Savitha T. Hegde vs State of Karnataka and Others

P.B. Bajanthri, J.—The petitioner has sought for issuance of writ of certiorari to quash the impugned letter of information dated 21.3.2014 in No. 4349/14 passed by the third respondent; to direct the second respondent to direct the third respondent to follow the judgment rendered by the Hon''ble Supreme Court and this Court and to extend age relaxation to the petitioner and has also sought for a direction to the third respondent to consider her candidature for the post of stenographer by giving age relaxation.

It is the case of the petitioner that she had worked as Stenographer in the Fast Track Court-IV, Mysore, on consolidated pay for the period from 19.2.2004 to 31.5.2013. On 25.1.2014 the second respondent issued a notification to fill up 15 posts of stenographers. The petitioner is one of the candidate. It is submitted that her candidature was not considered for the post of stenographer in pursuance of the notification dated 25.1.2014 as she was over aged as on the last date for submission of application to the post i.e. as on 18.2.2014. The second respondent communicated the reasons for non-consideration of the petitioner''s claim namely giving age relaxation with reference to her service rendered on consolidated pay read with decision in W.A. No. 534/13. The petitioner being aggrieved by the communication bearing No. TO. No. 4349/2014 dated 21.3.2014 vide Annexure-A presented the above writ petition.

Heard the learned counsel for the petitioner and the respondents.

The grievance of the petitioner is that she has completed 9 years 3 months'' of service in Fast Track Courts and as such she is entitled for age relaxation as per the judgment of the Hon''ble Supreme Court and if her candidature is not considered, she may not get any job, as she is age barred. Further it is contended that rejection of her candidature is contrary to the judgment passed by the Hon''ble Supreme Court and this Court and as such the impugned communication is liable to be quashed.

The respondents have resisted the writ petition contending that there is no provision of law for giving age relaxation to the petitioner in pursuance of the notification dated 25.1.2014 and it was also contended that in pursuance of the decision in W.A. No. 534/13 the Government has not passed any legislation/executive order to relax the age to those Stenographers who were appointed on consolidated pay like petitioner herein. Further it is contended that petitioner was not appointed as Stenographer on consolidated pay in accordance with law and she is not entitled for any relief with reference to the decision of the Apex Court, rendered in Secretary, State of Karnataka and Others Vs. Umadevi and Others, . Further, relied on one more decision of the Apex Court which is reported in (2009) 1 SCC (L and S) 943 (Official Liquidator vs. Dayanand).

The petitioner was appointed as a Stenographer on consolidated pay of Rs. 2,750/- to work in the FTC-IV, Mysore from 13.2.2004. The petitioner has produced order of appointment dated 13.2.2004 as per Annexure-B. One of the conditions imposed by the second respondent is that her appointment is purely temporary and part-time and subject to termination without giving notice and assigning any reasons. Having regard to the nature of the appointment the petitioner has no vested or legal right to seek any relaxation of age for the recruitment to the post of Stenographer, pursuant to Notification dated 25.01.2014.

The crux of the matter is whether the petitioner is entitled to age relaxation to the post of stenographer in pursuance of the notification dated 25.1.2014 issued by the second respondent to fill up 15 posts of stenographers in the pay scale Rs. 14,550-26,700/.- or not? The said notification vide Annexure-D contains the name of the post, number of posts, pay scale classification of posts, qualification, method of selection, age, age relaxation, probation period, mode of submission of application by those who are in government service, mode of submission of application and relevant documents to be submitted along with the application. For the purpose of present matter, age criteria and age relaxation are relevant, which are reproduced herein:

The second respondent has given age relaxation to some of the candidates who fit into the clauses stated in the Notification dated 25.01.2014. The petitioner do not fall in any one of the aforesaid category. Consequently, the second respondent rightly did not consider name of the petitioner. At this juncture, it is to be noted that the petitioner has not sought for direction to incorporate those candidates who have worked as Stenographer on consolidated pay in various Fast Track Courts in the relaxation of age criteria vide Notification dated 25.01.2014. In the absence of seeking such direction and so also without their being a provision for relaxation of age to those candidates who had worked as stenographers on consolidated pay in the Fast Track Courts the petitioner is not entitled for age relaxation. More over, it is a policy decision of the Government in prescribing method of recruitment to the posts.

