Telangana High Court
M.Vijayakumar, Ano. vs C M.D, Ecil, Hyd. Ano. on 25 April, 2023
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 2318 of 2012
Between:
M. Vijayakumar & another
... Petitioners
And
Electronics Corporation India Limited
& another
... Respondents
JUDGMENT PRONOUNCED ON: 25.04.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
__________________
SUREPALLI NANDA, J
WP_2318_2012
2 SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 2318 of 2012
% 25.04.2023
Between:
# M. Vijayakumar & another
..... Petitioners
And
$ Electronics Corporation India Limited
& another
.....Respondents
< Gist:
> Head Note:
! Senior Counsel for the Petitioners: Sri G.Ravi Mohan
^ Standing Counsel for Respondents : Sri D.Ravishankar Rao
? Cases Referred:
(2011) 7 SCC 397
WP_2318_2012
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 2318 of 2012
ORDER:
Heard Sri P.V.Krishnaiah, learned counsel for the
petitioners and Sri D.Ravishankar Rao, learned Standing
Counsel for the respondents.
2. The petitioner filed this writ petition to issue a writ,
order or direction more particularly one in the nature of Writ
of Mandamus, declaring the action of the respondents in not
granting age relaxation of contract employees, who have
completed their tenure by June, 2011 and not considering
them for the posts reserved for SC/ST as per the Notification
No.ECIL PG(r) 2012, dated 20.12.2021, as illegal, arbitrary
and violative of Articles 14, 16, 19(1)(g) of the Constitution of
India and consequently direct the respondents to receive the
petitioners' applications for the post of Fitter and Turner as
per the Notification ECIL PG (r) 2012, dated 2012.01.21 by
relaxing the petitioners' age as they are contract employees
and permit them to participate in the recruitments processes
by appearing for the written test and interview.
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3. The case of the petitioners, in brief, is as follows:
a) The petitioners passed ITI O trade as fitter and welder
respectively and they registered their names in the
employment exchange Ranga Reddy District and they belong
to SC community.
b) In the year September, 2007, the respondents issued
notification for filling the vacancies of fitter and welder post
on contract employment on tenure basis. The employment
exchange sponsored the names of the petitioners along with
others.
c) Being the successful candidates, the petitioners were
offered employment in their respective trades on contract
basis for a period of three years i.e. from 13.09.2007 to
13.09.2010 and extended their tenure till 30.06.2011.
d) The petitioners along with other similarly placed have
filed writ petition for regularization of services on the ground
that there are permanent vacancies, but the respondents
started engaging new set of contract of labour through
recruiting agency. The petitioners requested the respondents
to follow the procedure as per principles of 24 II of the
Industrial Disputes Act, but the said request was rejected and
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issued notification dated 21.02.2012 for recruitment of
permanent posts of Fitters-2, Welders-2, and turner - 1.
e) The petitioners name was not sponsored by the
employment exchange as their names were removed from the
employment exchange and that 30 years age was prescribed
for sponsoring the candidates.
f) The respondents permitted the internal candidate, who
is age barred, by relaxing their age. In fact no age was
mentioned and those posts are reserved for SC/ST
candidates.
g) It is settled principle of law that once a candidate is
engaged in public employment with in the age prescribed as
casual or contract employee or temporary in the respondent
company i.e. with in the prescribed limit of age and worked in
the status of casual or temporary contract basis such
candidates age has to be relaxed for the purpose of providing
permanent employment. The petitioners case also placed on
similar facts and circumstances and hence, their applications
are genuine and reasonable one. Hence, this writ petition is
filed.
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4. The counter affidavit filed on behalf of the
respondents is as follows:
a) The applicants through their Trade Union namely ECIL
Staff & Workers Union, moved Conciliation machinery
available under Industrial Disputes Act, 1947 before the
Assistant Labour Commissioner (Central), ATI Campus,
Vidyanagar, Hyderabad vide Union's representation dated
20.06.2011. The said authority convened a meeting on
21.06.2011 vide notice dated 20.06.2011 and after due
deliberations adjourned to 27.06.2011, 18.07.2011 and
07.02.2012 and subsequently, the matter was concluded
without any decision on the parties, on 17.02.2012, as per
the provisions of Industrial Disputes Act, 1947. The
petitioners invoked the conciliation machinery, suppressing
the said fact, raised various misleading contentions.
Therefore, the petitioners are not entitled to agitate on the
very same issue paralelly before two different fora.
b) The petitioners have effective alternative remedy and
already invoked the same, the present writ petition is not
maintainable.
