C.P. Madhavananth vs The Chairman and Managing Director, Indian Rare Earths Ltd.

K. Chandru, J.—The Petitioner is the qualified Pharmacist. His family has given land for the purpose of expanding the Mines, operated by the first Respondent Indian Rare Earths Limited, a Central Government owned Company. The Petitioner under the premise that they had lost the land due to acquisition of the land by the Company, claimed the priority in the matter of employment with the first Respondent. On coming to know that the first Respondent has to recruit for the post of Pharmacist, he filed a Writ Petition in W.P. No. 46512 of 2002, seeking for a direction to the first Respondent to appoint him as a Pharmacist in the Company, on the basis of the assurance given by them before the Acquisition Officer, while passing Award No. 9/90-91, dated 11.09.1990.

Pending the Writ Petition, this Court granted interim injunction. Subsequently, on application being filed for Vacating the interim order, this Court, by order dated 22.09.2003, recorded the statement that the Company decided not to fill up the post of Pharmacist as per the advertisement and if and when any other notification is issued, the Petitioner was permitted to workout his remedy. Thus, the application for interim injunction was dismissed. Subsequently, it transpires that the Petitioner withdrew the main Writ Petition in W.P. No. 46512 of 2002, without giving any particular reason. Even during the pendency of the Writ Petition, the stand of the Respondent Company as expressed in para 3 of the counter affidavit, reads as follows:

At the outset, it is respectfully submitted that it is not factually correct to conclude that the Respondent Management had made a promise or commitment to employ all the "displaced person". On the other hand, the Award proceedings in the Land Acquisition matter would themselves reveal that the management had only submitted before the Authority that if persons who belong to the families affected by the Acquisition of their Land have the prescribed qualification and was sponsored by the employment exchange, against the vacancies notified, the company would consider the same. Hence, the Management had only submitted that wherever possible and in case recruitment was required, the management would given some preference to these persons.

Subsequently, the main Writ Petition was dismissed as withdrawn on 20.09.2007. Subsequently, the first Respondent Company had advertised for the post of Pharmacist two in numbers. One for belonging to OBC category and other one was unreserved category. In the advertisement it was indicated that the candidates, who has aspiring to the said post should not exceed 35 years of age, as on 01.05.2009. But, it is also indicated that the said age is relaxable as per the rules applicable in respect of ST/SC, OBC and Ex-service man candidates.

In view of the earlier order passed by this Court, wherein, the undertaking of the Management was recorded, the first Respondent suo-motu intimated the Petitioner by a communication dated 05.02.2009 that they have advertised in the ''Employment News'', for the post of Pharmacist and the same was enclosed for his reference and such an exercise was done pursuant to the orders passed in the earlier Writ Petition. On coming to know of such an advertisement, the Petitioner had sent his Bio-data taking his claim for the post of Pharmacist in the Company. The age of the Petitioner, as per the Curriculum Vitae enclosed was 39 years as on 01.12.2008.

On perusing the application made by the Petitioner, the impugned order came to be passed on 14.08.2009. In the impugned order it was indicated that since the Petitioner had crossed 35 years, as on 01.12.2008 and he belongs to OBC candidates, the age of three years was relaxable but even then, the Petitioner has crossed 35 years was not eligible for the said post. Therefore, the Petitioner is before this Court for the second time, challenging the said impugned order.

While ordering notice to the Respondents, this Court held on 28.10.2009, directing the Respondents to keep one post of Pharmacist vacant, till the disposal of the Writ Petition. Subsequently, the order was modified to state that any appointment is made subject to the result of the Writ Petition.

The 1st Respondent has filed an application for vacating the interim direction in M.P.2 of 2009, together with a supporting counter affidavit dated 07.10.2009. When this application came up, by consent of both sides, the main Writ Petition itself is taken up for hearing.

Heard the argument of Mr. T. Lajapathi Roy, for Mr. A. Arumugam, learned Counsel appearing for the Petitioner, and Mr. Sanjay Mohan, for M/s.S. Ramasubramaniam Associates, learned Counsel appearing for the Respondents.