The petitioner relied on the decision of this Court passed in W.A. No. 534/2013 and so also decision of the Apex Court passed in Brij Mohan Lal vs. Union of India. It is to be noted that insofar as W.A. 534/2013 is concerned, the matter pertains to regularization of those who were appointed on consolidated pay and who had completed number of years of service. This Court was pleased to observe at. Paragraph 5 of the judgment, which reads as follows:-

"5. While reconsidering the claims of the appellants, the Government may as well take into account the fact of continued service of the appellants and the requirement of experienced staff in the Courts to be newly opened as part of expansion of the existing establishment of the Civil and Criminal Courts in the State. Therefore, at this stage, it may suffice to observe that, while reconsidering the matter in terms of the impugned order, the Government will consider the group of the appellants as a separate and different class and on that basis may as well consider their claim for relaxation of the age limit by the number of years of service already put in by them in the Fast Track Courts for the purpose of their recruitment/absorption/re-appointment in the same cadre in which they have been serving. Subject to these observations, the appeals are disposed without interfering with the impugned order." Insofar as the decision of the Apex Court is concerned, the petitioner has relied on para 9(h) which reads as follows:-

"9(h) All sitting/or former Fast Track Judges who are directly appointed from the Bar and are desirous of taking the examination and interview for regular appointment shall be given age relaxation. No application shall be rejected on the ground of age of the applicant being in excess of the prescribed age." The decision in W.A. 534/2013 and connected matter relates to regularization of services of Group-D and Group-C employees who were appointed on consolidated pay/contract basis, they are entitled for age relaxation limit by number of years of service already put in by them in the Fast Track Courts for the purpose of their recruitment/absorption in the same cadre in which they have been serving. It is to be noted that as on the date of notification inviting application from the eligible candidates to the post of Stenographer namely 25.1.2014 the petitioner was not in service. She had served from 19.2.2004 to 31.5.2013. Having regard to these factual aspects, the petitioner is not entitled for benefit of age relaxation having regard to the observations made by this Court in W.A. 534/2013. Assuming that the petitioner is entitled for age relaxation with reference to the decision in W.A. 534/2013 read with the decision of the Apex Court in the Brij Mohanlal''s case still the petitioner is not entitled for age relaxation for the reason that Rules of Recruitment read with KCS General Recruitment Rules, 1977 are not amended appropriately for the purpose of granting age relaxation to those candidates who are appointed on consolidated pay/contract basis in various Fast Track Courts. In other words Government is yet to take decision. The State Government is not arrayed as respondent to the above Writ Petition. Therefore, the petitioner is not entitled for age relaxation as sought for in this writ petition.

The decisions of the Court/s cannot be straight away applied in a given case. The factual aspects are to be analysed with reference to the Rules of Recruitment governing the post. If the Rules do not provide for particular method like in the present case age relaxation to a class of persons who have been appointed as Stenographers on consolidated pay, those aforesaid persons form a class of persons. Similarly, age relaxation which has been given to some of the class of persons in the notification dated 25.1.2014 which is not challenged by the petitioner. As long as stenographers/Group-C and D employees who have been appointed on consolidated pay to work in various Fast Track Courts which has not been reflected in the category of relaxation of age in the Notification dated 25.1.2014 the petitioner is not entitled for age relaxation. The Apex Court in the case of Nair Service Society Vs. Dr. T. Beermasthan and Others, , held as follows:

"48. Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. In our opinion the communal rotation has to be applied taking 20 vacancies as a block." Scope of the judiciary in the matter of prescription of qualification and method of recruitment is limited. In other words, the Court cannot direct the Government to legislate in a particular manner/mode or method. In other words the Courts cannot step into the shoe of legislation. The Apex Court in Tirumala Tirupati Devasthanams Vs. K. Jotheeswara Pillai (D) by LRs. and Others, held as follows:-

"5. Rules 1, 2, 3 and 11 of the Rules read as under:

"1. These rules may be called Tirumala Tirupathi Devasthanams Employees Service Rules, 1989.

They shall apply to every employee of Tirumala Tirupathi Devasthanams except to the officers or staff taker, on contract basis and officers or staff taken on deputation from the Government or other organization.

Unless the context otherwise requires-

(i) ''Act'' means the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987.

(ii) Words and phrases used but not defined in these Rules shall have the same meaning assigned to them in the Act, the rules framed thereunder or in respect of rules specified under Rule 4.

* * *

Age.-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 therefore in the said annexure as on 1st July of the year, in which the notification for recruitment is issued:

Provided that the orders issued by Government from time to time regarding the general relaxation of the age and age relaxation in respect of person belonging to reserved categories such as Scheduled Caste, Scheduled Tribe and Backward Class shall apply."

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 Fisherman Coop. Society Ltd. v. Sipahi Singh where this Court observed as under: (SCC p. 152, para 15)

"[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."

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."

In view of the above principle laid down by the Apex Court, the petitioner is not entitled to any relief in the matter. The petitioner has not made out a case so as to interfere with the impugned communication dated 21.3.2014 (Annexure-A) issued by the second respondent.

For the foregoing discussion, I do not find any merit in this writ petition and the same, therefore, shall stand dismissed without any costs.