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c) The activity and functioning of ECIL is purely
commercial and ECIL is not carrying out any public function
nor ECIL is obligated to carry out any public duties. The issue
involved in the present case pertains to pure contractual
terms of service and the petitioners are not alleging violation
of any statutory provisions or violation of any public liability
nor even any contractual term or condition.
d) The very advertisement No.4/2007 itself made it clear
that the offer was being made purely on contract for a period
of three years and that the petitioners accepted the same and
joined. The jobs were not perennial nature and the
requirements were purely for the projects. The petitioners and
others were engaged for a period of three years w.e.f.
30.09.2007 to 30.09.2010 and the same was extended by six
months and again three months till 30.06.2011. The
petitioners along with others relieved from their tenure from
14.07.2011.
e) Advertisement No.3/2011 was issued as per the
recruitment rules of the respondent. The same was
forwarded to the local employment exchange to sponsor
suitable candidates.
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f) The 2nd petitioner along with 51 others filed
O.A.Nos.602 and 609 of 2011 before the Central
Administrative Tribunal, Hyderabad. The Tribunal granted
interim order suspending Advertisement No.3/2011 and
directed the respondents not to proceed pursunt to
Advertisement No.3/2011. Thereafter, the respondents filed
vacate petition. Thereby, the said interim order was vacated.
g) The 2nd petitioner and others filed W.P.No.20088 of
2011 for regularisation of service and sought interim stay of
advertisement No.3/2011. The Court directed the
respondents to continue the petitioners in service on the
existing terms and given liberty to the respondents to proceed
with the selections in pursuance of Advertisement No.3/2011.
In an appeal i.e. W.A.No.636 of 2011, the said interim order
dated 09.08.2011 was set aside on 26.08.2011. Almost all
the petitioners in W.P.No.20088 of 2011 responded to
Advertisement No.3/2011 and some of them were duly
selected and that petitioners 5, 6, 7, 15, 17. 22, 23, 33, 35,
39, 40, 47, 49 and 51 withdrew from the said writ petition.
Though the respondent had given relaxation in respect of age,
percentage in qualifications to the candidates belonging to SC,
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SC and Physically Handicapped, the petitioners are aged
barred.
h) The respondent had not permitted any internal
candidates by relaxing their age criteria to Recruitment Rules
and Policy laid down in this regard. The petitioners are not
internal candidates to claim any advantage or benefit accrued
to internal candidates.
i) The personal Circular No.2165/2012 was issued to fill
un-filled vacancies of Scientific Assistant 'A' category of posts
6 nos. and fresh vacancies of Tradesman 'B' Trainee (Turner)
Tradesman 'B' (Fitter-2) Machinist (Composite/Grinder-3) and
Welder-2 total 7 posts under Special Recruitment Drive vide
Advertisement No.3/2011 and they were filled up and that
there are no backlog posts. The said Advertisement
No.3/2011 provided requirements regarding age and
relaxation that is permissible in case of SC/ST/PH candidates
pertaining to Scientific Assistant 'A' posts only and the
petitioners have no relevance to the said Advertisement
No.3/2011 for the posts notified vide personal Circular
No.2165/2012. Therefore, the allegation of the petitioners is
denied.
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j) In view of the above the writ petition is liable to be
dismissed.
PERUSED THE RECORD:
5. The counter affidavit filed by respondent Nos.1
and 2 dated 27.02.2012, in particular paras 14 and 15
read as under:
14. The allegation made in para 6 that once a
candidate is engaged as a Casual/Contract employee,
their case must be considered contrary to Recruitment
Rules by giving relaxation as contended by the
Petitioners is without any basis. The respondent
Corporation considered the relaxation of age
applicable to SC/ST candidates in spite of doing
so, both the petitioners are found to be over aged.
15. It is submitted that Shri N.Vijay Kumar applied for
the post of Tradesman B, Trade Fitter. The age
prescribed for the said post is the Candidate should not
be the over age of 30 years and in case of SC/ST
candidates, a candidate should not be over the age
of 30 years as per the Recruitment Rules of the
Respondent. Shri Vijay Kumar, according to the
particulars furnished by him in the Application
Form, his age is 37 years that is beyond the age
prescribed in the Recruitment Rules of the
Respondent and is accordingly over aged. Similarly
is the case of second petitioner Shri K.Seetgharamulu,
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he applied for Tradesman B - Trade welder, the above
referred age requirements are applicable to this post
also and as per the particulars furnished by Shri
K.Seetharamulu in his Application, his age is 39 years.
Shri K.Seetharamulu is over aged as per the Rules of
the Respondent Company. Thus, both the petitioners
are over aged as such they do not meet the eligibility
criteria. Consequently the Applications of the
Petitioners cannot be processed further as they are not
eligible for consideration for the said post.