The short question that arises for consideration is whether the Petitioner, as a matter of right, is entitled to get appointed for the post of Pharmacist or alternatively entitled to be considered for the post of Pharmacist, notwithstanding the age qualification prescribed in the impugned communication.

Mr. T. Lajapathi Roy, learned Counsel for the Petitioner contended that his family has given larger extent of land and therefore, the promise held out during the award proceedings should not become a mere paper assurance, when there was a real possibility of appointing a Pharmacist, the Petitioner has rushed to this Court and secured the guarantee and for the reasons best known them, the 1st Respondent Company did not proceed with the selection and stated before this Court that for the present, they are not filling up the post. It is because of the assurance given, the earlier Writ Petition was withdrawn. But, however, now when the actual vacancy arose and the Petitioner is qualified to get considered for the said post, they cannot reject the candidature of the Petitioner solely on the ground of lack of age qualification. In this context, the learned Counsel for the Petitioner relied upon a judgment in Lakshmi Prabha v. Government of Tamil Nadu and Ors., reported in 2008 (4) MLJ 333 more particularly, a reference was made to the following passage found in paragraph No. 41, which is reads as follows:

...The question of over age cannot be put against the land oustees because the BHEL, never attempted to provide employment at an earlier point of time and allowed the matters to drift for more than two decades....

and therefore he states that the Petitioner cannot be non-suited on the ground that he has crossed the maximum age for the said posts. It is not that all along they never recruited a Pharmacist and only in 2009 they gone for a recruitment, he should not be non-suited only on that ground.

Per contra, Mr. Sanjay Mohan, the learned Counsel appearing for the Respondents referred to the averment made in para 14 of the counter, wherein, they are entitled to prescribe the age qualification for entering into the post and in the case of the priority candidates, a limited relaxation is given and when the Petitioner had crossed the age, there is no obligation for them to consider the over age candidates.

It is also submitted that there was a settlement u/s 12(3) of the Industrial Dispute Act, dated 06.03.1989 provides for qualification for direct recruitment wherein, the maximum age is agreed to between the two parties viz., the first Respondent Corporation and the Union. It is also further submitted that there was no prior commitment made to the Petitioner for his appointment and the question of consideration was arise only a priority candidates fulfilled all the norms prescribed.

13.A perusal of the earlier proceedings shows that it is a definite stand of the Respondent Company that while they have not aware so in considering the candidates under the priority category provided they have the qualifications, but, there was no opportunity to fill up the post of Pharmacist and it cannot be said that the earlier decision, not to fill up the post, was a deliberate attempt made by the Respondents to accept the claim of the Petitioner. Even that is not the submission of Mr. T. Lajapathi Roy learned Counsel appearing for the Petitioner, even in case of priority candidates, unless the candidate is qualified in respect of the post for which advertised, the mere status in the priority list will not enure him the benefit of getting the employment in question. Further, earlier this Court only directed the Petitioner to work out his remedy, as and when notification is issued for the said post. Even without the Petitioner asking for it, the first Respondent Company has notified the vacancy to the Petitioner. It only shows that they are willing to consider the Petitioner''s claims, if his claim is otherwise in order. Therefore, it cannot be said there was any lack of bono-fiede on the part of the Respondent Company.

The last question is whether under the facts and circumstances of the case, the Petitioner is entitled to for any consideration of relaxation in terms of age, especially, when both statement and the maximum age prescribed under the recruitment Rules of the Company. The Supreme Court in Tirumala Tirupati Devasthanams Vs. K. Jotheeswara Pillai (D) by LRs. and Others, has held that the Court cannot give any such direction dehorse the recruitment Rules in respect of the maximum age prescribed by the employer. In this context, it is necessary to refer to para 9 & 10, which is as follows:

The learned Single Judge has also issued a writ of mandamus directing the Appellant to consider the case of Writ Petitioner 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 Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh where this Court observed as under: SCC p.152, para15

(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.

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.

In the light of the above, there is no case made out. Hence, the Writ Petition stands dismissed. No costs. Consequently, the connected miscellaneous petitions stand closed.