The petitioner belonged to Most Backward Community. He holds a Diploma in Electrical and Electronic Engineering. He got his name registered in the Employment Exchange under the MBC category on 27.06.1988. When the petitioner found that the respondent Electricity Board had called for candidates from the Employment Exchange and proposed to conduct interview for the post of Technical Assistants, he has come forward to file the present writ petition, seeking for a direction to sponsor his name also for being considered to the post of Technical Assistant so as to enable him to attend the interview conducted by R3 and R4 from 06.07.2009 onwards.
2. Even at the time of filing of the writ petition, the petitioner was 39 years old and he had crossed the upper age limit fixed for entering to the said post. This matter was heard along with other cases wherein, the respondent Board had filed a counter.
3. In the counter affidavit, the respondents have stated that the Board regulations framed under
Section 79(c) of the Indian Electricity Supply Act, 1948 provides for an upper age limit for entering into service. In respect of the Most Backward candidates, the upper age limit is fixed as 32. Subsequently, the State Government had banned recruitments and when that ban was removed, a special Government Order was issued in G.O.No.98 P & AR Department. By the said Government Order, 5 years relaxation in the upper age was given for all candidates. Therefore, in the light of the said Government Order, which was also adopted by the third respondent, upper age limit for MBC categories for entering into the Board's service will be 37 years. Hence, the petitioner's name was neither sponsored nor considered by the Board.
4. A written instruction was also given by the District Employment Exchange stating that the petitioner is eligible to have the benefit of Rule 12(d) of the General Rules.
5. The learned counsel for the petitioner placed reliance upon Rule 12(d) of the Tamil Nadu State and General Service Rules, wherein, it prescribes no upper age limit in case a candidate possessed higher qualification than the one prescribed for a particular post. He also submitted that in case of reserved categories, if the minimum qualification is not prescribed and a special qualification is prescribed, there can be no upper age limit. Reliance placed upon Rule 12(d) has no relevance in respect of the appointments made to the services under the Tamil Nadu Electricity Board, which is an autonomous Board and governed by the provisions of the Act. Under
Section 79(c), conditions of service of the officers and other employees of the Board will have to be framed by the Board and it had already been provided in terms of Tamil Nadu Electricity Board Service Regulations. Regulation 91 prescribes minimum general educational qualification for all posts and the said provision is more or less akin to Rule 12(d) of the Tamil Nadu State and Subordinate Service Rules. But the learned counsel for the petitioner states that there can never be any upper age limit in respect of reserved categories since the post of Technical Assistant requires a diploma, which is not the minimum qualification under the Rules. Such contention can never be accepted.
6. The petitioner also submitted that the direction given by the State Government is binding on the Board and therefore, the Government orders will have to be read into the Board's service regulations. This argument over looks the fact that
Section 15 read with
Section 79(c) of the Electricity (Supply) Act cannot entertain such an interpretation. Under the provisions of the Act, it is the Board which has to appoint according to its own service regulations.
7. In the present case, notwithstanding the fact that there was no amendment to the service regulations, the Board had extended the benefits under G.O.No.98 and had granted 5 years' relaxation in the upper age limit. The petitioner's case cannot be considered even if the said relaxation was given. It is for the employer to fix the upper age limit and once such an age limit is fixed, it is not open to any third parties to question the fixation of an upper age limit. A careful reading of the Rule do not give any room for interpretation advanced by the petitioner.
8. With reference to interfering with the criteria in fixing a cut of date of an age for entering government service, the Supreme Court in Union of India v. Sudhir Kumar Jaiswal reported 1994) 4 SCC 212 dealt with its scope. It is useful to reproduce the following passage found in paragraphs 5 to 7 which is as follows:-
5. As to when choice of a cut-off date can be interfered was opined by Holmes, J. in Louisville Gas & Electric Co. v. Clell Coleman by stating that if the fixation be very wide of any reasonable mark, the same can be regarded arbitrary. What was observed by Holmes, J. was cited with approval by a Bench of this Court in Union of India v. Parameswaran Match Works (in paragraph 10) by also stating that choice of a date cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. It was further pointed out where a point or line has to be, there is no mathematical or logical way of fixing it precisely, and so, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide of any reasonable mark.
6. The aforesaid decision was cited with approval in D.G. Gouse and Co. v. State of Kerala; so also in State of Bihar v. Ramjee Prasad to which decision we shall have occasion to refer later also.
7. In this context, it would also be useful to state that when a court is called upon to decide such a matter, mere errors are not subject to correction in exercise of power of judicial review; it is only its palpable arbitrary exercise which can be declared to be void, as stated in Metropolis Theater Co. v. City of Chicago in which Justice McKenna observed as follows:
It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void .... The aforesaid was noted by this Court in Sushma Sharma v. State of Rajasthan in which case also reasonability of fixation of a date for a particular purpose had come up for examination.
9. Even in cases where relaxations for upper age limit is sought, the Supreme Court has held that such power do not vest with the Courts vide its decision in E.Ramakrishnan v. State of Kerala reported in (1996) 10 SCC 565. The following passage found in paragraph 4 may be usefully extracted below:-
"4. It is then contended that the petitioners have turned overaged and, therefore, necessary direction may be given to regularise their service by filling up the unfilled posts. Even that relief also cannot be granted. If the petitioners have turned overaged on the date of recruitment, it would be for the appropriate Government to relax the age requirement and the petitioners have to stand in the queue and get selection through the PSC. Thus what they get is only the right to appointment to the post."
10. In the light of the above, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
svki To
1.The District Employment Officer, Salem District,Salem.
2.The Commissioner of Employment and Training, Industrial Estate, Guindy, Chennai 600 032.
3.The Chief Engineer (Distribution) Tamilnadu Electricity Board, Salem Division, Udayapatti Bypass Road, Kamaaj Nagar Colony, Salem.
4.The Chairman, Tamilnadu Electricity Board, 144, Anna Salai, Chennai 600 002