Sreekumar G. vs Guruvayur Devaswom Board and Others

K. Surendra Mohan, J.—The question that arises for consideration in this Writ Petition is whether the age relaxation granted by the Government to a candidate can apply to the age requirement stipulated by the Calicut University First Statutes. The short facts of the case are summarised as follows. The petitioner along with 12 others were appointed as Last Grade Servants in the Sree Krishna College, Guruvayur, under the 1st respondent, Devaswom Board. The appointment was made pursuant to a decision of the 1st respondent dated 20.11.1998. Thereafter, applications were invited and an interview was conducted on 02.06.2000. Accordingly, the petitioner and others who were appointed, joined service and worked in the College. While so, the Managing Committee of the 1st respondent decided to regularise the services of the petitioner and others. However, according to the petitioner, issue of orders in this regard was delayed. The term of the Managing Committee then in office had also expired. Therefore, the petitioner and others approached this Court by filing O.P. No. 14594 of 2002, seeking regularisation in service. As per judgment dated 09.03.2004, this Court directed the Managing Committee of the 1st respondent to take a decision in the matter. Pursuant to the said judgment of this Court, the Managing Committee took a decision on 13.03.2004 and terminated the services of the petitioner and others. Thereafter, finding that vacancies were still existing, the petitioner submitted an application to the 1st respondent seeking appointment to one of the vacant posts. The said application was rejected by Ext. P1. But, the petitioner was informed that he could submit a fresh application when the vacancies are notified for appointment.

In the above circumstances, as per Ext. P2 notification dated 10.02.2012, the 1st respondent invited applications for appointment to the posts of Peons as well as Lab Assistants. The petitioner possesses all the qualifications stipulated by Ext. P2. The petitioner has also passed the Attender test conducted by the Public Service Commission, as evidenced from Ext. P3. Therefore, the petitioner submitted Ext. P4 application dated 23.02.2012 to the post of Lab Assistant. However, the petitioner was not given any further information regarding the fate of his application. Therefore, he submitted an application under the Right to Information Act, 2005. Thereupon, the petitioner was informed by Ext. P6 proceedings dated 12.11.2012 that his application had been rejected for the reason that he was over aged. The petitioner therefore approached the Government for a relaxation in the age limit stipulated. As per Ext. P7, the petitioner has been granted age relaxation, as a special case, permitting him to attend the interview.

The interview of candidates for selection to the notified posts was conducted on 16.01.2013. The above Writ Petition was filed only on 16.01.2013 and on 17.01.2013, this Court has passed an interim order to the effect that any appointment made would be subject to the result of this Writ Petition. The petitioner has in this Writ Petition sought for a direction to interview him and to appoint him to the post of Lab Assistant in the Sree Krishna College, Guruvayur. According to the petitioner, out of the candidates who had submitted their applications, apart from the petitioner and another person, none of the other candidates had passed the Attender test conducted by the Public Service Commission. Therefore, according to the petitioner, on the strength of the age relaxation granted by the Government as per Ext. P7, he is entitled to be appointed.

The contentions of the petitioner are refuted by respondents 1 and 2. A counter affidavit has been filed on behalf of the said respondents. The case of the said respondents is that appointments to the posts of Non Teaching Staff in Aided and Affiliated Colleges under the Calicut University are governed and regulated by the provisions of the Calicut University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes, 1979 (hereinafter referred to as ''the First Statutes'' for short). The First Statutes have been framed by the Government in exercise of the powers conferred by Section 82 of the Calicut University Act, 1975. Statute 45 of the First Statutes provides that the age limit for appointment of members of Non-teaching Staff by direct recruitment shall be the same as that applicable to the appointments to similar posts in the Government service. The post of Lab Assistants in Government colleges is governed by the provisions contained in the Special Rules for the Kerala Collegiate Education Subordinate Service, 1967 (hereinafter referred to as ''the Special Rules'' for short). Rule 5 of the Special Rules stipulates the age limit, which is fixed at the maximum of 36. The petitioner has crossed the age of 38 years at the time of submitting Ext. P4 application. Though Ext. P7 was produced by the petitioner along with Ext. R1(a) representation dated 07.01.2013, the Management considered the same and rejected it on the same day itself. It is contended that in similar circumstances, an application submitted by one Smt. Sindhu was also rejected. Therefore, the petitioner not being qualified under the First Statutes, he is not entitled to any of the reliefs sought for in the Writ Petition. It is also stated in the counter affidavit that in view of the interim order of this Court, one post of Peon/Lab Assistant is kept vacant, without being filled up.

