State of Kerala v. Suresh and Others (WA No.1748 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 26TH DAY OF SEPTEMBER 2019 / 4TH ASWINA, 1941** **WA.No.1748 OF 2019** **AGAINST THE JUDGMENT IN WP(C) NO.35597/2017(Y) OF THE HIGH COURT OF KERALA DATED 07.03.2019** ## **APPELLANTS/RESPONDENTS 1 TO 3:** **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001.** - **3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOZHIKODE, OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOZHIKODE-673 001.** **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** ## **RESPONDENTS/PETITIONER & RESPONDENTS 4 & 5:** - **1 SURESH, S/O. KUTTAPPAN PILLAI, OFFICE ATTENDANT, N.S.S COLLEGE, MANJERI, RESIDING AT PADINJARE THALIYIL, VAZHAPPALLY P.O., CHANGANASSERY, KOTTAYAM-686 103.** - **2 THE SECRETARY N.S.S. COLLEGES CENTRAL COMMITTEE, N.S.S. HEAD OFFICE, CHANGANASSERY-686 102.** - **3 THE PRINCIPAL N.S.S. COLLEGE, MANJERI, MALAPPURAM-676 121. R1 BY ADV. S.MUHAMMED HANEEFF(B/O) R2 BY ADV. SRI.R.T.PRADEEP R2 BY ADV. SMT.M.BINDUDAS R2 BY ADV. SRI.K.C.HARISH SR.GP SRI.A.J.VARGHESE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1748 OF 2019 2 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The appellant is the State, challenging the judgment of the learned Single Judge. The learned Single Judge exercising his discretionary powers under Article 226 of the Constitution of India directed the appointment of the writ petitioner/1[st] respondent to be approved. The State is in appeal pointing out that there is a statutory violation.** **2. On facts, it has to be stated that there was a notification at Ext.P1, dated 22.06.2011, inviting applications for selection to the post of Peon under the 3[rd] respondent College. The writ petitioner was one among the persons who applied. The writ petitioner was selected. However, on seeking approval for appointment, the Deputy Director of Collegiate Education issued Ext.P4 letter seeking explanation from respondents 4 and 5 as to why the petitioner, who crossed the age of 35 years, as on the year of notification, was appointed** WA.No.1748 OF 2019 3 **to the post. Admittedly, the writ petitioner was born on 16.11.1975. A clarification was issued that the State Government had subsequently enhanced the maximum age to 36. Approval was granted, which later was cancelled.** **3. Statute 45 of the Calicut University [Conditions of Service of Teachers and Members of Non-teaching Staff], First Statutes, 1979, prescribes age for appointment for the purpose of appointment of members of non-teaching staff by direct recruitment, as the minimum and maximum age followed for similar categories of posts in Government service. In Government service, the age prescribed was between 19 and 35. As per the Public Service (Date For Determination of Age for Eligibility for Appointment) Rules, 1977, the age has to be determined as on the first of January of the year in which the notification is made. Hence the question is whether the petitioner crossed 35 years as on 01.01.2011, since the notification was** WA.No.1748 OF 2019 4 **in the year 2011** **4. The petitioner though not approved initially, there was an explanation given insofar as the Government having extended the age to 36 years in the year 2012. The selection itself occurred in the year 2014. On the narration of facts it has to be further stated that the Deputy Director had considered the explanation and approved the petitioner's appointment by Ext.P6 dated 04.03.2017. However later by Ext.P9 order dated 24.03.2017, the same was cancelled.** **5. The learned Government Pleader submits that the subsequent enhancement of age cannot apply to the writ petitioner, since the determination of age has to be on the basis of the year of notification, that too on the first of January of that particular year. The writ petitioner crossed 35 years age as on 01.01.2011 since his date of birth is 16.11.1975 and he attained the age of 35 as on** WA.No.1748 OF 2019 5 **15.11.2010. The Government Order extending the age to 36 also came only on 01.04.2012 and this cannot have any application to the writ petitioner, who crossed 36 years as on 15.11.2011.** **6. The learned Government Pleader also relies on two decisions of the Hon'ble Supreme Court in** _**Prabhu Dayal Sesma v. State of Rajasthan and Another [(1986) 4 SCC 50] and Achhaibar Maurya v. State of Uttar Pradesh and Others [(2008) 2 SCC 639]**_ **and the decision of this Court in** _**Evujin N.J. v. District Collector, Malappuram and Others [2019 (1) KHC 544 [DB]**_ **to contend that the petitioner has crossed the age of 35 and it is the date of acquisition of such age, which has to be considered. It is also pointed out that the notification as can be seen from Ext.P1 specifically provided for :”age applicable for recruitment in Government Colleges” as per Ext.P1. Hence there is no ambiguity in the notification and the petitioner cannot be considered for appointment to the post notified in the year** WA.No.1748 OF 2019 6 **2011.