Research › Search › Judgment

Uttarakhand High Court · body

2009 DIGILAW 486 (UTT)

MOHAN SINGH v. CHAIRMAN, ZILA PANCHAYAT, ALMORA

2009-09-17

J.C.S.RAWAT

body2009
JUDGMENT This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for the following reliefs : (i) issue a writ, order or direction in the nature of mandamus directing the respondents to consider the case of petitioner for recruitment on the post of driver considering the services rendered by him as a driver and while giving relaxation of age to him. (ii) issue any other writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (iii) Award the cost of the petition in favour of the petitioner. 2. The brief facts of the case are that the petitioner has been appointed as Driver on daily wage basis in the year 1997 in the office of the respondents. The respondent no. 2 published an advertisement dated 15.7.2009 inviting the applications for the posts of Driver and Class-IV. Pursuant to the said advertisement, the petitioner submitted his application for the post of Driver as well as for Class-IV employee, but the application of the petitioner was rejected on the ground that the petition has crossed the age limit prescribed in the said advertisement. 3. Feeling aggrieved by this, the present petition has been filed by the petitioner. 4. I have heard the learned counsel for the parties and perused the record. 5. Learned Counsel for the petitioner submitted that except the age limit the petitioner fulfills all the requisite qualifications for being appointed as Driver and moreover he had been serving in the respondents’ department as Driver on daily wage basis for the last 11 years. It was further contended that the petitioner ought to have been adjusted against the vacant post or he should have been age relaxation for being appointed as Driver in the respondents department. Learned Counsel for the respondents refuted the contention. It is admitted to the petitioner that he has crossed the prescribed age and he is seeking the relaxation of age for appearing in the examination. The Apex Court while deciding the same controversy in the case of Tirumala Tirupati Devasthanams Vs. K. Jotheeswara Pillai (D) by L.Rs. & ors. Reported in 2007 AIR SCW p/2932 has held as under :- “7. In our opinion the reasons given by the learned Single Judge for allowing the writ petition are wholly untenable in law. The Apex Court while deciding the same controversy in the case of Tirumala Tirupati Devasthanams Vs. K. Jotheeswara Pillai (D) by L.Rs. & ors. Reported in 2007 AIR SCW p/2932 has held as under :- “7. 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 that 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. In K.V. Rajalakshmiah Setty and another v. State of Mysore and another, AIR 1967 SC 993, it was held as under in paragraph 12 of the Report:- “12. There is some force in some of the contentions put forward on behalf of the State of Mysore. It is not necessary to test them as we find ourselves unable to uphold the contention of the appellants. No doubt some concession had been shown to the first batch of 41 persons and the batches of persons who had come in after the batch of 73 persons also received some concession, but after all these were concessions and not something which they could claim as or right. The State of Mysore might have shown some indulgence to this batch of 63 persons but we cannot issue a writ of mandamus commanding it to do so. There was no Service Rule which the State has transgressed nor has the State evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors. …The indulgence shown to the different batches of persons were really ad-hoc and we are not in a position to say what, if any ad hoc indulgence should be meted out to the appellants before us.” Therefore, the view taken by the learned Single Judge that by not granting exemption from age criterion the appellant had indulged in invidious discrimination is clearly erroneous law. “8. 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. “8. 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. The principles, on which a writ of mandamus can be issued, are well settled and we will refer to only one decision rendered in the case of Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. Vs. Sipahi Singh, AIR 1977 SC 2149, where this Court observed as under :- “A writ of mandamus can be granted only in 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 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 No. 5 for granting him exemption from the rule providing for upper age limit for fresh appointment. “9. 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.” 6. In view of above, there is no statutory provision for the relaxation of age in the present case. 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.” 6. In view of above, there is no statutory provision for the relaxation of age in the present case. This Court has no power to issue a writ of mandamus against the respondents directing him to consider the case of the petitioner for granting him exemption from the rule providing for the upper age limit for fresh appointment. 7. In view of the foregoing discussions, I am of the view that no interference is required in this matter. The petition is liable to be dismissed and is dismissed accordingly. No order as to costs.