P. N. Soman Nedumpura v. Kerala Kalamandalam Deemed University

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 11TH DAY OF NOVEMBER 2014/20TH KARTHIKA, 1936 WP(C).No. 14610 of 2010 (A) -------------------------------------- PETITIONER: ------------------ P.N.SOMAN NEDUMPURA.P.O., VALLATHOLE NAGAR, THRISSUR-680 017. BY ADVS.SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON RESPONDENT: ------------------- KERALA KALAMANDALAM DEEMED UNIVERSITY UNIVERSITY FOR ART AND CULTURE, VALLATHOLE NAGAR CHERUTHURUTHY.P.O., THIRUSSUR-671531, REP. BY ITS REGISTRAR. R,R1 BY ADV. SRI.S.P.ARAVINDAKSHANPILLAY,KER.KALAMAN R,R1 BY ADV. SRI.S.SUBHASH CHAND,SC,KALAMANDALAM UTY R BY SRI.S.P.ARAVINDRAKSHAN PILLAI, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14610 of 2010 (A) ## APPENDIX ## PETITIONER'S EXHIBITS: Ext.P1: True copy of the certificate dated 9.11.1987. Ext.P2: True copy of certificates dated 9.11.1989. Ext.P3: True copy of his experience certificate dated 5.5.2010. Ext.P4: True copy of his experience certificate dated 21.12.2009. Ext.P5: True copy of notification published in Desabhimani Daily dated 16.4.2010. Ext.P6: True copy of relevant pages of his SSLC book. Ext.P7: True copy of certificate issued by the respondent University dated 5.5.2010. Ext.P8: True copy of the experience certificate issued by the Registrar of the University dated 22.09.2014. Ext.P9: True copy of the relevant pages of notification dated 5.9.2014 issued by the respondent University. // True copy // P.A. to Judge ## **CR** ## **DAMA SESHADRI NAIDU, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **W.P.(C)No.14610 OF 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of November, 2014 ## **JUDGMENT** The petitioner, working as 2[nd] Grade Instructor in the respondent University on daily wage basis, has filed the writ petition complaining against the authorities' not providing any relaxation of upper age limit in Ext.P5 notification for the post of Second Grade Instructor in Thimila (percussion). 2. Briefly stated, as could be seen from Ext.P8, the experience certificate granted by the respondent University, the petitioner has been working as an Instructor intermittently on daily wage basis. Later the University, desirous of having permanent recruitment to certain posts, including that of Instructor Grade II, issued Ext.P5 notification, fixing an upper age limit of 39 years as on 1.1.2010 uniformly for all the posts notified. 3. Indisputably the petitioner by the date of Ext.P5 notification was 42 years old, thus being beyond the zone of consideration in terms of upper age. The learned counsel for the petitioner submits W.P.(C)No.14610 OF 2010 : 2 : that seeking age relaxation the petitioner submitted a representation on 16.9.2014 but so far the respondent University has not considered it. The fact remains that the said alleged representation has not been filed before the Court. 4. As things have turned out, no recruitment has actually taken place pursuant to Ext.P5 notification. One of the reasons assigned for this is that by the time Ext.P5 notification was issued there had been no service regulations governing the process of recruitment. Accordingly, the respondent University seems to have framed comprehensive regulations on 3.9.2014 and later issued Ext.P9 notification on 5.9.2014. A perusal of Ext.P9 makes it manifestly clear that the age relaxation has been provided only to Scheduled Castes/Scheduled Tribes and Other Eligible Communities. In other words, age relaxation has been provided on community basis rather than on the basis of past experience, if any, in the department. 5. The learned Standing Counsel for the Corporation has contended that the respondent University has adopted a uniform policy and _ipso facto_ it has not discriminated against any prospective applicant including the petitioner. He has further contended that the conditions W.P.(C)No.14610 OF 2010 : 3 : of the recruitment are essentially a matter of policy and unless there is any violation thereof, this Court would not be inclined to interfere with the discretion of the employer in recruiting the most eligible persons. Accordingly, he has urged this Court to dismiss the writ petition. In support of his submissions, the learned counsel has placed reliance on _**Union of India and another v. Arulmozhi Iniarasu and Others (2011)**_ _**7 SCC 397; Union of India and Others v. Shivbachan Rai (2001 (9) SCC 356)**_ and _**Tirumala Tirupathi Devashanams v. K.Jotheeswara Pillai (D) by L.Rs. And Others (AIR 2007 SC 1771)**_ . 6. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent University, apart from perusing the record. 7. At the outset, it is to be observed that the facts are not in dispute. Indeed, the petitioner has worked in the respondent University, in terms of Ext.P8, as an Instructor on daily basis. Though both the notifications, namely, Exts.P5 and P9, prescribed the upper age limit of 39 years for the open category candidates, admittedly the petitioner was 42 years old by the time of Ext.P5 notification and 46 years by the time of Ext.P9 notification. W.P.(C)No.14610 OF 2010 : 4 : 8. No recruitment took place consequent upon Ext.P5; recruitment is said to be underway pursuant to Ext.P9. In both instances, no age relaxation has been provided to in-service candidates, even if the petitioner were to be treated as an in-service candidate. 9. There is force in the contention of the learned Standing Counsel for the respondents that so long as the employer abides by the recruitment regulations and does not discriminate against similarly placed persons, it does not call for any judicial intervention on the part of this Court, more particularly by exercising its extraordinary jurisdiction under Article 226 of the Constitution of India. 10. In _**Tirumala Tirupathi Devashanams v. K.Jotheeswara Pillai (D) by L.Rs. And Others (AIR 2007 SC 1771),**_ the Honourable Supreme Court, taking note of the facts that the employer therein provided certain concession to some people on earlier occasions, has observed that even if some concession had been shown to some employees in the past, it would not confer any right upon others seeking employment in future to claim exemption from eligibility criterion as a matter of right. W.P.(C)No.14610 OF 2010 : 5 : ## 11. Further their Lordships have quoted with approval an observation of another bench of the Supreme Court in _**The Bihar Eastern Gangetic Fishermen Co-operative Society Limited v. Sipahi Singh, AIR 1997 SC 2149,**_ which is as follows: _“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 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 a legal right under the statute to enforce its performance.”_ ## 12. In _**Union of India and another v. Arulmozhi Iniarasu and**_ _**Others (2011) 7 SCC 397**_ , after elaborate reference to various precedents holding the field by then, the Supreme Court has held that the engagement of a person as casual labourer even for considerable long duration did not confer any legal right on him for seeking a mandamus for relaxation of age limit. ## 13. In _**Union of India and Others v. Shivbachan Rai (2001 (9)**_ _**SCC 356),**_ the Honourable Supreme Court has observed that in the W.P.(C)No.14610 OF 2010 : 6 : absence of any challenge laid against the recruitment regulations, insisting on having age relaxation cannot be sustained. 14. In my considered opinion, the issue as to the age relaxation remains judicially well established without calling for further cogitation. It may have to be repeated that the respondent University has followed a uniform policy and has not discriminated against any particular claimant. So long as the respondent University has followed the recruitment regulations and has not offended any principles of fairness, including any putative fundamental rights of the petitioner, this Court does not see any reason to interfere with the process of recruitment which is said to be underway pursuant to Ext.P9 order. In the facts and circumstances, the writ petition has been dismissed. No orders as to cost. **DAMA SESHADRI NAIDU, JUDGE** _jes_