Tirumala Tirupati Devasthanams Vs. K. Jotheeswara Pillai (D) By Lrs &Amp;
Others  Insc 509 (3 May 2007)
G.P. Mathur & A.K. Mathur
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 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
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 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
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
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 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.