According to Sri V.G. Arun, who appears for the petitioner, what is stated in Ext. P2 Notification is only that the age limit shall be subject to the Government Rules/laws. As per Rule 5 of the Special Rules, the upper age limit for appointment to the post of Lab Assistants is 36 years. Rule 39 of the Kerala State and Subordinate Service Rules, confers power on the Government to relax the age limit. As per Ext. P7, the Government has relaxed the upper age limit in the case of the petitioner. The judgment of a Division Bench of this Court is also relied upon in support of this contention.

According to Sri P. Gopal, who appears for respondents 1 and 2, the appointment as well as the service conditions of Teachers and other employees of Private Colleges are governed by Section 60 of the Calicut University Act. As per the said Section, the provisions of the First Statutes are made applicable to the filling up of the vacancies. Statute 45 stipulates the age limit that is applicable to appointments to similar posts in the Government service. Statute 66 stipulates that appointments shall be made in accordance with the Special Rules. Statute 68 makes the provisions of Kerala Service Rules applicable. The provisions of Kerala State Subordinate Service Rules not having been so made applicable, it is contended that the provisions of the said Rules have no application to the selection in the present case. The maximum age limit having been fixed at 36 by the Special Rules, it is contended that, the Government action in relaxing the same by the issue of Ext. P7 is without any authority and therefore, the petitioner was not granted the benefit thereof. The learned counsel places reliance on a decision of the Apex Court in Jamaluddin Vs. State of Jammu and Kashmir and Others, to contend that without amending the Special Rules, the relief sought for by the petitioner could not be granted.

I have heard the learned counsel appearing for the contesting parties at length. It is agreed by the learned counsel on both sides that the Writ Petition itself can be disposed of. I have been taken through the provisions of law applicable and the decision relied upon. I have considered the rival contentions anxiously.

Applications to the post of Lab Assistants have been invited by issuing Ext. P2 Notification. In Ext. P2 where the stipulation regarding the age is referred to, what is stated is, ''subject to rules/law of Government'' (translated from Malayalam). It is clear from the above that the intention was to adopt the stipulation of the Government applicable to appointments to similar posts. The learned counsel on both sides admit that Rule 5 of the Special Rules are applicable for appointment to the notified post. Rule 5 of the Special Rules reads as follows:

Qualification regarding age:--No person shall be eligible for appointment by direct recruitment to any of the categories if he has not completed 22 years of age or if he has completed 35 years of age on the first day of January of the year in which the applications for appointment are invited subject to the usual relaxation in upper age limit admissible to candidates belonging to Scheduled Caste/Scheduled Tribes and other Backward Classes.

As per Ext. P7, the Government has granted age relaxation to the petitioner. Ext. P7 reads as follows:

I am to invite your attention to the reference cited and to inform you that Sri. Sreekumar. G, Elavum Mootill Veedu, Mukathala P.O., Kollam has requested Government to grant him relaxation in upper age limit to attend the interview for the staff selection at Sreekrishna College Guruvayoor on humanitarian ground.

Government examined the matter in detail in consultation with The Director of Collegiate Education and hereby inform that Sri Sreekumar G., Elavum Mootill Veedu, Thrikkovilavattom, Mukathala PO, Kollam is granted relaxation in upper age limit for attending the interview for the selection of Lab Attendant at Sreekrishna College Guruvayoor as a special case taking into consideration the facts stated in his representation and in the letter of the Administrator, Guruvayoor Devaswom Managing Committee referred above.

This shall not be a precedent in any future case.

