N. Pandithurai vs Secretary to Government, Municipal Administration and Water Supply Department and Others

Vinod K. Sharma, J.—The petitioner prays for issuance of a Writ in the nature of Mandamus, directing the first respondent to pass orders to

relax the petitioner''s upper age for his service under the fourth respondent as per the second respondent''s circular dated 19.7.1990 and

consequently, sanction the annual increment with arrears due to the petitioner since 1.10.2000, by considering a representation dated 31.12.2011.

The petitioner was engaged as nominal muster roll under daily wage employee from 1.8.1993 in the Water Supply Improvement Scheme. The

Scheme was for a period of one year, but was to continue for another years.

The Scheme was, thereafter, handed over to the fourth respondent in terms of the circular of the second respondent dated 19.7.1990. The

Circular stipulated, that the fourth respondent should take over the staff along with the Scheme from TWAD Board through a resolution of

Municipal Council.

The petitioner was, accordingly, absorbed in the fourth respondent''s Municipality in the time scale of pay on the date of handing over the

Scheme by passing necessary resolution.

This submission is contradicted in the next para of the affidavit by stating that the petitioner was retained on daily wages of Rs. 41/- per day on

1.8.2005.

The submission of the petitioner is that the respondents informed the petitioner, that the services cannot be regularized for want of vacancy. In

1997, the fourth respondent passed a resolution for regularization of the services, but it was on 6.10.1999. The services of the petitioner could not

be regularized, as he was not eligible for appointment being over age.

The fourth respondent, therefore, sent a recommendation for relaxation of age of the petitioner.

The learned counsel for the petitioner vehemently contends, that once the recommendation has been sent for relaxing the age for absorption of

the petitioner, it is the duty of the third respondent to give concurrence to the relaxation.

This contention cannot be accepted. Once the rule prescribe the age, it is binding on the authorities concerned. The fourth respondent had no

jurisdiction to take a decision regarding relaxation. The relaxation of the rules can only be given by the competent authority under the rules, in case

such power vests under the rule that too on satisfaction of the conditions laid down under the rule of relaxation, exists. The petitioner has not

placed on record, or shown any rule under which relaxation can be given with regard to appointment.

This Court in exercise of Writ jurisdiction cannot direct any authority to exercise the discretionary relief under the rules, if any. It may be noted

that the petitioner has not shown any rule or regulation under which the age can be relaxed. In case the request of the petitioner is to be accepted,

then the rules will have to be amended, which can only be done by the competent authority by proper procedures, as may be laid down under the

rules. The pleadings in Writ neither show any legal right of the petitioner, nor the corresponding legal duty of Respondent No. 1, so no writ of

mandamus is competent.

The writ petition is, therefore being totally misconceived, as it is not maintainable in law. No merit. Dismissed. No costs.