THE ELECTRONIC CORPORATION OF INDIA LTD. AND ANR. versus M. SHIVANI AND ANR. on 8 March 2019

THE ELECTRONIC CORPORATION OF INDIA LTD.AND ANR.

v.

M. SHIVANI AND ANR.

(Civil Appeal No. 2560 of 2019)

MARCH 08, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Service Law:

Appointment/Recruitment – Age-relaxation for recruitment –Granted to those who had worked or working with the employerCorporation – Entitlement to such relaxation to the employees(respondents) who were working with the employer-Corporationthrough an outsourcing agency – Held: In view of the terms of theadvertisement for the recruitment, the respondents were not entitledto the age relaxation.

Allowing the appeal, the Court

HELD: The record indicates that the respondents wereengaged through an outsourcing agency. Going by the terms ofthe advertisement, the respondents were not entitled to haveany age relaxation. The advertisement was issued on 19.12.2017and the last date for submission of applications was 05.01.2018.Challenge itself was raised by the respondents by filing WritPetition on 02.01.2018. The Single Judge of the High Court was,therefore, right and justified in rejecting the challenge. By thetime the matter came up before the Division Bench, the periodwas already over. The Division Bench did not consider thesubmissions whether the respondents could, as a matter of right,claim relaxation in age limit. The assessment made by the DivisionBench was completely incorrect. [Paras 8, 9] [527-F-G; 528-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2560of 2019.

From the Judgment and Order dated 08.03.2018 of the High Courtof Judicature at Hyderabad for the State of Telangana and the State ofAndhra Pradesh in Writ Appeal No. 94 of 2018.

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AAnnam D. N. Rao, A. Venkatesh, Rahul Mishra, Advs. for theAppellants.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. This appeal challenges thecorrectness of the judgment and order dated 08.03.2018 passed by theBHigh Court of Judicature at Hyderabad for the State of Telangana andthe State of Andhra Pradesh in Writ Appeal No.94 of 2018.

2. The matter arises out of Writ Petition No.382 of 2018 filed bythe Respondents in the High Court submitting inter alia that they hadbeen working with the Appellant-Corporation through an outsourcingCagency since 2010; that they had passed ITI and completed NationalApprenticeship Certificate in the Appellant-Corporation itself; that theAppellant had issued Notification No.38 of 2017 for recruitment to theposts of Tradesman-B (WG-III) in different trades; that the upper agelimit was prescribed as 28 years as on 30.11.2017; that there wasDrelaxation in the age limit upto 40 years for those who had worked orwere working with the Appellant-Corporation as Senior Artisan/JuniorArtisan with ITI qualification plus NAC or ITI qualification plusexperience of tenure based contract. It was the submission of theRespondents that they were seeking similar extension of benefit of agerelaxation as they had worked through an outsourcing agency.

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3. In the affidavit-in-reply by the Appellant-Corporation it wasstated that 3064 applications were received pursuant to the Notificationto fill up 40 posts and that the request of the Respondents could not beconsidered as it would have had a cascading effect as many similarlysituated candidates, who had been working through outsourcing agencies,Fmay claim similar relaxation.

4. The advertisement in question was issued on 19.12.2017 andthe last date for filling up applications online was 05.01.2018. The agelimit as prescribed in the advertisement was 28 years for unreservedcandidates but the age limit could be relaxed upto 40 years as statedGabove. The aforesaid Writ Petition was filed by the Respondents on02.01.2018 and was dismissed by the Single Judge of the High Court on04.01.2018 with following observations:- “It is the case of the petitioners that they have been workingwith the first respondent Corporation through an outsourcing H

agency since 2010. They passed ITI and completed NationalApprenticeship Certificate (Electronic Mechanical Trade) in ECILonly. While so, the second respondent issued Notification No. 38of 2017 for the recruitment to the post of Tradesman-B (WG-III)in different Trades. The last date for submission of applicationsthrough online is 05.01.2018. The upper age limited prescribed is28 years as on 30.11.2017. However, the relaxation of maximumage limit is allowed up to 40 years for those who worked or workingwith ECIL as Senior Artisan/Junior Artisan with ITI qualificationplus NAC or ITI qualification plus experience of tenure basedcontract. The present Writ Petition is filed seeking extension ofthe same benefit of age relaxation to the petitioners also, as theyworked through an outsourcing agency.

The notification was issued long back and the applications weresought to be accepted from 20.12.2017. Though there is somegrievance to be redressed in relation to the petitioners, since theprocedure for acceptance of applications is through online basis,no relief can be granted to the petitioners who approached thisCourt at the last moment seeking relaxation of age limit. Obviously,the software so far developed does not accept the applicationswhich did not contain any code number which is available for thepersons who worked or working with ECIL on tenure basedcontract. In the circumstances, no relief can be granted to thepetitioners.

