petitioners candidature in 7 limine, if they were over-aged. The petitioners were also permitted to go to the next stage of appearing for the written test and physical test. Age-wise, if they were ineligible, the respondents ought not to have sent the intimation to them to appear for the written test and physical test.
9. There is no doubt that no firm rights have accrued to the petitioners. But then having got through the written test and physical test, they had the legitimate expectation that the appointment orders would be issued subject only to the production of the original certificates and marks cards.
10. I am also not persuaded to accept the respondents' version that showing 27 years as the upper age limit was a mistake. The subsequent practices would also indicate that either the upper age limit was relaxed or was not being followed strictly. The three recruitment advertisements at Annexures-G, H and A between 2003 and 2012 unmistakably and consistently show the upper age limit as 27 years.
11. If the showing of upper age limit as 27 years was an inadvertent error, the respondents should have issued the 8 corrigendum to that effect. Till now no such corrigendum is issued.
12. While disposing of the earlier writ petition filed by the petitioners, this Court in its final order, dated 21.11.2011 has also observed that on realising the mistake, the respondents have not issued any corrigendum. Even when the earlier petitions were disposed of on 21.11.2011, the upper age limit is shown as 27 years only in the advertisement issued one year thereafter.
13. The non-use and contrary practices, if continued for a long time, would raise the presumption in favour of the operation of the doctrine of desuetude.
14. I am also not impressed of the submission urged on behalf of the respondents that the said Rules are the self- contained code, because they do not provide for age relaxation for candidates belonging to SC, OBC, etc. Whereas the upper age limit is relaxed for the said categories in all the recruitment notifications.
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15. The upper age limit is shown as 25 years for the first time in 2013 after 10 years of the issuance of the recruitment notification pursuant to which the petitioners have appeared for and got through the written test and physical test.
16. For all the aforesaid reasons, I quash the impugned orders, direct the respondents to appoint the petitioners to the posts of firemen subject to their producing the original certificates, marks cards, etc. to establish their eligibility but strictly as per what is prescribed in the recruitment advertisement pursuant to which the Employment Exchange had sponsored their candidature.
Sd/-
JUDGE MD