DISCUSSION AND CONCLUSION:
6. It is the specific case of the petitioner that the
petitioners belong to Scheduled Caste/Scheduled Tribe
category and respondents issued a Notification No.ECIL PG
(R) 2012 dated 2012.01.21 for recruitment of Fitters-2,
Welders-2, and Turner-1 in permanent post and the
Notification did not stipulate any age at all.
7. It is further the case of the petitioners that the
candidature of the petitioners had not been considered by the
respondents for the above post though petitioners fulfilled the
eligibility criteria. It is further contended on behalf of the
petitioners that once a candidate is engaged in public
employment within the age prescribed as casual or contract
WP_2318_2012
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employee or temporary in the respondent company i.e.,
within the prescribed age limit and worked in the status of
casual or temporary contract basis such candidates age has to
be relaxed for the purpose of providing permanent
employment.
8. This Court vide its interim orders dated
31.01.2012 in W.P.M.P.No.2318 of 2012 was pleased to
pass orders observing as follows:
In the circumstances, the petitioners are directed
to submit their applications on or before 03.02.2012
and the respondents are directed to receive the same,
pending further orders.
Notice.
9. Then again on 04.04.2012, this Court was pleased
to pass orders in W.P.M.P.No.12057 of 2012 observing
as follows:
Learned counsel for the respondent
submitted that the petitioners have become age
barred.
On the other hand, Ms.G.Sudha, learned
counsel for the petitioners, submits that she has
not furnished with the copy of counter.
Subject to further orders to be passed by this
Court as to whether the petitioners have become
age barred or not, the respondents are directed to
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issue hall tickets to the petitioners and permit
them to sit for practical test and interview to be
held on 06.04.2012.
10. The petitioners on 07.11.2012 also filed
W.P.M.P.No.45447 of 2012 in W.P.No.2318 of 2012
seeking direction to the respondents to issue
appointment order vide Notification No.3/2011 for the
post of Welder by relaxing the age in W.P.No.2318 of
2012 and a detailed counter affidavit has been filed by
the respondents to the said W.P.M.P.No.45447 of 2012
on 31.1.2013 and in particular the relevant paras 5, 6
and 7 read as under:
"5) It is submitted that in the meanwhile the
Respondent Company issued Advertisement Notification
No.03/2011 inviting Applications from the eligible
candidates to the post of Tradesman-B and Scientific
Assistant-A on permanent basis in accordance with
Recruitment Rules of the Respondent Company. The
Respondent Company issued personnel Circular
No.2087/2011 also notifying the said regular vacancies
to the Regional Employment Exchange, Ranga Reddy
District for sponsoring eligible candidates. Further, the
Respondent Company by making an amendment to
Personnel Circular No.2087/2011, dated 17-03-2011
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incorporated a clause in the said circular permitting the
personnel who are working on contract basis and
completed/completing three years of contractual tenure
as on 31-03-2011 to submit their application for the
said post. In view of the same the personnel who are
working on contract basis during the said relevant point
of time were also permitted to submit their application
for the said posts without observing age stipulation and
payment of application fee. The 1st Petitioner did not
choose to apply to the said post. However, the 2nd
Petitioner submitted his application and he was
subjected to the selection process consisting of Trade
Test and Interview conducted on 07-08-2011. The 2nd
Petitioner's candidature was considered in ST Category
and he was found to be not qualified in the said
selection process and therefore was not selected despite
allowing 20% relaxation over and above the general
qualifying standards given for SC/ST candidates.
6) Further it is submitted that pursuant to the selections
made under Advertisement No.3/2011, some of the
posts reserved for SC and ST Category could not be
filled up due to non-availability of suitable candidates.
Therefore, the Respondent Corporation initiated special
recruitment drive for SC and ST to fill backlog posts of
Tradesman-B and Tradesman-B Trainee by notifying 8
posts of Tradesman-B and 8 posts of Tradesman-B
Trainee to the Ranga Reddy District Employment
Exchange vide notification Dated 07.04.2011. The
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employees who were working on contract basis were
also allowed to apply by treating them as internal
candidates without observing age criteria. As the posts
notified were pursuant to the notification issued under
Advertisement No: 3/2011, the candidates who worked
under contractual basis earlier and continued to work as
on 31-03-2011 were also allowed to apply for the same
and their candidature was considered as internal
candidates without observing age stipulation and
payment of application fee which is followed in all cases
of external candidates. The Petitioners herein also
submitted their applications seeking consideration
of their candidature under the special recruitment
drive and their candidature was considered as
internal candidates as they were working on
contractual basis as on 31-03-2011. The selection
committee conducted test and interview for
adjudging the suitability of the candidates on 18-
09-2011. But the Petitioners failed to secure the
qualifying marks in the trade test and Interview
and as such they were not selected.
