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CASE NO.: Appeal (civil)  7962 of 2004

PETITIONER: Tirumala Tirupati Devasthanams

RESPONDENT: K. Jotheeswara Pillai (D) by LRs & others

DATE OF JUDGMENT: 03/05/2007

BENCH: G.P. Mathur & A.K. Mathur

JUDGMENT: J U D G M E N T

G. P. MATHUR, J.

       This appeal, by special leave, has been preferred against the  judgment and order dated 21.1.2003 of a Division Bench of Andhra  Pradesh High Court by which the writ appeal preferred by the  appellant was dismissed and the judgment and order dated 20.11.1997  of a learned Single Judge, by which the writ petition filed by the  respondents was allowed with certain directions, was affirmed. 2.      The original writ petitioners before the learned single Judge  worked for certain periods with the appellant Tirumala Tirupati  Devasthanams as Nominal Muster Rolls (for short ’NMR’)  employees.  A circular was issued by the appellant on 25.7.1990  wherein it was mentioned that in case of any vacancies, ex-employees  should be appointed in order of seniority.  The five writ petitioners  were temporarily appointed as Attenders by the appellant on  17.8.1992 on the basis of aforesaid circular being ex-employees.   After verification of the records and other documents it was found that  all the five writ petitioners were overage and were not eligible for  appointment and accordingly their services were terminated on  16.4.1993.  This order was challenged by the employees by filing   Writ Petition No. 5176 of 1993, which was allowed only on the  ground that the action had been taken against the writ petitioners  without issuing any notice and without giving an opportunity of  hearing.  The order of termination dated 16.4.1993 was set aside  leaving it open to the appellant to take fresh action after giving notice  to the concerned employees.  The appellant then issued notices to the  concerned employees on 26.10.1993 and after considering their reply,  passed an order on 30.12.1993 terminating their services on the  ground that they were over age and, therefore, ineligible for  appointment.  The employees then filed writ petition No. 3885 of  1994 challenging the order of termination dated 30.12.1993.  A  learned Single Judge of the High Court allowed the writ petition and  set aside the order of termination of service and directed the appellant  to reinstate the employees (respondents herein) with continuity of  service and full back wages.  The main ground which weighed with  the learned Single Judge was that though the writ petitioners were  appointed as direct recruits on 17.8.1992, but the fact that they had  earlier worked for some time on NMR could not be ignored.  It was  also held that the appellant had practiced invidious discrimination  among persons belonging to the same class inasmuch as by  proceedings dated 6.4.1993 exemption had been granted to 51 persons  from age and educational qualifications and on 4.5.1990 exemption  had been granted to five persons who were under age.  After  mentioning the said facts the learned Single Judge held as under: - "..................................Nothing is placed before the Court

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to show as to why such a discretion could not be  exercised by the board of trustees in the case of the  petitioners.  In fact, the decision of the Board of Trustees  refusing to exercise the power of exemption is not laid  before the Court for perusal.  There is only a reference to  that effect in the impugned order.         In the result, the writ petition is allowed.  The  impugned order is quashed.  A writ of mandamus shall  issue to the respondents to reinstate the petitioners 1 to 4  into service with continuity of service and with full back  wages.  Further, the respondent is directed to consider the  case of the petitioner No. 5 as to whether he is entitled to  be exempted from the operation of age qualification  vested in the trustees under rule (I) of the general rules in  G.O. Ms. No. 1060, Revenue, (Endt.I) department, dated  24.10.1989 within a period of one month from the date of  receipt of a copy of this order.  No costs.         The rule nisi has been made absolute as above." The writ appeal filed by the appellant was summarily dismissed  by the Division Bench of the High Court by a brief order. 3.      Learned senior counsel for the appellant has submitted that the  service conditions of the employees working in Tirumala Tirupati  Devasthanams are governed by the Tirumala Tirupathi Devasthanams  Employees Service Rules, 1989 (hereinafter referred to as "the  Rules") and under Rule 11 no person, who has completed the age of  28 years, is eligible for appointment by way of direct recruitment and  in these circumstances the appointment order issued in favour of the  contesting respondents (writ petitioners) was clearly illegal and the  same was rightly set aside.  Learned counsel has also submitted that  the High Court has clearly erred in directing the appellant to grant  exemption from eligibility criterion in favour of the respondents as, in  law, no such direction can be issued. 4.      Learned counsel for the respondents has supported the  judgments of the High Court and has submitted that in the facts and  circumstances of the case the view taken by the High Court is  perfectly correct. 5.      Rules 1, 2, 3 and 11 of the Rules read as under: - "1.     These rules may be called Tirumala Tirupathi  Devasthanams Employees Service Rules, 1989. 2.      They shall apply to every employee of Tirumala  Tirupathi Devasthanams except to the Officers or Staff  taken on contract basis and officers or staff taken on  deputation from the Government or other organizations. 3.      Unless the context otherwise requires: - (i)     ’Act’ means the Andhra Pradesh Charitable and  Hindu Religious Institutions and Endowments Act,  1987. (ii)    Words and phrases used but not defined in these  rules shall have the same meaning assigned to  them in the Act, the rules framed thereunder or in  respect of rules specified under Rule 4. 11.     Age. : - No person shall be eligible for  appointment to the service by direct recruitment to any  post in the service of Tirumala Tirupathi Devasthanams  in Annexure-II if he has completed the age of 28 years or  the age prescribed therefor in the said Annexure as on the  1st July of the year, in which the notification for  recruitment is issued :         Provided that the orders issued by Government  from time to time regarding the general relaxation of the  age and age relaxation in respect of person belonging to  reserved categories such as Scheduled Caste, Scheduled  Tribe and Backward Class shall apply."

