IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 29.01.2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 36800 of 2007 and M.P. Nos. 1 to 4 of 2007 R. Jawaharlala Nehru .. Petitioner Vs. 1. The State of Tamil Nadu Rep. by its Secretary to Government Personnel and Administrative Reforms Department Fort St. George, Chennai – 9 2. The Secretary Tamil Nadu Public Service Commission Omanthurar Government Estate Chennai – 2 .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the records of the second respondent with regard to the notification / Advertisement dated 01.8.2007 for Group – I Services for the year 2006-2007 and quash the sub-clause (A) and (A)(iii) of Clause 6 of the Notification / Advertisement dated 01.8.2007 as unconstitutional, ultravires, illegal and invalid and consequently direct the second respondent to consider the petitioner for the Group – I services for the year 2006-2007. For Petitioner : Mrs. Chithra Sampath for M/s Ponnarasi For Respondent 1: Mrs. Bhavani Subbaroyan, AGP For Respondent 2: Mr. V. Arul ORDER Heard Mrs. Chithra Sampath learned counsel appearing for M/s. S. Ponnarasi, learned counsel for the petitioner, Mrs. Bhavani Subbaroyan, learned Additional Government Pleader taking notice for the first respondent and Mr. V. Arul, taking notice for the second respondent Tamil Nadu Public Service Commission [for short, 'TNPSC'] and perused the records. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner is an aspirant for the Group I post in the TNPSC for which notification has been given vide Advertisement No. 120/2007. The petitioner is aggrieved by paragraph 6(A) and 6(A)(iii) of the notification dated 01.8.2007 and once the said notification is set aside, he wants a direction to the respondents to consider his name for the Group I services for which the said advertisement has been given. The petitioner was aggrieved by the notification fixing maximum age of 35 years as on 01.7.2007 for SCs/STs/MBCs/DCs/BCs and 30 years in respect of other categories. However, in paragraph 6(A)(iii), the age relaxation of five years in the maximum age limit was given in respect of applicants either who are unemployed youth or those who are in Government service affected by the ban order on recruitment. But it is stated that in respect of candidates not belonging to the reserved categories and who have put in five years of service in the State or Central Government, they are not eligible to apply even though they are within the age limit. 3. The petitioner is admittedly working as Revenue Inspector in the Revenue Department at Tiruchirappalli District and his date of birth was 31.5.1967. Therefore, as per the notification, the petitioner had already crossed the age for applying to the said post. Apart from that, the petitioner had already put in five years of service in the Government. Therefore, he apprehends that his application though submitted pursuant to the advertisement, may be rejected by the second respondent TNPSC. 4. Mrs. Chithra Sampath, learned counsel appearing for the petitioner submitted that such a discrimination of restricting the Government servants, who are in the subordinate service and who have put in more than five years of service, is violative of Articles 14 and 21 of the Constitution of India and when the respondents can grant such an exemption to people who are not in Government service or who have put in less than five years of service as well as not fixing such a ceiling in respect of other candidates not belonging to reserved categories, is a case of gross discrimination, which cannot be permitted by this Court. 5. The arguments made by the learned counsel for the petitioner lack any legal foundation. The comparison of the petitioner with an unemployed youth is misconceived. The policy of the respondent State had emanated from the fact that there was a ban on the recruitment and, therefore, certain concession should be given to unemployed youth. Even though the learned counsel for the petitioner stated that opportunity to participate in the recruitment to Government service is a fundamental right, the said argument overlooks the fact that the petitioner is already in Government service. Therefore, what she now contends is a right to be considered for a higher post. In respect of the Service Rules applicable to Revenue Department, the petitioner has further chances of promotion, viz., that of Deputy Tahsildar, Tahsildar, Revenue Divisional Officer, District Revenue Officer / District Collector, etc. and he can keep on trying for the said line of promotions in accordance with the Service Rules. https://hcservices.ecourts.gov.in/hcservices/ 6. In the present case, while being in Government service, the petitioner wants to compete in direct recruitment for higher post and in such cases, he has right only in terms of conditions stipulated by the Government and he cannot contend that such stipulation is ultra vires of the Constitution of India. The prescription of age limit is a prerogative of the employer, who seek candidates for employment and at the instance of the third party like the petitioner, the rule cannot be impugned. In any event, the rule granting exemption for such of those people, who have not completed five years of service is based upon a sound principle that in those cases, the employees would not have been trained sufficiently in the post due to the short tenure whereas in case of a Government servant who has put in five years and more, he is trained and experience is available and, therefore, he could not be allowed to desert the post in which he is already working. The argument that such a restriction is not applicable to Government servants belonging to other reserved communities and, therefore, it is discriminatory cannot be countenanced by this Court. 