The Writ Petition is, accordingly dismissed at the admissionstage. There shall be no order as to costs.

As a sequel thereto, the miscellaneous petitions, if any, pendingin this Writ Petition shall stand closed.”

5. The Respondents, being aggrieved, challenged the decision ofthe Single Judge by filing Writ Appeal No. 94 of 2018. A counter affidavitwas filed on behalf of the Appellants in said Writ Appeal submitting:- “……that in Electronics Corporation of India Limited there aretwo types of contract employees. The first category is thoseemployees who are directly employed by ECIL, who work forsome time and for whom an employee code is allotted and aService Certificate will also be given by ECIL. The Corporation A

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Ahas an employer and employee relationship with such employeesfor the period of contract. The second category is those employeeswho are engaged through Manpower Supplying Agencies, whowork in short durations in projects undertaken by ECIL. For suchemployees no employee code will be allotted and the Corporationdoes not issue any Service Certificate to those employees, theyBbeing the employees of the Manpower Supplying Agencies. TheCorporation engages hundred of such employees through theManpower Supplying Agencies depending upon the temporaryneed. With such employees there is no employer and employeerelationship with the Corporation and they work as per the termsCand conditions of their employer i.e. Manpower Supply Agency,with whom they are employed as per the advertisement issued bythe Corporation the first category of employees are eligible forage relaxation, but the second category of employees are notentitled to such age relaxation and since the appellants hereinbelong to the second category, they are not entitled to claim anyDage relaxation in this case. If age relaxation to those appellants isextended, then there will be hundreds of such applicants, who areemployed through Manpower Supply Agency and they also willseek such age relaxation and in such a case it will be difficult forthe Corporation to conduct selection.”

E6. The Division Bench of the High Court by its judgment andorder dated 08.03.2018 allowed the appeal and passed followingdirections:-

“In view of the above, we are of the considered opinion that thepetitioners are entitled to be considered for the posts in questionFand also entitled for the age relaxation up to the age of 40 years.Consequently, we hereby set aside the order dated 04.01.2018passed in WP No.382 of 2018. Accordingly, the Writ Appeal isallowed.

Consequently, the respondents shall permit the petitioners toGparticipate in the selection process to be conducted on 11.03.2018.The petitioners are directed to file their applications by tomorrow5 PM.”

7. The decision of the Division Bench of the High Court is presentlyunder appeal. While issuing notice, the operation and implementation ofH

ELECTRONIC CORPORATION OF INDIA LTD. v. M. SHIVANI[UDAY UMESH LALIT, J.]

judgment and order under appeal was stayed. Though the service waseffected on the Respondents, none entered appearance on their behalfand the matter was repeatedly adjourned to enable the Respondents toenter appearance and contest the matter, as is clear from the following:-

a) On 30.11.2018 it was recorded that, according to the officereport, the Respondents had been served in the matter andby way of last chance the matter was directed to be listed on07.12.2018.

b) On 07.12.2018 since none had entered appearance, freshnotices were directed to be issued. In addition, dasti servicewas also permitted.

c) On 18.02.2019 the matter was called and this Court noticedthat according to the office report dated 16.02.2019Respondents were served in the matter and yet none hadappeared on their behalf. It was, therefore, directed:- “By way of last chance, we adjourn the matter to 05.03.2019.If the respondents choose not to enter appearance, the mattershall be disposed of ex-parte on the next date of hearing.”

Despite repeated opportunities, the Respondents have chosen notto appear. We, therefore, proceed with the matter ex-parte.

8. Two features emerge in the matter. First is about the nature ofengagement of the Respondents. The record indicates that they wereengaged through an outsourcing agency. Going by the terms of theadvertisement the Respondents were, therefore, not entitled to have anyage relaxation. Secondly, the advertisement was issued on 19.12.2017and the last date for submission of applications was 05.01.2018.Challenge itself was raised by the Respondents by filing Writ PetitionNo.382 of 2018 on 02.01.2018. The Single Judge of the High Courtwas, therefore, right and justified in rejecting the challenge. By the timethe matter came up before the Division Bench, the period was alreadyover. The Division Bench did not consider the submissions whether theRespondents could, as a matter of right, claim relaxation in age limit.Without considering said aspect of the matter, the Division Benchproceeded to pass the directions as quoted above.

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528SUPREME COURT REPORTS

[2019] 3 S.C.R.

A9. Having gone through the record, in our view, the assessmentmade by the Division Bench was completely incorrect. We, therefore,allow this appeal, set aside the judgment and order under appeal andrestore the order dated 04.01.2018 passed by the Single Judge of theHigh Court in Writ Petition No.382 of 2018.

B10. No order as to costs.

Kalpana K. Tripathy

Appeal allowed.

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