Rule 4 gives a long list of rules made by the Government of

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Andhra Pradesh in respect of the employees of the State Government  which have been made applicable to Tirumala Tirupathi  Devasthanams employees, which includes Fundamental Rules and  Subsidiary Rules issued thereunder, Andhra Pradesh Civil Services  (Conduct) Rules, 1964, Andhra Pradesh Civil Services (Classification,  Control and Appeal) Rules, 1963, etc.  Rule 11 of the Rules clearly  provides that no person shall be eligible for appointment to the service  by direct recruitment to any post in the service of Tirumala Tirupathi  Devasthanams in Annexure-II if he has completed the age of 28 years  or the age prescribed therefor in the said Annexure as on 1st July of  the year in which the notification for recruitment is issued.  It also  provides for general relaxation of age in accordance with the orders  issued by the Government and also in respect of persons belonging to  reserved categories such as Scheduled Castes and Scheduled Tribes  and backward classes.  Thus the Rules make complete provisions  regarding qualification and age for direct recruitment and also in  respect of category of persons to whom relaxation can be granted  which would be in accordance with the Government Orders.  The  Rules do not mention anywhere that while making direct recruitment  any services rendered as an NMR employee has to be taken into  consideration or some relaxation in age is to be granted on its basis.   The writ petitioners had worked for a brief period as NMR employees  in 1984-86.  It was after a gap of more than six years that they were  appointed by way of direct recruitment on 17.8.1992.  Under the  Rules they were clearly ineligible for being given any appointment as  admittedly they were over age. 6.      Learned Single Judge allowed the writ petition mainly on the  ground that on two earlier occasions the appellant had granted  exemption from age and qualifications and no material was placed  before the High Court as to why such a discretion could not be  exercised by the appellant in favour of the concerned employees,  namely, the writ petitioners.  The learned Single Judge has also issued  a writ of mandamus to the appellant to consider whether writ  petitioner No. 5 was entitled for exemption from the requirement of  age limit having regard to certain GOs issued by the Revenue  Department of the State Governments. 7.      In our opinion the reasons given by the learned Single Judge for  allowing the writ petition are wholly untenable in law. Merely  because on two earlier occasions the appellant granted exemption  from eligibility criterion in respect of some employees cannot be a  ground to grant relief to the writ petitioners.  Even if some concession  had been shown to some employees in the past it would not confer  any right upon anyone seeking employment in future to claim  exemption from eligibility criterion as a matter of right.  In K.V.  Rajalakshmiah Setty and another vs. State of Mysore and another AIR  1967 SC 993, it was held as under in paragraph 12 of the Report: - "12.    There is some force in some of the contentions put  forward on behalf of the State of Mysore.  It is not  necessary to test them as we find ourselves unable to  uphold the contention of the appellants.  No doubt some  concession had been shown to the first batch of 41  persons and the batches of persons who had come in after  the batch of 73 persons also received some concession,  but after all these were concessions and not something  which they could claim as of right.  The State of Mysore  might have shown some indulgence to this batch of 63  persons but we cannot issue a writ of mandamus  commanding it to do so.  There was no service rule  which the State had transgressed nor has the State  evolved any principle to be followed in respect of  persons who were promoted to the rank of Assistant  Engineers from surveyors.  The indulgence shown to the  different batches of persons were really ad hoc and we  are not in a position to say what, if any, ad hoc  indulgence should be meted out to the appellants before

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us."         Therefore, the view taken by the learned Single Judge that by  not granting exemption from age criterion the appellant had indulged  in invidious discrimination is clearly erroneous law.   8.      The learned Single Judge has also issued a writ of mandamus  directing the appellant to consider the case of writ petitioner No. 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 The Bihar Eastern Gangetic Fishermen Cooperative Society Ltd.  vs. Sipahi Singh AIR 1977 SC 2149, where this Court observed as  under: - "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." 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 No. 5 for granting him  exemption from the rule providing for upper age limit for fresh  appointment.  9.      In view of the discussion made above the impugned judgments  of the High Court cannot be sustained and must be set aside.  The  appeal is accordingly allowed.  The judgment and order dated  20.11.1997 passed by the learned Single Judge and the judgment and  order dated 21.1.2003 of the Division Bench are set aside and the writ  petition filed by the contesting respondents is dismissed.  10.     No order as to costs.