Tirumala Tirupati Devasthanams vs K. Jotheeswara Pillai (D) By Lrs.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(SC) 653

2007(3) Supreme 1022
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
G.P. Mathur and A.K. Mathur, JJ.
Tirumala Tirupati Devasthanams — Appellant
versus
K. Jotheeswara Pillai (D) By Lrs. & Ors. — Respondents
Civil Appeal No. 7962 of 2004
Decided on 3-5-2007
Counsel for the Parties :
For the Appellant : Mrs. K. Amareswari, Sr. Advocate, B. Sridhar and K. Ram Kumar, Advocates.
For the Respondents : Miss T. Anamika and T.N. Rao, Advocates.

Headnote:SERVICE LAW — Tirumala Tirupati Devasthanams Employees Service Rules, 1989 — Rule 11 — Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963 — Rule 11 — Appointment — Rules made complete provisions regarding qualification and age for direct recruitment and also in respect of category of persons to whom relaxation could be granted in accordance with Govt. orders — No person who had completed age of 28 years was eligible for appointment by way of direct recruitment — Five petitioners were temporarily appointed as Attenders by appellant on 17-8-1992 on basis of circular issued by appellant providing that ex-employees could be appointed in order of seniority — Their services were terminated on 30-12-1993 on ground that they were over age and thus ineligible for appointment — High Court allowed writ directing their reinstatement with full back wages — Appeal — Impugned order was untenable — Merely that on two earlier occasions appellant had granted exemption from eligibility criteria for some employees could not be a ground to grant relief to petitioners — Rules did not provide for granting exemption except to a limited extent as provided in rule — There being no statutory provision or rule providing for exemption from eligibility criterion, High Court erred in issuing writ of mandamus directing appellant to consider case of petitioners from granting them exemption — Impugned judgment was liable to be set aside.
       Held : 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 over age. (Para 5)
       In our opinion the reasons given by the learned Single Judge for allowing the writ petition are wholly untenable in law. Merely because on two earlier occasions the appellant granted exemption from eligibility criterion in respect of some employees cannot be a ground to grant relief to the writ petitioners. Even if some concession had been shown to some employees in the past it would not confer any right upon anyone seeking employment in future to claim exemption from eligibility criterion as a matter of right. (Para 7)
       The learned Single Judge has also issued a writ of mandamus directing the appellant to consider the case of writ petitioner No. 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. (Para 8)
       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 No. 5 for granting him exemption from the rule providing for upper age limit for fresh appointment. In view of the discussion made above the impugned judgments of the High Court cannot be sustained and must be set aside. The appeal is accordingly allowed. The judgment and order dated 20.11.1997 passed by the learned Single Judge and the judgment and order dated 21.1.2003 of the Division Bench are set aside and the writ petition filed by the contesting respondents is dismissed. (Paras 8 and 9)

JUDGMENT

G.P. Mathur, J. — This appeal, by special leave, has been preferred against the judgment and order dated 21.1.2003 of a Division Bench of Andhra Pradesh High Court by which the writ appeal preferred by the appellant was dismissed and the judgment and order dated 20.11.1997 of a learned Single Judge, by which the writ petition filed by the respondents was allowed with certain directions, was affirmed.

2. The original writ petitioners before the learned single Judge worked for certain periods with the appellant Tirumala Tirupati Devasthanams as Nominal Muster Rolls (for short ‘NMR’) employees. A circular was issued by the appellant on 25.7.1990 wherein it was mentioned that in case of any vacancies, ex-employees should be appointed in order of seniority. The five writ petitioners were temporarily appointed as Attenders by the appellant on 17.8.1992 on the basis of aforesaid circular being ex-employees. After verification of the records and other documents it was found that all the five writ petitioners were overage and were not eligible for appointment and accordingly their services were terminated on 16.4.1993. This order was challenged by the employees by filing Writ Petition No. 5176 of 1993, which was allowed only on the ground that the action had been taken against the writ petitioners without issuing any notice and without giving an opportunity of hearing. The order of termination dated 16.4.1993 was set aside leaving it open to the appellant to take fresh action after giving notice to the concerned employees. The appellant then issued notices to the concerned employees on 26.10.1993 and after considering their reply, passed an order on 30.12.1993 terminating their services on the ground that they were over age and, therefore, ineligible for appointment. The employees then filed writ petition No. 3885 of 1994 challenging the order of termination dated 30.12.1993. A learned Single Judge of the High Court allowed the writ petition and set aside the order of termination of service and directed the appellant to reinstate the employees (respondents herein) with continuity of service and full back wages. The main ground which weighed with the learned Single Judge was that though the writ petitioners were appointed as direct recruits on 17.8.1992, but the fact that they had earlier worked for some time on NMR could not be ignored. It was also held that the appellant had practiced invidious discrimination among persons belonging to the same class inasmuch as by proceedings dated 6.4.1993 exemption had been granted to 51 persons from age and educational qualifications and on 4.5.1990 exemption had been granted to five persons who were under age. After mentioning the said facts the learned Single Judge held as under:-

“..........................Nothing is placed before the Court to show as to why such a discretion could not be exercised by the board of trustees in the case of the petitioners. In fact, the decision of the Board of Trustees refusing to exercise the power of exemption is not laid before the Court for perusal. There is only a reference to that effect in the impugned order.

In the result, the writ petition is allowed. The impugned order is quashed. A writ of mandamus shall issue to the respondents to reinstate the petitioners 1 to 4 into service with continuity of service and with full back wages. Further, the respondent is directed to consider the case of the petitioner No. 5 as to whether he is entitled to be exempted from the operation of age qualification vested in the trustees under rule (I) of the general rules in G.O. Ms. No. 1060, Revenue, (Endt. I) department, dated 24.10.1989 within a period of one month from the date of receipt of a copy of this order. No costs.

The rule nisi has been made absolute as above.”

The writ appeal filed by the appellant was summarily dismissed by the Division Bench of the High Court by a brief order.

3. Learned senior counsel for the appellant has submitted that the servic

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2007 Supreme(SC) 653

Cases Referred (2)