Ramesh Ranganathan, CJ
1. Application to condone the delay of 17 days in preferring this Special Appeal is not opposed and the delay is, therefore, condoned. Delay
Condonation Application stands disposed of.
2. This Special Appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 560 of 2017 dated 25.09.2019.
3. The appellant-writ petitioner was appointed, on a part-time basis, with the second respondent in the year 2008. An advertisement was issued by the
second respondent on 26.05.2016 for appointment to the post of Junior Technical Superintendent (Physiotherapist) wherein the maximum age, for the
said post, was prescribed as 32 years. Though the appellant-writ petitioner applied for the said post, her candidature was rejected on the ground that
she exceeded the maximum age limit of 32 years.
4. The appellant-writ petitioner herein contended, before the learned Single Judge, that, since an employee would include a contractual employee also,
and as the appellant-writ petitioner had rendered services with the second respondent for more than eight years, the maximum age limit can be relaxed
upto 40 years for departmental candidates, with three years’ continuous service, in terms of the Office Memorandum dated 27.03.2012; and,
therefore, the appellant-writ petitioner should be granted age relaxation.
5. In the order under appeal, the learned Single Judge noted the stand of the respondent-Institute that relaxation can only be granted to those who have
been appointed through a due process of selection; the appellant-writ petitioner was not appointed by any such process; the instructions, issued in the
Office Memorandum dated 27.03.2012, are applicable only to Central Government employees holding civil posts, and not to employees working in
autonomous/statutory bodies/public sector undertakings which are governed by Regulations/Statutes issued by the concerned administrative Ministries;
the IIT, Roorkee is an autonomous body and, therefore, the said Office Memorandum was not applicable to it; in the advertisement dated 04.11.2016
relaxation of age is permissible only for candidates belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes, and for
persons working in the IIT, Roorkee, on compassionate grounds, on fixed monthly emoluments; the judgments in Union Public Service Commission v.
Dr. Jamuna Karup and Others : (2008) 11 SCC 10 and All India Institute of Medical Sciences v. Ruchika Madan (Order of the Delhi High Court in
Writ Petition (Civil) No. 9816 of 2015) were not applicable; the appellant-writ petitioner was working as a Junior Assistant (Physiotherapist) since
2008 on a part-time basis; while she had pleaded that she was appointed against an advertised post, no copy of the advertisement was annexed; the
respondents had specifically denied that the appellant-writ petitioner was engaged on a contractual basis against an advertised post, and since the
appellant-writ petitioner was working in the said post without any advertisement having being issued, she was not entitled for any relaxation.
6. The learned Single Judge also noted the stand of the respondents based on acquiescence, and thereafter opined that the appellant-writ petitioner had
failed to make out a case, conferring any right on her, to claim age relaxation; she was not appointed through a due process of selection on
applications being invited by way of an advertisement, and she was merely appointed on a part-time basis; as she did not challenge the conditions
stipulated in the advertisement, but had submitted her application form pursuant thereto, she was estopped from challenging the selection process; and,
since the appellant-writ petitioner had made a false statement in the Writ Petition and could not substantiate the same, she was not entitled to claim
any relief.
7. Except to contend, placing reliance on the judgment of the Supreme Court in Union Public Service Commission v. Dr. Jamuna Karup and Others :
(2008) 11 SCC 10, that even contractual employees would fall within the definition of an “employeeâ€, and would be entitled for grant of age
relaxation, the other findings, recorded by the learned Single Judge in the order under appeal, have not been disputed before us. It is true that the
Supreme Court, in Union Public Service Commission v. Dr. Jamuna Karup and Others : (2008) 11 SCC 10, has held that all employees employed by
the Municipal Corporation of Delhi, whether permanent or contractual, would be its employees; and contractual employees, who were also the
employees of the Municipal Corporation of Delhi, were entitled to the benefit of age relaxation.
8. In the present case the advertisement issued by the IIT, Roorkee itself prescribes those categories to which alone age relaxation is permissible. The
IIT, Roorkee has confined grant of age relaxation only to certain categories, and not to all contractual employees, but only to those who were engaged
on a contractual basis on fixed monthly emoluments, and were selected through an open advertisement and by a duly constituted Selection Committee.
The appellant-writ petitioner has not placed any documentary evidence on record to show that her contractual appointment, albeit on a part-time basis,
was pursuant to any such advertisement; and as she did not fall within the criteria stipulates in the advertisement for contractual employees, the
respondent-Institute cannot be said to have committed any illegality in not extending to her the benefit of age relaxation.
9. The decision, whether or not to grant relaxation of age, is for the employer to take, and not for this Court to stipulate, that too in the exercise of its
extraordinary jurisdiction under Article 226 of the Constitution of India. While contractual employees may also fall within the definition of an
“employeeâ€, in the present case the respondent-Institute has not extended the benefit of age relaxation in the advertisement issued by it to all
categories of employees, but only to a few of them including those appointed on a contractual basis through a regular process of selection, and
pursuant to an advertisement. The appellant-writ petitioner, admittedly, does not fall under any of such categories.
10. Interference in an intra-Court appeal is justified only if the order under appeal suffers from a patent illegality. We find no such infirmity in the
order under appeal.
11. The Special Appeal fails and is, accordingly, dismissed.
No costs.
