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2014 DIGILAW 386 (GUJ)

J. B. Vyas v. State of Gujarat Thro Secretary

2014-03-13

ABHILASHA KUMARI

body2014
JUDGMENT : Abhilasha Kumari, J. Rule. Mr. D.M. Devnani, learned Assistant Government Pleader, waives service of notice of Rule for respondent No. 1 and Mr. A.S. Supehia, learned advocate, waives service of notice of Rule for respondents Nos. 2 and 3. 2. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally. 3. The petitioners (thirteen in number) have approached this Court by way of the present petition under Article 226 of the Constitution of India, inter alia, with a prayer to direct the respondents to give priority to them by waiving the upper age-limit for the recruitment being undertaken for the post of Peon, pursuant to the advertisement dated 19-7-2012, and to direct the respondents to accept their application forms. The petitioners were initially appointed as Peons on daily wage/ad-hoc basis on fixed pay, on different dates, by the Principal District Judge, Gandhinagar. On availability of regularly selected Class IV employees, the services of the petitioners, who were appointed on a purely ad-hoc basis, came to be terminated with effect from 30-6-2008. The petitioners filed petitions being Special Civil Application No. 8752 of 2008 with Special Civil Application No. 9377 of 2008, against the orders of termination. It was further prayed in the said petitions that the Select List for direct recruitment be quashed and set aside, insofar as it excluded the petitioners. The petitions came to be rejected by a judgment dated 19-7-2010. The petitioners preferred Letters Patent Appeal Nos. 1206 of 2012 in Special Civil Application No. 8752 of 2008 and Letters Patent Appeal No. 2039 of 2011 in Special Civil Application No. 9377 of 2008, which came to be withdrawn by them on 18-1-2013, with a view to pursuing the present petition. 4. It is the case of the petitioners that though, by the afore-mentioned judgment dated 19-7-2010, this court had directed respondent No. 2 High Court of Gujarat not to appoint any person on the select list beyond Sr.No.40, however, certain persons had been so appointed on ad-hoc basis. The petitioners submitted various representations to respondent No. 2 as well as to respondent No.3, Principal District Judge, Gandhinagar, for absorption on the post of Peon. The petitioners submitted various representations to respondent No. 2 as well as to respondent No.3, Principal District Judge, Gandhinagar, for absorption on the post of Peon. The petitioners rely specifically upon a communication dated 5-2-2011, made by the Registrar (Administration) of respondent No. 2 to respondent No.3, wherein it is stated that as the petitioners have already worked as Peons in the District Court, Gandhinagar, on ad-hoc basis, in case they apply in future pursuant to the advertisement for appointment to a Class-IV post in the said District Court their cases be considered and, if so required, relaxation of age limit and preference, be given to them in the matter of appointment. This was to be done considering their past experience. The petitioners further rely upon a communication dated 8-7-2011, addressed by the Registrar (Administration) of respondent No. 2 to respondent No. 3, wherein reference is made of the application of petitioner No. 11, by stating that as the said petitioner has already worked as Peon on temporary and ad-hoc basis, in case he applies in the future pursuant to the advertisement for appointment to a Class IV post in the said District Court his case be considered and, if so required, age-relaxation and preference in the matter of appointment be given to him, considering his past experience. Both the letters are Appended as Annexure “H” collectively, to the petition. 4.1. Respondent No. 2 issued an advertisement for recruitment to Class IV posts on 19-7-2012, wherein it was stated that over and above the age-relaxation admissible to certain categories, a further relaxation of 5 years be given to candidates of all categories. It may be noted that prior to the issuance of this advertisement, the recruitment process on the establishments of the subordinate courts were being conducted by the concerned Principal District Judge of the District. A policy decision was taken by respondent No. 2, introducing the system of Centralised Recruitment, meaning thereby that respondent No. 2 would henceforth undertake the procedure of recruitment to the posts on the judicial establishments of all subordinate courts in the State of Gujarat. The advertisement dated 19-7-2012, was the first one issued after respondent No. 2 adopted the policy of Centralised Recruitment. The advertisement dated 19-7-2012, was the first one issued after respondent No. 2 adopted the policy of Centralised Recruitment. It is the case of the petitioners that insofar as the post of Peon is concerned, in which post the petitioners are desirous of being appointed, the upper age-limit prescribed is thirty-five years. Even after availing of the further relaxation of five years, over and above the admissible age relaxation, the petitioners have all crossed the upper age-limit and are unable to apply pursuant to the said advertisement. The recruitment pursuant to the advertisement dated 19-7-2012 has already been completed. Even for the subsequent recruitments the petitioners were unable to apply due to the age bar. The specific claim of the petitioners is that, as it has been directed by respondent No. 2 by the communications dated 5-2-2011 and 8-7-2011, they be given preference and relaxation in