Heard learned advocates for the parties.
The petitioners in both the petitions have approached this Court with identical prayers based upon the earlier orders passed in similar matters, so as to enable them to have the examination pursuant to advertisement dated 24th November, 2012 for various posts in respondent Corporation by relaxing the age criterion. As the challenge is identical and respondent is same, both the matters were heard and are being disposed of by this common order.
The petitioners have been working with respondent Corporation since years and petitioners have in fact were agitating their claim to be treated as permanent employees of the Corporation. The Competent Court is adjudicating that claim. Some of the petitioners have acquired qualification, which would entitle them to compete for the posts advertised, if they are also given benefits of age relaxation. The number of matters and orders have been relied upon as could be seen from narration given in paras 4 to 9 in Special Civil Application No. 16229 of 2012. The order passed by this Court (Coram: S.R. Brahmbhatt, J.) dated 27.11.2009 in Special Civil Application Nos. 12529 of 2009 with Special Civil Application No. 196 of 2005 with Civil Application No. 12390 of 2009 has also been pressed into service. The same is produced at page-15. At this stage, Shri Mehta, learned advocate appearing for the respondent Corporation brings to the notice of the Court that fact that said order, which has been relied upon, is of no avail, as the said order was stayed by the Division Bench in Letters Patent Appeal and said order is produced right in the compilation at page-22.
Learned advocate for respondent Corporation has strongly objected to allowing these petitions and granting any relief as the same amount to conferring a status, which is not there upon the employees and impinging upon the policy of the Corporation, which is not permissible under Article 226 of the Constitution of India. Learned advocate for respondent Corporation contended that the orders relied upon are all interim orders and by virtue thereof, the petitioners were permitted to appear and ultimately when they did not make it, the petitions become disposed of as having become infructuous. Therefore, let there be a clear and unequivocal decision qua rights and contentions of either parties. Shri Mehta, learned advocate appearing for respondent Corporation further submitted that even if the petitioners are ready and willing to file an undertaking that on their being selected, they will not claim any benefits of past services or they be treated as fresh appointees or permission granted by this Court, will not be relied upon for claiming any benefits or advantage before the Reference, wherein, the workmens question for being considered as regular employees is pending, no order or relief could be granted, as it would amount to setting at naught the recruitment itself and submits that it is a time when the Corporation would request the Court to discourage this practice as the petitioners have been taking advantage of interim orders only, which would have serious effect upon the recruitment policy of the Corporation.
The Court is of the considered view that if the counsel for the petitioners has relied upon page-51 and pointed out that the age relaxation in a class of cases is acknowledged and granted by the very Corporation, then, let there be a class of the present petitioners also, which would not prejudice the Corporation in any manner. The employees, who have been working with the Corporation for years together, may not in a regular capacity, as sought to be canvassed but fact remains to be noted that when the Corporation has given benefits of age relaxation to the ex-apprentice so far as their services with the Corporation, then, the existing employees may be not regular , cannot be denied benefits of permitting to the have examination. At this stage, the question of ultimate outcome of the examination is not offing or considered and therefore, the Court did not elaborately delve upon this aspect. Suffice it to say at this stage that in absence of any patent prejudice pleaded, merely, holding out recruitment policy and submitting that contrary orders thereto, per-se amount to prejudice, is not tenable especially in peculiar facts and circumstances of the case, where it is no one s case that present petitioners have been working with Corporation since years together and therefore, despite there legitimate expectations of being treated fairly, if they want to come and compete in the open market by offering their candidature, the legitimate expectations of age relaxation cannot be said to be illegal and/or so create a demand as to prejudice Corporation s policy in any manner, on the contrary, there ought to have been a voluntary act of the Corporation to offer relaxation to such employees, as a model employer, as the Corporation has claimed to be State instrumentality.
The petitions are therefore allowed. The respondent Corporation is directed to permit the petitioners to apply relaxing the age criterion and permit them to have examination. There shall be no order as to costs.
Registry is directed to keep the copy of this order in Special Civil Application No. 17029 of 2012.
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