1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.138 OF 2010 Mukund s/o Uttamrao Somde, Age-32 years, Occu:Service, R/o.Phulambri, Tq-Phulambri, Dist-Aurangabad. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through the Secretary, Department of Energy, Mantralaya, Mumbai, 2) The Maharashtra State Electricity Distribution Company Ltd., Pune, Through it's Chief Engineer, 3) The Maharashtra Knowledge Corporation Ltd., Senapati Bapat Road, Pune, Through its Managing Director. ...RESPONDENTS. ... Mr.N.T. Tribhuvan Advocate for Petitioner. Mr.V.D. Godbharale, A.G.P. for Respondent No.1. Mr.A.S. Bajaj Advocate for Respondent No.2. ... 2 CORAM: A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE : 22ND JANUARY, 2010. COURT'S ORDER (PER A.M. KHANWILKAR, J.) : 1. Heard learned counsel for the parties. 2. In this Petition, the Petitioner has challenged the advertisement No.01/2009 dated 1st December, 2009 published by the Respondent No.2 to the extent of prescribing upper age limit of 30 years for open category candidates to fill up the post of junior operator and for further relief prayed to direct the Respondent No.2 to prescribe the upper age limit of 33 years. Consequential relief is claimed in the nature of direction against the Respondent No.2 to accept the application form of the Petitioner for the post of junior operator as per the said advertisement so that the Petitioner can be permitted to 3 participate in the selection process. 3. It is not in dispute that on the relevant date referred to in the advertisement i.e. 21st December, 2009, the Petitioner had crossed the upper age limit of 30 years, as he was born on 11th May, 1977. The advertisement in question prescribes the upper age limit of the prospective applicant up-to 30 years. In that view of the matter, the Petitioner was ineligible to be considered and therefore, could not have applied pursuant to the said advertisement. 4. To get over this position, it is the case of the Petitioner that he has undergone training and apprenticeship during the period of 1995 to 1996 after completing the I.T.I. course in the year 1994. The period so spent by the Petitioner towards the training and apprenticeship should be added to the upper age limit of 30 years as provided in the advertisement to maximum of 33 years as was the regime during the erst-while 4 Maharashtra State Electricity Board before its bifurcation and constitution of Respondent No.2 company. The Petitioner has challenged the policy decision of the Respondent No.2 in fixing the upper age limit of 30 years because it impinges upon the legitimate expectation of the Petitioner and similarly placed persons who were always under impression that the regime which was followed since 1968 by the erst-while Management (M.S.E.B.) would be binding on the Respondent Company after the de-merger of the erst-while Management. According to the Petitioner, having regard to the fact that ban on appointments operated since 1999 and for the first time after the constitution of the Respondent No.2 Company in May, 2005, advertisement to fill in the vacancies has been issued in December, 2009, it would be unjust to impose the restriction of upper age limit of 30 years, which would deny opportunity of being considered to the persons similarly situated as that of the Petitioner. 5 5. The Petitioner has relied on the circulars issued by the erst-while Management dated 1st February, 1978, 22nd November, 1978, 4th March, 1980 including Government Resolution dated 17th August, 2004, to indicate that the Respondent No.2 was obliged to retain the maximum age limit of the prospective applicant to 33 years. 6. The Respondent No.2, on the other hand, submits that the assumption of the Petitioner is ill-founded in as much as the maximum age limit of 30 years has been fixed after due deliberation and is a conscious departure from the regime that was followed by the erst-while Management. The fact that the Petitioner had become over-age on account of ban on appointments or that the erst-while Management was following certain regime would not create any right in favour of the Petitioner. The policy of the Respondent No.2 will have to be tested on its own merits and not on the basis of the procedure followed by the erst-while Management. There is nothing on record to indicate 6 that while Respondent No.2 was constituted on account of de-merger, the Respondent No.2 was made liable to follow the same policy matters of the erst-while Management. It is stated on affidavit that the Board of the Respondent No.2 has considered all the aspects of the matter and took a conscious decision that insofar as proposal regarding raising the upper age limit for pay group III and IV on the lines of State Government orders and also proposal regarding fixing upper age limit of the employees who are in service of the Board (Departmental employees) and competing under direct recruitment along with out side candidates, that came to be rejected by the Board. It is the case of Respondent No.2 that neither the policy of the erst-while Management nor the Government Resolution would bind the Respondent No.2 and cannot be the basis to test as to whether the policy of the Respondent No.2 is just and proper. It is submitted that the Court will have to keep in mind that the scope of judicial review is limited and it is not open to the Court to 7 interfere with the policy decision especially in respect of the criteria to be adopted regarding qualification for appointment in the service of the Respondent No.2 company, since the said policy is not in violation of any statutory or constitutional provisions. 7. Having considered the rival submissions, we find merits in the stand taken by the Respondent No.2 that the condition imposed in the advertisement of upper age limit of 30 years while inviting the applications for the concerned posts, is a policy decision of the Respondent No.2 and the same cannot be lightly interfered with. The scope of judicial review to interfere with the policy matter and in particular, relating to the necessary qualification mentioned therein, would be possible only if the said policy decision was shown to be in violation with some statutory or constitutional provision. No statutory provision has been brought to our notice, which would persuade us to take the view that the policy 8 decision of the Respondent No.2 to restrict upper age limit to 30 years, is in breach of such statutory provision. 