Madras High Court
M.Ramalingam vs The Director Of Adi Dravidar Welfare on 25 February, 2013
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.02.2013 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.Nos.4609 to 4611 of 2013 M.Ramalingam .. Petitioner in W.P.No.4609/2013 A.Senthil .. Petitioner in W.P.No.4610/2013 A.Rajendran .. Petitioner in W.P.No.4611/2013 Vs. 1. The Director of Adi Dravidar Welfare Chepauk, Chennai 5 2. The District Adi Dravidar and Tribal Welfare Officer Ariyalur Ariyalur District .. Respondents in all Writ Petitions Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the 2nd respondent to appoint the petitioners as Cook in any one of the Adi Dravidar Hostels in Ariyalur District pursuant to the interview held by the 2nd respondent as per his memo dated 14.12.2010 in Na.Ka.M3/010350/09 and pursuant to the directions given by the 1st respondent to the 2nd respondent under his memo dated 10.1.2013 in Na.Ka.No.T2/27669/2012 For Petitioner in all Writ Petitions :: Mr.M.Kalayana Sundaram, Senior counsel for Mr.V.Srinivasan For Respondents in all Writ Petitions :: Mr.P.S.Sivashanmuga Sundaram, A.G.P. COMMON ORDER
The petitioners were aspirants for getting appointment to the post of Cook in the Welfare Hostel run by Adi Dravidar and Tribal Welfare Department. The petitioners have registered their name in the Employment Exchange. Many of the Juniors in the Employment Exchange seniority got their names sponsored and appointed. But, the petitioners despite having undergone interview were not selected. Hence the petitioners filed the present Writ Petitions seeking for a direction to the 2nd respondent to select them as Cook pursuant to the call letter sent to them dated 14.12.2010.
2. In the call letters sent to the petitioners, they have referred to the Government Order in G.O.Ms.No.20, Adi Dravidar and Tribal Welfare Department dated 21.2.2008 and the subsequent letters sent by the Commissioner of Adi Dravidar and Tribal Welfare Department dated 11.10.2010. Even as per the admission of the petitioners, in the earlier orders of the Government in G.O.Ms.No.21, dated 2.2.2000, the appointments to the various posts including the Cook have to be filled up by calling for names from the District Employment Exchange, which will form the basis and thereafter selection has to be done.
3. The selection will have to be made on the basis of seniority of the names sponsored by the Employment Exchange. Subsequent to the said G.O, the State Government had issued letter dated 16.8.2001, wherein the Government fixed the upper age limit of 30 years for entry into service and in respect of Adi Dravidar and Tribal People, it should be 35 years.
4. In the present cases, the petitioner in the first Writ Petition is 37 years, the petitioner in the second Writ Petition is 35 years and the petitioner in the third Writ Petition is 43 years. Therefore, the question of their being considered for appointment is clearly barred by the orders of the Government.
5. Reliance was placed upon G.O.Ms.No.98, P&AR Department dated 17.7.2006, wherein the State Government, on account of the ban on recruitment, granted 5 years relaxation in respect of the persons who are entering into service. The said G.O has been subsequently repelled by G.O.Ms.No.114, P&AR Department dated 11.8.2010 and Rule 54-B has been inserted under the Tamil Nadu State and Subordinate Service Rules by the said amendment. It is made clear that the upper age limit will be raised to a maximum period of five years reckoned on from 17.7.2006 and ending on 16.7.2011 in computing the age for appointment to any post under the Government except the categories of posts of Teachers, Doctors and Police Constabulary.
6. In the light of the statutory amendment and in view of the fact that the G.O referred to by the petitioner does not survive any more, this Court is not inclined to entertain the Writ Petitions.
7. In this context, 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, wherein the Supreme Court held that it is for the employer to fix the upper age limit. Even a concession has also been given in respect of the candidates belonging to Scheduled Caste and Scheduled Tribe. 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.
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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 Singh 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."
8. Under the circumstances, there is no case made out. Accordingly all the writ petitions stand dismissed. No costs.
25.02.2013 Index:Yes/no Internet:Yes/no ajr To
1. The Director of Adi Dravidar Welfare Chepauk, Chennai 5
2. The District Adi Dravidar and Tribal Welfare Officer Ariyalur Ariyalur District K.CHANDRU,J ajr W.P.Nos.4609 to 4611 of 2013 25.02.2013