age, considering their earlier experience, and their applications ought to be accepted by raising the upper age-limit qua them. 5. Mr.Dipen Desai, learned advocate for the petitioners has made detailed and elaborate submissions, the gist of which is reproduced here in below: (a) That by the communications dated 5-2-2011 and 8-7-2011 respondent No. 2 has directed respondent No. 3 to give preference and age-relaxation to the petitioners, considering their past experience, in the event that they apply pursuant to an advertisement for appointment to Class IV posts in the District Court, Gandhinagar. These communications are based upon a decision of the Standing Committee of respondent No. 2, held on 25-1-2011, which has not been modified or cancelled. Further, there is no order to the effect that this decision should not be given effect to. (b) The representations of the petitioners in this regard have not been turned down. Instead, the representations of other ad-hoc employees seeking absorption have been rejected by respondent No. 2, on the administrative side. Hence, there is no order of rejection in the cases of the petitioners. On the contrary, there are two orders in their favour. (c) The petitioners had made representations to absorb them as Peons on Class-IV posts. It is those representations that were rejected. However, the present petition has not been preferred seeking the relief of absorption. Hence, there is no order of rejection in the cases of the petitioners. On the contrary, there are two orders in their favour. (c) The petitioners had made representations to absorb them as Peons on Class-IV posts. It is those representations that were rejected. However, the present petition has not been preferred seeking the relief of absorption. The prayers made by the petitioners are to give them age-relaxation and preference, so that they can submit their application forms pursuant to any recruitment process that may take place, in keeping with the decisions dated 05.02.2011 and 08.07.2011. (d) The petitioners are seeking implementation of the above decisions of respondent No. 2 on its administrative side. That being so, the legality of the said orders cannot be taken into consideration. In support of this submission, reliance is placed upon a Full Bench decision of this Court Mukesh V. Chavda and another v. State of Gujarat and others, reported in 2013 (1) GLR 265 . 6. The petition has been strongly opposed by Mr. A.S. Supehia, learned advocate for respondents Nos. 2 and 3 by submitting that : (a) The communications dated 05.02.2011 and 08.07.2011, upon which the petitioners place reliance are prior to the adoption of the Centralised Recruitment system that now prevails. Before the policy and Centralised Recruitment was adopted by respondent No. 2, recruitment processes in the Subordinate Courts were conducted by the respective Principal District Judges. It is in that context that these communications were addressed to respondent No. 3 by the Registrar (Administration) of respondent No. 2. After the adoption of the policy of Centralised Recruitment, the respective Principal District Judges have no power to conduct recruitments, therefore, the directions given by the High Court to respondent No. 3 on the administrative side vide these communications would no longer be applicable. (b) The first time that a recruitment process was commenced under the policy of Centralised Recruitment was vide advertisement dated 19-7-2012. Over and above, the age-relaxation already permissible to the respective categories, further age-relaxation of five years was given to all categories. The petitioners do not fall within the prescribed age limit even after availing the further relaxation, as all of them have crossed the upper age-limit. The petitioners want unlimited age relaxation in order to bring themselves under the ambit of the recruitment process, which is not permissible in law. The petitioners do not fall within the prescribed age limit even after availing the further relaxation, as all of them have crossed the upper age-limit. The petitioners want unlimited age relaxation in order to bring themselves under the ambit of the recruitment process, which is not permissible in law. Further age-relaxation as claimed by the petitioners over and above the permissible age limit, has already been provided in the advertisement. (c) Two recruitment processes have already concluded and the petitioners have not applied as they have crossed the upper-age limit. (d) The petitioners do not have any legal right to claim age-relaxation and preference over and above that already provided to them. (e) The petitioners have made representations dated 7-8-2012 and 22-8-2012, for absorption on any available Class-IV post in any District Court in the State, which have been rejected by respondent No. 2 on the administrative side, on 18.12.2012. The petitioners are no longer in service, having been terminated on 30-6-2008. Therefore, the question of their absorption does not arise. Learned counsel for respondents Nos. 2 and 3 has placed reliance upon a judgment of the Supreme Court in the case of Renu and Ors. v. District & Sessions Judge, Tis Hazari and anr. reported in 2014(2) SCALE 262 , wherein the Supreme Court has directed that any vacancy for any post in the High Court or Subordinate Courts should be made in strict compliance of the statutory rules. In case any appointment is made in contravention of the statutory rules, it would be void ab-initio, irrespective of any class of post or the person occupying it. 7. On the strength of the above submissions, it is prayed that the petition be rejected. 