8. Our attention was invited to Classification and Recruitment Regulations, 1961, which, it is common ground, were applicable during the erst- while Management and has been adopted and followed even by the Respondent No.2. Even the said Regulations provide for upper age limit of direct recruitment in Pay Group No. III and Pay Group No. IV for which we are presently concerned, as 30 years. That upper age limit can be relaxed up to 5 years by the Selecting Authorities in cases where the minimum experience prescribed is 10 years, or more without the necessary of approval by the higher authority and up-to 3 years where the minimum experience prescribed is 5 year s to 9 years. We are not concerned with the exception provided in Note No.1 of the said Regulation No.6 (b) of the Classification and Recruitment Regulations, 1961. 9 9. Having realized this position, according to the learned counsel for the Petitioner, the introduction of policy of upper age limit of 30 years, for the first time by the Respondent No.2 in the year 2009 offends the principles of legitimate expectation. We are not impressed with this submission. Firstly, the principle of legitimate expectation cannot be invoked against the Respondent No.2 company which has been constituted on account of de-merger in May, 2005. No provision in the de-merger scheme has been relied or for that matter, brought to our notice where-under the Respondent No.2 has been made liable to follow the regime which was prevalent during the tenure of the erst-while Management. Therefore, the circulars which have been pressed into service by the Petitioner, issued during the said period in 1978 or for that matter in 1980 cannot take the matter any further. Similarly, the reliance placed on the Government Resolution dated 17th August, 2004 will only be recommendatory in 10 nature and cannot be treated as binding on the Respondent No.2 as such, assuming that the same refers to the Corporation such as the Respondent No.2. 10. The selection process which has been notified by the Respondent No.2 will have to abide by the policy decision of the Respondent No.2 which has been taken at the highest level by the Board of Directors, after due consideration of all the relevant circulars including the Government Resolution. It is the decision of the Respondent No.2 company to provide for upper age limit up-to 30 years only. As observed by the Apex Court in the case of Basic Education Board, U.P. vs. Upendra Rai and others, reported in (2008) 3 Supreme Court Cases, Page 432, the scope of scrutiny of such policy decision by the Court in exercise of writ jurisdiction is very limited to find out whether such policy decision is in violation of some statutory or constitutional provisions. As found earlier, the policy decision 11 of the Respondent No.2 can be, by no standards said to be in violation of any statutory provision. No such provision has been brought to our notice. Assuming the argument of the Petitioner that the policy impinges upon the legitimate expectation of the Petitioner and is therefore in violation of the constitutional provision, is to be considered as is noted earlier, even the same is founded on misconception and is ill-advised. The prospective applicants cannot entertain expectation that for all times to come, the same selection norm would prevail. If it is so, the question of invoking the principles of legitimate expectation is devoid of merits. Similarly, the fact that there was complete ban on the appointment since 1999 even before the constitution of the Respondent No.2 company, cannot be the basis to create any right much less, a constitutional right in favour of the Petitioner to be considered for being appointed by the Respondent No.2 irrespective of the qualifying age limit specified by the Respondent No.2 for the 12 process of selection during the relevant period. 11. It was sought to be argued that the Board of the Respondent No.2 has not considered all aspects of the matter and the policy decision of the Board was therefore arbitrary. We find no merits in this submission. On plain language of the Board Resolution, produced on record, there is intrinsic evidence to suggest that all the relevant circulars including State Government orders, were duly examined by the Board and conscious decision was taken that the upper age limit in respect of Pay Group No. III and IV posts shall be up to 30 years only. The determination of such qualification is obviously a policy decision and the sole discretion of the Respondent No.2 in which the Court cannot lightly interfere. The Court neither has the expertise to opine as to whether such qualification is just, proper or otherwise. In such matters the Court should be loath to exercise its jurisdiction to question the prescribed qualification. We have no hesitation in 13 taking the view that the Court cannot sit over the policy decision of the Respondent No.2 Company relating to qualification as a Court of appeal and substitute the same by applying its own standards. 12. Taking any view of the matter, we find no merits in the challenge to the condition prescribed in the impugned advertisement providing for upper age limit of 30 years. 13. The next question is whether the Petitioner would be entitled to take benefit of Note- 3 in the advertisement, which provides that the training and apprenticeship period can be relaxed while considering the maximum age limit. It is not in dispute that the training and apprenticeship period is only up to one year. Even if the said one year period was to be added to the maximum age limit of 30 years, that would be of some relevance only if the Petitioner was to be less than 31 years of age on the specified date. In the present case the Petitioner was admittedly born on 11th 14 May, 1977. Thus, on the specified date i.e. 21st December, 2009, he had exceeded the maximum age of not only 30 years but also the additional one year towards the training and apprenticeship period on 11th May, 2008. Therefore, the Petitioner, in any case, was ineligible to apply on 21st December, 2009. 14. The Petitioner has placed reliance on the decision of the Apex Court in the case of U.P. State Road Transport Corporation vs. U.P. Parivahan Nigam Shishukhs Berozgar Sangh, reported in 1995 (2) Supreme Court Cases, Page 1. The exposition in the said decision was in the context of the fact situation of that case, where the Allahabad High Court had issued directions to the Corporation to employ those who had received training in the workshop of the Corporation. Much emphasize was placed on sub clause (3) of Paragraph 12 of this decision, where the Apex Court has observed that, if age bar would come in the way of the trainee, the same be relaxed in 15 accordance with service rules concerned and if the service rule is silent on that aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given. This decision, as aforesaid, will be of no avail to the Petitioner as he was otherwise ineligible even if the additional period of one year spent on training and apprenticeship was to be reckoned. 15. Accordingly, this Petition should fail and the same is dismissed. [S.S. SHINDE, J.] [A.M. KHANWILKAR, J.] asb/JAN10/wp138.10