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2012 DIGILAW 1737 (JHR)

Moun Mouri v. State of Jharkhand

2012-12-17

ALOK SINGH

body2012
Order Petitioners were appointed as AYUSH Doctors pursuant to 2007 advertisement on contract basis initially for two years in the year 2008. Period of contract of two years stood expired in the month of September, 2010. Request of the petitioners for extension of contractual period over and above September, 2010 was not acceded to. Respondents have issued fresh advertisement in question, Advertisement No. 7 of 2012 for appointment of AYUSH Doctors for School Health Programme on contract basis. Upper age limit prescribed in the advertisement in question is 35 years. 2. Petitioners have knocked the door of this Court, while invoking Article 226 of the Constitution of India, assailing the upper age limit fixed in the advertisement on the ground that there is no upper age limit prescribed for the appointment of AYUSH Doctors on contract basis either in any Rules or in the Government policy, therefore, fixation of upper age limit of 35 years in the advertisement is without jurisdiction and same is also arbitrary and unjust. 3. Mr. Anil Kumai, learned counsel for the petitioners, has vehemently argued that in the previous advertisement of 2007, no upper age limit was prescribed; while referring to the Government policy, Annexure No.1, he contends that period of contract can be extended till the age of 60 years, therefore, appointment on contract basis can also be made till the incumbent reaches to the age of 60 years. 4. I have heard learned counsel for the parties and have carefully perused the record 5. Undisputedly, policy decision, Annexure No.1 to the writ petition, provides that period of contract of doctors can be extended till the doctors attain the age of 60 years. In other words, no extension shall be granted to those doctors who have already attained the age of 60 years. However, Government policy does not provide that doctors can be appointed on contract basis till they attain the age of 60 years. There is difference between fresh appointment and extension of contract period. 6. It seems that this time, Government has prescribed the upper age limit of 35 years keeping the object in mind that young doctors will come forward to join on contract basis. Fixing the upper age limit of 35 years in the advertisement, in the absence of any Rules or Regulations cannot be said to be violative of any provisions of law. Fixing the upper age limit of 35 years in the advertisement, in the absence of any Rules or Regulations cannot be said to be violative of any provisions of law. Petitioners could not show that they have any legal right to be appointed on contract basis, even if they have crossed the upper age limit of 35 years. 7. Hon'ble Apex Court, in the case of Tirumala Tirupati Devasthanams vs. K. Jotheeswara Pillai & Ors., reported in (2007)9 SCC 461 in paragraph Nos. 9 and 10, has held as under:- "9. ..... 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. 10. 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." 8. From the dictum of the judgment of the Apex Court in the case of Tirumala Tirupati Devasthanams (supra), it is absolutely clear that writ of mandamus can be issued only when petitioner is able to show his legal right and authorities are not discharging the duties which they are expected to discharge in accordance with law. In the present case, as observed hereinabove, petitioners could not establish their legal right to say they can be considered even if they have crossed the upper age limit of 35 years, nor any such provision is placed before me to say that State Government cannot fix the upper age limit while considering the candidature for appointment of AYUSH Doctors. Therefore, from both the angles writ of mandamus seems to be totally unjustified. 9. Therefore, from both the angles writ of mandamus seems to be totally unjustified. 9. Consequently, the writ petition fails and is hereby dismissed.