Holding

Where service rules prescribe an upper age limit and contain no provision for exemption, the employer cannot be compelled to grant such exemption, and the denial does not constitute invidious discrimination.

Summary

The employees, who were former nominal muster‑roll (NMR) workers, were appointed as Attenders under a circular that gave preference to ex‑employees. Verification revealed they were over the age limit of 28 years prescribed by the Tirumala Tirupati Devasthanams Employees Service Rules, 1989, and they were terminated. The High Court set aside the termination on procedural grounds and later reinstated them, holding that earlier exemptions granted by the employer amounted to invidious discrimination and that the employer should be compelled to consider an exemption. The Supreme Court held that the service rules expressly bar persons over the age limit from direct recruitment, provide no power to grant exemptions, and that past discretionary concessions do not create a legal right; consequently, denial of exemption does not constitute discrimination and a writ of mandamus cannot be issued in the absence of a statutory duty. The Court set aside the High Court orders and dismissed the writ petition, allowing the appeal.

Issues considered

Whether the employer can be compelled to grant an exemption from the statutory age limit for direct recruitment under the service rules.
Whether the denial of such exemption amounts to invidious discrimination violating equality principles.
Whether a writ of mandamus is appropriate where no statutory duty exists to grant exemption.

Legislation cited

Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987

Subjects

service lawterminationage limitexemptiondiscriminationwrit of mandamusservice rulesdirect recruitmentstatutory duty

Judgment

TIRUMALA TIRUPA Tl DEVASTHANAMS A
~"
v.
K. JOTHEESWARA PILLAI (D) BY LRS. AND ORS.

MAY 03, 2007

(G.P. MATHUR AND A.K. MATHUR, JJ.] B

Sen1ice law-Termination-On the ground that employees were not
eligible for appointment being over-aged-Appointment was given on the
) basis of a Circular giving preference lo ex-employees in appointment-High
Court directing their reinstatement on the ground that by not gra/1/ing
c
exemption from age criterion, employer had indulged in discrimination as on
previous occasions, such exemptions given in other cases-On appeal, held:
There being no statutory provision or rule providing for exemption from
eligibility criterion, employees rightly terminaled-Tirumala Tirupathi
Devasthanams Employees Sen:ice Rules, 1989-r. 11. D
A Circular was issued by the appellant-employer to the effect that in
case of any vacancies, ex-employees should be appointed in order of seniority.
The respondent-employees were appointed as Attenders on the basis of the
Circular, being ex-employees (Nominal Mustor Rolls Employees). After
verification, as the respondents were found to be of overage, their services E
were terminated. The termination was challenged. On the direction of High
Court, respondents were given opportunity to be heard and thereafter again
termination order was passed. The same being challenged, High Court set
aside the order of termination and directed their reinstatement with back
wages on the ground that on two earlier occasions, the employer had granted
F
exemption from age and qualifications and it was not explained by the employer
as to why discretion could not be exercised in the present case. Writ Appeal
was dismissed summarily by the Division Bench of High Court. Hence the
present appeal.

Allowing the appeal, the Court G
HELD: I. I. Tirumala Tirupathi Devasthanams Employees Service Rules,
1989 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.
~
1 H
'
2 SUPREME COURT REPORTS [2007] 6 S.C.R.

A The Rules do not mention anywhere that while making direct recruitment. f-
any services rendered as an NMR employees has to be taken into consideration
or some relaxation in age is to be granted on its basis. The respondents had
worked for a brief period as NMR employees. It was after a gap of more than
six years that they were appointed by way of direct recruitment. Under the
Rules they were clearly ineligible for being given any appointment as
B admittedly they were over-aged. jPara 51 [5-G-H; 6-A)
1.2. The reasons given by the Single Judge of High Court 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 l
of some employees cannot be a ground to grant relief to the writ petitioners.
c 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. [Para 7) [6-D-E)
K. V. Rajalakshmiah Setty and Anr. v. State of Mysore and Anr., AIR
(1967) SC 993, relied on.
D 1.3. The view taken by the Single Judge that by not granting exemption
from age criterion the appellant had indulged in invidious discrimination is
clearly erroneous in law. !Para 7) 17-A)
2. There being no statutory provision or rule providing for exemption
from eligibility criterion, Single Judge of High Court clearly erred in issuing
E a writ of Mandamus against the appellant directing it to consider the case of
respondent for granting him exemption from the rule providing for upper age
limit for fresh appointment. (Para 8) 17-F)
Bihar Eastern Gangetic Fishermen Cooperative Society Ltd v. Sipahi
Singh, AIR (1977) SC 2149, relied on.
F CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7962 of2004.
From the Final Judgment and Order dated 21.01.2003 of the High Court
of Judicature of Andhra Pradesh at Hyderabad in W.A. No. 422 of 1998.
K. Amareswari, B. Sridhar and K. Ram Kumar for the Appellant.
G T. Anamika and T.N. Rao for the Respondents.
The Judgment of the Court was delivered by

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 ,._
H Pradesh High Court by which the writ appeal preferred by the appellant was
TIRUMALA TIRUPATI DEVASTHANAMS ''- K JOTHEESWARA PILLAI (0) BY LRS. [G.P. MATHUR, J.) 3

1 dismissed and the judgment and order dated 20.11.1997 of a learned Single A
Judge by which the writ petition filed by the respondents was allowed with
certain directions, was affirmed.
r
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 i~sucd by B
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
l 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
c
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 D
appellant t-0 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
E
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 F
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: -
G

" .................................. 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 H
4 SUPREME COURT REPORTS [2007] 6 S.C.R.

A the Court for perusal. There is only a reference to that effect in the (

impugned order.

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 I to 4 into service with continuity of service
B 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.l) department, dated 24.10.1989 within a period of one month l

from the date of receipt of a copy of this order. No costs.
c
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.

D 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 Devastham:ms 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
E 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.
F
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: -
G "I.These rules may be called Tirumala Tirupathi Devasthanams
Employees Service Rules, 1989.
2. Th~y 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
H
TIRUMALA TIRUPATI DEVASTHANAMS "· K JOTHEESWARA PILLAI CD) BY LRS [G.P. MATHUR, J] 5

Government or other organizations. A
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 defir.ed in these rules shall B
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-11 if he has completed the age of 28 years C
or the age prescribed therefor in the said Annexure as on the Ist 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 D
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 E
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-11 if he has completed the age of 28 years or the
age prescribed therefor in the said Annexure as on I st July of the year in F
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 G
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 basis. The writ petitioners had worked for a brief
H
6 SUPREME COURT REPORTS [2007] 6 S.C.R.

A 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
B 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

C
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
Governments.

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
D 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 Anr. v. State of Mysore and Anr., AIR (1967) SC 993,
E 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
F 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
G 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."
H
TIRUMALA TIRUPATI DEVASTHANAMS •·. K. JOTHEESWARA PILLAI (D) BY LRS. [G.P. MATHUR. J.) 7
'1 Therefore, the view taken by the learned Single Judge that by not A
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 B
Rules do not make any provision for granting exemption except to the limited
extent as provided in the second para of Rule 1I. The principles, on which
,L
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. v. Sipahi Singh, AIR (1977) SC 2149, where this Court observed
as under: -
c
"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 D
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." E
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. F

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
G
Bench are set aside and the writ petition filed by the contesting respondents
is dismissed.

10. No order as to costs.
..J

K.K.T. Appeal allowed.
H