7. In fact, by virtue of Articles 16(4) and 16(4)(a) read with Article 335 of the Constitution of India, it is to be seen that the post in the State are filled up by candidates belonging to other categories also. It is a fact that the members of the reserved communities including SCs / STs are not adequately represented in the higher posts under the State Government, viz., in Group II and Group I services. This is mainly on the ground that not many candidates qualify themselves in the direct recruitment and most of the time, Service Rules framed by the State Government under Article 309 of the Constitution of India do not provide for reservation in promotion. Therefore, exempting the restriction in respect of the candidates belonging to reserved categories by the impugned notification, is a valid classification and the petitioner cannot allege that there has been any discrimination. 8. It is essential for the employer to prescribe qualification whenever they seek for candidates for relevant posts. It is not open to the petitioner, who does not have prescribed qualification in terms of the impugned Notification, to come forward to challenge the same. 9. Thereafter, the learned counsel for the petitioner pressed into service the argument of the legitimate expectation. The said argument is misconceived because such a legitimate expectation cannot go against the statutory Rule made by the Government in terms of Article 309 of the Constitution of India. In the decision relating to Ram Pravesh Singh and others v. State of Bihar and others [JT 2006 (12) SC 209], the Supreme Court set out the parameters of the concept of Legitimate Expectation. The following passage found in paragraph 14 may be usefully extracted below: Para 14: "What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term “established practice” refers to a regular, consistent, predictable and certain https://hcservices.ecourts.gov.in/hcservices/ conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by the courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a “legitimate expectation” of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above “fairness in action” but far below “promissory estoppel”. It may only entitle an expectant: ( a ) to an opportunity to show cause before the expectation is dashed; or ( b ) to an explanation as to the cause for denial. In appropriate cases, the courts may grant a direction requiring the authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bona fide reason given by the decision-maker, may be sufficient to negative the “legitimate expectation”. The doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognised legal relationship with the authority. A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that the authority has a general obligation to act fairly." 10. In a recent judgment of the Supreme Court reported in 2007 AIR SCW 5989 [Union of India and others v. S. Vinod Kumar and others], it was held that the prescription of qualification is prerogative of an employer and the Court's power is very limited. The relevant passage found in paragraphs 10 and 11 read as follows: https://hcservices.ecourts.gov.in/hcservices/ Para 10: "It may be true that the cut-off marks at 71 had been fixed for unreserved candidates on the basis that marks obtained by the last candidate, i.e. 240th candidate, calculated at 50% of the 480 candidates, but concededly 56 marks were fixed for Other Backward Classes candidates and 20 marks were fixed for Scheduled Caste and Scheduled Tribe candidates. Only because the cut-off marks at 71 had been fixed on the basis of the aforementioned criteria, the same by itself, in our opinion, would not mean that no cut-off mark had been fixed. The fact that the Railway Administration intended to fix the cut- off mark for the purpose of filling up the vacancies in respect of the general category as also reserved category candidates is evident from the fact that different cut-off marks were fixed for different categories of candidates. We are, therefore, unable to accept the submission of the learned counsel that the cut-off marks fixed was wholly arbitrary so as to offend the principles of equality enshrined under Article 14 of the Constitution of India. The power of the employer to fix the cut-off marks is neither denied nor disputed. If the cut-off mark was fixed on a rational basis, no exception thereto can be taken. Para 11: .... Once it is held that the appellants had the requisite jurisdiction to fix the cut-off marks, the necessary corollary thereof would be that it could not be directed to lower the same. It is trite that it is for the employer or the expert body to determine the cut-off marks. The court while exercising its power of judicial review would not ordinarily intermeddle therewith. The jurisdiction of the court, in this behalf, is limited. The cut-off marks fixed will depend upon the importance of the subject for the post in question. It is permissible to fix different cut-off marks for different categories of candidates. (See Banking Service Recruitment Board v. V. Ramalingam [(1998) 8 SCC 523]". [Emphasis added] 11. In view of the above, the writ petition lacks in merits and stands dismissed accordingly. However, there will be no order as to costs. Connected Miscellaneous Petitions are closed. gri Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government State of Tamil Nadu Personnel and Administrative Reforms Department Fort St. George Chennai – 9 2. The Secretary Tamil Nadu Public Service Commission Omanthurar Government Estate Chennai – 2 +1 cc to M/s.S.Ponnarasi, Advocate Sr.No.4113. +1 cc to The Government Pleader Sr.No.4151. VC(CO) DCP/6.2 W.P. No. 36800 of 2007 https://hcservices.ecourts.gov.in/hcservices/