7) It is submitted that the Respondent Company could
not fill up the backlog posts reserved for SC and ST as
they could not find suitable candidates even in the
special recruitment drive undertaken by the Respondent
Company. Therefore, the Respondent Company initiated
fresh recruitment process and for this purpose
had issued another Circular No.2165/2012 dated
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21.01.2012 to fill up the unfilled vacancies under
special recruitment drive Advertisement
No.3/2011. As per the said circular employees
presently working on contract basis and
completed/completing three years of service as
on 30th November, 2011 alone were eligible to
apply for the said posts apart from other internal
candidates. The Petitioners herein were not
eligible to apply for the said posts as they became
age barred and further as their tenure
appointment came to an end on 30-06-2011 and
they were not working as on 30-11-2011.
Therefore, the claim made in the main Writ
Petition as well as in the present Miscellaneous
Petition is contrary to the recruitment rules of the
Respondent Corporation. Therefore the present
Miscellaneous Petition is liable to be dismissed."
11. The Hon'ble Apex Court in the Judgment reported
in (2011) 7 SCC, Page 397 in "Union of India and
another v. Arulmozhi Iniarasu and others" at para
Nos.13, 14, 16 and 26 observed as under:
13. Thus, in these appeals the first and the foremost
question to be examined is whether in the matter of
relaxation of age-limit, prescribed as eligibility criteria
for appointment on a particular post, any principle of
law has been laid down in the decision of this Court in
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Nagendra Chandra's case? If so, whether it could be
applied to the facts of the present case for directing the
afore-stated relaxation in age limit?
14. Before examining the first limb of the question,
formulated above, it would be instructive to note, as a
preface, the well settled principle of law in the matter of
applying precedents that the Court should not place
reliance on decisions without discussing as to how the
fact situation of the case before it fits in with the fact
situation of the decision on which reliance is placed. The
observations of Courts are neither to be read as Euclid's
theorems nor as provisions of statute and that too taken
out of their context. These observations must be read in
the context in which they appear to have been stated.
Disposal of cases by blindly placing reliance on a
decision is not proper because one additional or
different fact may make a world of difference between
conclusions in two cases. (Ref.: Bharat Petroleum
Corporation Ltd. v N.R. Vairamani, Sarva Shramik
Sanghatana (KV), v. State of Maharashtra and
Bhuwalka Steel Industries Limited Vs. Bombay Iron &
Steel Labour Board).
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
the case of Nagendra Chandra. In the instant case,
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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 directed 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 considerable
long duration did not confer any legal right on them for
seeking a mandamus for relaxation of age limit.
26. Lastly, as regards the submission that the action of
the appellants is highly discriminatory inasmuch as
some similarly situated persons have been
appointed/absorbed as Sepoys, the argument is stated
to be rejected. It is well settled that a writ of mandamus
can be issued by the High Court only when there exists
a legal right in the writ petitioner and corresponding
legal obligation on the State. Only because an illegality
has been committed, the same cannot be directed to be
perpetuated. It is trite law that there cannot be-
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equality in illegality, (Ref. Sushanta Tagore v. Union of
India, U.P. State Sugar Corpn. Ltd. v. Sant Raj Singh,
State v. Sashi Balasubramanian and State of Orissa v.
Prasana Kumar Sahool.)
12. This Court opines that the petitioners herein are
not entitled for any relief as claimed by them, in view of
the law laid down by the Hon'ble Apex Court in the
Judgment reported in "Union of India and another v.
Arulmozhi Iniarasu's case (supra). But, however, case
of the petitioners had been considered and the
petitioners were also directed to submit their
applications for the subject posts without observing
age stipulations and payment of application fee.
The 1st petitioner did not choose to apply for the said
post. However, the 2nd petitioner submitted his
application and he was subjected to selection process
consisting of Trade Test and Interview conducted on
07-08-2011 and the 2nd petitioner's candidature was
considered in Scheduled Tribe (ST) category and he
was found to be not qualified in the said selection
process and therefore, was not selected despite
allowing 20% relaxation over and above the general
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qualifying standards given for SC/ST candidates. As
specifically stated in para 5 of the counter affidavit filed
by the respondents in W.P.M.P.No.45447 of 2012 in
W.P.No.2318 of 2012, this Court opines that the Writ
petition is devoid of merits and accordingly, the same is
dismissed.
Miscellaneous petitions, if any, pending shall stand
dismissed.
_____________________
SUREPALLI NANDA, J
Date: 25.04.2023
Note: L.R.Copy to be marked.
b/o
Yvkr