** **7. There was also a question raised by the respondent as to whether there was any provision for approval of an appointment of a non-teaching staff in the aided Colleges. The approval for appointment of the teaching staff is specifically provided in the First Statutes, but not in the case of nonteaching staff. The learned Government Pleader pointed out that there is a direct payment agreement entered into with the aided Colleges and though the original agreement is not available, an order of the Government, GO(MS) No.22/74/Edn. dated 08.02.01997, is produced across the Bar, wherein it is specifically provided that “Where appointments have been made by the Managements in accordance with the new pattern introduced with effect from 9[th] February, 1970, such appointments will be approved for the purpose of direct payment provided the persons concerned are qualified and the appointment is in accordance with the accepted method of** WA.No.1748 OF 2019 7 **appointment” [sic]. There is also a further order numbered as GO(MS) No.133/84/H.Edn. Dated** **14.06.1984, wherein the Government has delegated the power of approval of appointment and promotion of non-teaching staff to the Deputy Director of Collegiate Education.** **8. We have to reject the contention that there is no approval required as far as the nonteaching staff are concerned. We also accept the submission of the learned Government Pleader that as on 01.01.2011 the writ petitioner has crossed the age of 35. The further notification extending the age would not be applicable even if the selection was conducted in 2014, when the issuance of notification for selection is in 2011.** **9. Be that as it may, we cannot ignore the fact that Ext.P1 notification did not clearly specify the age limit. We take into account the fact that the age was indicated to be applicable, as** WA.No.1748 OF 2019 8 **applicable for recruitment in Government College. Admittedly the selection was conducted with a Government nominee and no objection was raised then. The petitioner applied under the notification, which did not specifically prescribe a maximum age limit and after a due selection carried out in accordance with the Act and Statutes, the petitioner was appointed. The petitioner also had been approved, which later was canceled. Even going by the date of birth, the petitioner had just crossed the age of 35 and had not attained the age of 36 as on 01.01.2011. It has to be noticed that neither the Selection Committee consisting of a Government nominee, nor the Government at the stage of approval, noticed that the writ petitioner was not entitled to be considered for appointment for having crossed the age limit. The writ petitioner was appointed, approved and continued when a subsequent order was passed canceling the earlier approval. We do not think that the writ petitioner can be prejudiced for** WA.No.1748 OF 2019 9 **the consistent default of the Government, who, through its Government nominee, did not notice the age limit having been crossed at the time of selection and ignored it when the appointment was first proffered for approval.** **10. We are of the opinion that sitting in appeal we cannot interfere with the judgment of the learned Single Judge in which the learned Single Judge has exercised discretion, especially when it cannot be said to be a totally unreasonable exercise of discretion. Further, the person, who is put to prejudice, is the writ petitioner, who was never apprised of the upper-age limit when he applied for the selection. There is also no other claimant to the post in which the writ petitioner continued for long.** **11. In the totality of the circumstances, we are of the opinion that there can be no interference caused to the judgment of the learned** WA.No.1748 OF 2019 10 **Single Judge. There is also no challenge raised by third parties and the writ petitioner had continued for five years in the post. The writ appeal is hence dismissed. There is no order as to costs.** **12. The appointment of the writ petitioner shall be treated as approved and we set aside Ext.P9 order. The service benefits shall be paid to the petitioner at any rate within a period of three months from the date of receipt of the certified copy of this judgment. We also make it clear that our judgment is only on the facts of the present case and cannot be a precedent. No order on costs.** **Sd/-** ## **K. VINOD CHANDRAN, JUDGE** ## **Sd/-** ## **V.G. ARUN, JUDGE** **//True Copy//** **P.A. To Judge** **SB/sp/27/09/19**