8. Mr. D.M. Devnani, learned Assistant Government Pleader submits that he would be adopting the submissions advanced by Mr. A.S. Supehia, learned advocate for respondents Nos. 2 and 3. 9. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition and the documents annexed thereto. 10. From the material on record and the rival submissions one aspect is clear, that is that the petitioners are not eligible to apply for the post of Peon in the Class-IV category, as they have all crossed the prescribed upper age-limit. The age limit for Class-IV posts (as per advertisement dated 19-7-2012) is 25 years, for the general category. 10. From the material on record and the rival submissions one aspect is clear, that is that the petitioners are not eligible to apply for the post of Peon in the Class-IV category, as they have all crossed the prescribed upper age-limit. The age limit for Class-IV posts (as per advertisement dated 19-7-2012) is 25 years, for the general category. In addition to the age-relaxation admissible to certain categories, an additional age-relaxation has been provided by respondent No. 2 in the said advertisement, considering that the Centralised Recruitment process has been undertaken for the first time. The following table, reproduced from Annexure-Y/1 to the affidavit-in-reply filed on behalf of respondent No. 2, would be helpful in illustrating the permissible relaxation and the additional relaxation provided in the advertisement. “Age Relaxation:- The High Court of Gujarat has decided to grant Additional Age Relaxation of 5 (Five) years in the upper age limit for all the candidates over and above age relaxation prescribed. The upper age limit will be relaxed as under: Sr. No. Category Relaxation for reserved categories Additional Relaxation given by the High Court of Gujarat 1 General Nil 5 years 2 SC/ST/SEBC 5 years 5 years 3 Disabled Persons (Differently abled Persons) 10 Years 5 Years 4 Ex-servicemen Actual service rendered or 5 years whichever is less 5 years Note: The Upper Age Limit for any of the categories, shall not exceed 45 years while availing the above mentioned age relaxations, in any case, as on the last date fixed for submitting ‘On-line Application.” 11. Admittedly, none of the petitioners fall within the parameters of the relaxed age-limit, or even the additional relaxation of five years. 12. The petitioners are heavily relying upon the communications dated 5-2-2011 and 8-7-2011 of respondent No. 2, annexed at running page 173 and 174 (Annexure-H Colly). The relevant extracts of those communications are reproduced here in below: “Confidential Date: 5.02.2011 To, The Principal District Judge, Gandhinagar Subject:- Recruitment of Staff in the Subordinate Courts Application of.... 12. The petitioners are heavily relying upon the communications dated 5-2-2011 and 8-7-2011 of respondent No. 2, annexed at running page 173 and 174 (Annexure-H Colly). The relevant extracts of those communications are reproduced here in below: “Confidential Date: 5.02.2011 To, The Principal District Judge, Gandhinagar Subject:- Recruitment of Staff in the Subordinate Courts Application of.... Sir, With reference to the correspondence resting with your Confidential letter No. B/4/18/4 of 2011 dated 06/01/2011, on the subject noted above, I am directed by the Honourable the Chief Justice and Judges to inform you that, taking into consideration the fact that Shri Chandrakant Premshankar Pandya and 13 others have already worked as peons in the District Court, Gandhinagar, on ad-hoc basis, in case they apply in future pursuant to the advertisement for appointment to the Class-IV posts in the District Court, Gandhinagar, their cases be considered and if, so required to relax their age limit and to give them preference in the matter of appointment, taking into consideration their past experience. Yours faithfully, Sd/- Registrar [Administration].” “Confidential Date: 8.07.2011. To, The Principal District Judge, Gandhinagar Subject:- Recruitment to the Post of Peon in the Subordinate Courts Forwarding the application of Mr. Umesh G. Nayak Sir, With reference to the subject noted above I am forwarding herewith the application of Mr.Umesh G. Nayak dated 15.03.2011, and I am directed by the Honourable the Chief Justice to inform you that, taking into consideration the fact that Mr. Umesh G. Nayak has already worked as peon in the District Court, Gandhinagar, on temporary and ad-hoc basis, in case he apply in future pursuant to the advertisement for appointment to the Class-IV posts in the District Court, Gandhinagar, his case be considered and if, so required to relax his age limit and to give him preference in the matter of appointment, taking into consideration his past experience.” Yours faithfully, Sd/- Registrar [Administration].” 