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
