Engagement of a person as casual labourer even for a considerably long duration does not confer any legal right on him to seek a mandamus for relaxation of age limit, holds the High Court of Kerala

 JUDGMENT IN REVIEW

The High Court of Kerala, considering a writ petition filed by one P.N. Soman, a percussion instructor employed by the Kerala Kalamandalam Deemed University on daily wage basis, seeking relaxation of age limits fixed by the University for securing permanent appointment to Instructor post, has held¹, following the ratio laid down by the Apex Court in Union of India and another v. Arulmozhi Iniarasu and Others (2011) 7 SCC 397, that the engagement of a person as casual labourer even for considerably long duration did not confer any legal right on him for seeking a mandamus for relaxation of age limit.

The respondent, Kerala Kalamandalam Deemed University, desirous of having permanent recruitment to certain posts, including the post once held by the petitioner, namely Instructor Grade II issued a notification, first in 2010, fixing  an upper age limit of 39 years for open category candidates, and thereafter in 2014, fixing  an upper age limit of 42 years for open category candidates. The petitioner however was beyond the zone of consideration in terms of upper age limit as he was 42 years old at the time of the issuance of the first notification in 2010 and 46 years at the time of the issuance of the second notification in 2014. No recruitment was however conducted by the University after the first notification in 2010 as service regulations had not been framed by the University then. Rectifying the said omission, the University framed comprehensive regulations in September 2014, following which the second notification was issued shortly thereafter.  In the second notification, age relaxation was provided only on community basis (to Scheduled Castes/Scheduled Tribes and other eligible communities) than on the basis of prior experience, if any in the post. 

Appearing for the Kalamandalam, Adv: S. Subash Chand contended that conditions of recruitment are essentially a matter of policy and unless there is any violation thereof, the Court would not be inclined to interfere with the discretion of the employer in recruiting the most eligible persons. Accordingly, he sought the dismissal of the writ petition placing reliance in support of his submissions, on the decisions of the Apex Court in Union of India and another v. Arulmozhi Iniarasu and Others (2011) 7 SCC 397; Union of India and Others v. Shivbachan Rai (2001 (9) SCC 356) and Tirumala Tirupathi Devasthanams v. K.Jotheeswara Pillai (D) by L.Rs. And Others (AIR 2007 SC 1771). 

Justice Dama Seshadri Naidu before whom the writ petition came up for hearing, found considerable force in the arguments advanced by Mr. S. Subash Chand, Standing Counsel for the Kerala Kalamandalam, and said that so long as the employer abides by the recruitment regulations and does not discriminate against similarly placed persons, no judicial intervention is called for. 

Relying on the dictum laid down in Tirumala Tirupathi Devashanams v. K.Jotheeswara Pillai (D) by L.Rs. And Others (AIR 2007 SC 1771), Justice Naidu said, the Honourable Supreme Court, taking note of the facts that the employer therein provided certain concession to some people on earlier occasions, has observed that even if some concession had been shown to some employees in the past, it  would not confer any right upon others seeking employment in future to claim exemption from eligibility criterion as a matter of right.

Expounding on the scope and principles of issuance of a writ of mandamus, Justice Naidu adverted to the decision of the Supreme Court in The Bihar Eastern Gangetic Fishermen Co-operative Society Limited v. Sipahi Singh, AIR 1997 SC 2149, wherein the Apex Court had held: 

"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 limits 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."

The High Court of Kerala also relied on the decision reported in Union of India and Others v. Shivbachan Rai (2001 (9) SCC 356), wherein the Supreme Court had observed that in the absence of any challenge laid against the recruitment regulations, insisting on having age relaxation cannot be sustained. 

Dismissing the writ petition, Justice Naidu held, 

“In my considered opinion, the issue as to the age relaxation remains judicially well established without calling for further cogitation. It may have to be repeated that the respondent University has followed a uniform policy and has not discriminated against any particular claimant. So long as the respondent University has followed the recruitment regulations and has not offended any principles of fairness, including any putative fundamental rights of the petitioner, this Court does not see any reason to interfere with the process of recruitment.”

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1. WP(C).No. 14610 of 2010 decided on 11.11.2014