13. It is not disputed that these communications have been addressed by the Registrar (Administration) of respondent No. 2 to respondent No. 3, pursuant to several representations made by the petitioners, who had already been terminated from their ad-hoc services on 30.06.2008. It may be relevant to note that at the time of the issuance of these communications, the policy of Centralised Recruitment had not been adopted by respondent No. 2. It may be relevant to note that at the time of the issuance of these communications, the policy of Centralised Recruitment had not been adopted by respondent No. 2. Recruitment processes were being carried out by the respective Principal District Judges of the concerned District. It is in that context that these communications have been addressed and respondent No. 3 has been directed to consider the cases of the petitioners by giving them age-relaxation and preference in the appointment, considering their past experience. These communications cannot be read out of context, as is being done by the petitioners. The directions contained in them would have been applicable in a situation where respondent No. 3 was to conduct the recruitment process. This is no longer the case after the Centralised Recruitment procedure came into effect. The situation envisaged in the said communications no longer exists today. In the considered view of this Court, the reliance placed by the petitioners upon these communications is misplaced as it is no longer in the hands of respondent No.3 to grant preference and age relaxation to the petitioners. The directions in the said communications cannot replace the policy, rules and procedure for recruitment that is now being carried out by the Centralised process. As such. The communications dated 5-2-2011 and 8-7-2011 are no longer relevant under the present policy of Centralised Recruitment following by respondent No. 2. 14. In any case, pursuant to the advertisement dated 19-7-2012, an additional age-relaxation of five years, over and above the admissible age-relaxation for certain categories, has already been provided for all categories. The petitioners still do not fall within the prescribed age-limit, even after availing the additional age-relaxation. In short, they are not eligible to apply under any process of recruitment on account of their being age-barred. 15. It stands to reason that there cannot be an age-relaxation upto eternity. Moreover, there cannot be an age-relaxation de hors the rules, norms and prescribed procedure followed in the Centralised Recruitment system. No class of person can be conferred such a benefit as demanded by the petitioners, who are not eligible to apply under the process of recruitment. Age-relaxation or, for that matter, any other kind of relaxation, is not a matter of right but is a policy decision taken by the employer, who, in this case, is respondent No. 2. No class of person can be conferred such a benefit as demanded by the petitioners, who are not eligible to apply under the process of recruitment. Age-relaxation or, for that matter, any other kind of relaxation, is not a matter of right but is a policy decision taken by the employer, who, in this case, is respondent No. 2. As a policy decision, respondent No. 2 has provided an additional age-relaxation, over and above the permissible relaxation. The communications dated 5-2-2011 and 8-7-2011 cannot be taken to mean that the petitioners, who are not eligible, should be given unlimited age-relaxation or preference over and above the eligible candidates. That would amount to a backdoor entry that is not permissible in law. 16. In Union of India and another v. Arulmozhi Inarasu and others reported in (2011) 7 SCC 397 , the Supreme Court has held as below: “16. We may now advert to the second limb of the question in para 13. The issue need not detain us for long as in our view the factual position as obtaining in the present case does not fit in with the fact situation in Nagendra Chandra. In the instance case, indubitably, the respondents were engaged as part-time contingent casual labourers in the office of the Commissioner of Central Excise for doing all types of work as may be assigned to them by the office. Their part time engagement was need based for which they were to be paid on hourly basis. Though their stand is that many a times they were required to work day and night but it is nowhere stated that they were recruited or ever discharged the duties of a “Sepoy” for which recruitment process was initiated vide public notice dated 14-1-2008 and the Tribunal as also the High Court has decided the appellants to grant relaxation in age-limit over and above what is stipulated in the recruitment rules/advertisement. In view of the stated factual scenario, in our opinion, the engagement of the respondents as casual labourers even for a considerably long duration did not confer any legal right on them for seeking a mandamus for relaxation of age-limit. 17. We have no hesitation in holding that Narendra Chandra case has no application on facts in hand and the impugned direction by the Tribunal, as affirmed by the High Court based on the said decision, was clearly unwarranted.” 17. 17. We have no hesitation in holding that Narendra Chandra case has no application on facts in hand and the impugned direction by the Tribunal, as affirmed by the High Court based on the said decision, was clearly unwarranted.” 17. This Court is, therefore, of the considered view that the petitioners cannot demand an unlimited age-relaxation, over and above that which has already been stipulated in the advertisement. 