A perusal of the above order does not refer to any specific provision in exercise of which the same is purported to have been issued. But, it cannot be disputed that the Government have the power to grant such a relaxation. As already noticed above, Ext. P2 Notification itself has intimated the candidates that the age restriction would depend on the Government norms regarding the same. As per Ext. P7, the Government norms containing stipulation regarding the age has been relaxed specifically in the case of the petitioner, taking into account the facts and circumstances narrated in his representation referred to therein.

It is worthwhile to take note of the fact that the petitioner had been appointed temporarily in the year 2000 and he had been terminated along with others for the reason that his temporary appointment had not been approved. As per Ext. P1, the 1st respondent had informed the petitioner that he could apply as and when a Notification for filling up the existing vacancies was issued. It was probably taking into account the above circumstances that Ext. P7 was issued. It is not necessary for me to adjudicate the correctness of Ext. P7 for the reason that the same is not under challenge before me. Even respondents 1 and 2 have no dispute regarding Ext. P7.

According to the learned counsel for respondents 1 and 2, the selection in question is governed by the University First Statutes and since the provisions thereof have not been amended permitting relaxation of the age limit, Ext. P7 cannot have the effect of relaxing the said stipulation. The learned counsel also places reliance on the decision of the Apex court in Jamaluddin v. State of Jammu and Kashmir (supra). The said case related to an appointment claimed by a member of a Scheduled Tribe, who is an ad hoc Munsiff in the Jammu and Kashmir judicial service. In the said case, the upper age limit stipulated was 35 years. The petitioner therein had crossed 37 years at the time of submitting his application. It was contended that 8% of the vacancies in the service were reserved for candidates belonging to Scheduled Castes/Scheduled Tribes by the Jammu and Kashmir Scheduled Castes and Backward Classes Reservation Rules, 1970. The Rules specifically stated that they were applicable to all services under the Government except judicial services. The question was, no relaxation in age for Scheduled Castes/Scheduled Tribes having been stipulated by the Notification, whether a relaxation could be granted in view of the provisions of the Jammu and Kashmir Scheduled Castes and Backward Classes Reservation Rules, 1970. The Honourable Supreme Court has after considering the question held that the Rules applicable to Scheduled Castes and Scheduled Tribes cannot operate to grant the relaxation of age that is not available under the Jammu and Kashmir Civil Services (Judicial) Recruitment Rules, 1967. Such relaxation would have to be introduced by a separate amendment. However, the fact situation in the present case is totally different.

In the present case, the Notification Ext. P2 states that the age restriction would be subject to the Rules/law of the Government. The Government have granted the necessary relaxation as evident from Ext. P7. A similar situation has been considered by a Division Bench of this Court in Kerala Public Service Commission Vs. Tessymole Sebastian and Another . Considering a similar Government Order granting relaxation, this Court held that the Government was competent to issue such orders. It has been held that Rule 39 of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as ''KS and SSR'' for short) confers power on the Government in appropriate cases to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable. Though the learned counsel for respondents 1 and 2 has contended that the provisions of KS and SSR have no application, the power of the Government to stipulate the age limit cannot be disputed for the reason that what is stated in Ext. P2 notification is that age restriction would be regulated by the Government norms. The Government that has the power to fix the norms also is competent to relax the same in appropriate cases. In the present case, the Government have relaxed the age limit in the case of the petitioner. As already noticed, Ext. P7 has not been challenged in any Forum by the parties. The reasons stated for not abiding by Ext. P7 is that, the same was objected to by the management. No such order of rejection is produced in these proceedings. Nor has any such order been communicated to the petitioner. It is also not clear, under what provision of law the Management is empowered to reject Ext. P7. There is also no indication as to what are the grounds on which such rejection was made. Therefore, it has to be held that the impugned action of the respondents in not granting the benefit of age relaxation to the petitioner is without any justification whatsoever.

For the above reasons, this Writ Petition is allowed. Respondents 1 and 2 are directed to grant the benefit of Ext. P7 age relaxation granted by the Government, to the petitioner, to interview him and to appoint him, if he satisfies all the other stipulations.