18. Learned counsel for the petitioners has placed reliance upon a Full Bench judgment of this Court in the case of Mukesh V. Chavda and anr. v. State of Gujarat and Ors(Supra), more particularly, paragraph-8 (2) thereof, where the questions that fell for determination in that case has been delineated. The relevant question, according to the learned advocate for the petitioners was “whether the University, without challenging the order passed by the Chancellor before the appropriate forum, can contend before this Court that the order passed by the Chancellor is otherwise illegal”. Upon the said question, the Full Bench rendered the following decision: “19. On the above question, we are of the view that it is true that a High Court exercising writ-jurisdiction does not pass a direction upon the “State” to do a wrongful act. But the law is equally settled that even if a direction on the basis of the power conferred by the statute is given by one of the statutory authorities upon the other which may not be appropriate in the facts of the case, the latter has a duty to implement such order unless the latter challenges the alleged wrongful direction successfully before the appropriate forum. For instance, if a citizen gets a declaratory decree against a State as regards his legal status and the State does not challenge such declaratory decree before the appellate forum, it cannot subsequently allege that the decree was illegal when the citizen prays for mandamus for enforcing his legal status against the State. In other words, the High Court will un-hesitantly issue mandamus for enforcing the decree the State has suffered as it had attained finality unless it has lost its force for other lawful reason. At that stage, there is, however, no scope of entering into the legality of the decree on the ground that in the facts of the case such decree should not have been passed. At that stage, there is, however, no scope of entering into the legality of the decree on the ground that in the facts of the case such decree should not have been passed. Therefore, once the committee constituted by the Chancellor has held that the respondent no. 4 had no requisite qualification of being appointed as Registrar and the Chancellor had by accepting the finding of the committee directed the Vice-Chancellor to take step for removing the Registrar, it was the duty of the University or the Respondent no. 4 to challenge the decision in accordance with law if they are of the view that the finding recorded by the Committee appointed by the Chancellor was wrong.” 19. While the principles of law enunciated by the Division Bench on the facts of the case before it cannot be disputed, however, they would not be applicable to the factual matrix of the present case; inasmuch as the communications dated 05.02.2011 and 08.07.2011 are not in dispute before this Court. The only question that is in dispute is the applicability of the contents of those communications to the Centralised Recruitment process. The said communications envisage a scenario where the respective Principal District Judges were to undertake the recruitment process. As already stated earlier, that scenario is no longer in existence after coming into effect of the Centralised Recruitment process. The said communications cannot be taken to mean that the prescribed eligibility criteria are to be totally ignored. 20. In this regard, the principles of law enunciated by the Supreme Court in Renu and Ors. v. District & Sessions Judge, Tis Hazari and anr. (Supra) are squarely applicable. The relevant portion of the judgment is quoted herein below: “35. In view of the above, the appeal stands disposed of with the following directions : (i) All High Courts are requested to reexamine the statutory rules dealing with the appointment of staff in the High Court as well as in the subordinate courts and in case any of the rule is not in conformity and consonance with the provisions of Articles 14 and 16 of the Constitution, the same may be modified. (ii) To fill up any vacancy for any post either in the High Court or in courts subordinate to the High Court, in strict compliance of the statutory rules so made. (ii) To fill up any vacancy for any post either in the High Court or in courts subordinate to the High Court, in strict compliance of the statutory rules so made. In case any appointment is made in contravention of the statutory rules, the appointment would be void ab-initio irrespective of any class of the post or the person occupying it. (iii) The post shall be filled up by issuing the advertisement in at least two newspapers and one of which must be in vernacular language having wide circulation in the respective State. In addition thereto, the names may be requisitioned from the local employment exchange and the vacancies may be advertised by other modes also e.g. Employment News, etc. Any vacancy filled up without advertising as prescribed here in above, shall be void ab-initio and would remain unenforceable and in-executable except such appointments which are permissible to be filled up without advertisement, e.g. appointment on compassionate grounds as per the rules applicable. Before any appointment is made, the eligibility as well as suitability of all candidates should be screened/tested while adhering to the reservation policy adopted by the State, etc., if any. (iv) Each High Court may examine and decide within six months from today as to whether it is desirable to have centralised selection of candidates for the courts subordinate to the respective High Court and if it finds it desirable, may formulate the rules to carry out that purpose either for the State or on Zonal or Divisional basis. (v) The High Court concerned or the subordinate court as the case may be, shall undertake the exercise of recruitment on a regular basis at least once a year for existing vacancies or vacancies that are likely to occur within the said period, so that the vacancies are filled up timely, and thereby avoiding any inconvenience or shortage of staff as it will also control the menace of ad-hocism.” (emphasis supplied) 21. As a result of the above discussion, the prayer made by the petitioners cannot be accepted. For the afore-stated reasons, this Court finds no merit in the petition, which deserves to be rejected. It is accordingly, rejected. Rule is discharged. Petition dismissed.