CIVIL APPEAL NO.2560 OF 2019  The Electronic Corporation of India Limited and Anr vs. M. Shivani and Anr.                                       1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2560 OF 2019

THE ELECTRONIC CORPORATION OF INDIA LTD.          …Appellants AND ANR.           

VERSUS

M. SHIVANI AND ANR.       …Respondents

J U D G M E N T

 Uday Umesh Lalit, J.

1. This  appeal  challenges  the  correctness  of  the  judgment  and  order

dated 08.03.2018 passed by the High Court of Judicature at Hyderabad for the

State of Telangana and the State of Andhra Pradesh in Writ Appeal No.94 of

2018.

CIVIL APPEAL NO.2560 OF 2019  The Electronic Corporation of India Limited and Anr vs. M. Shivani and Anr.                                       2

2. The matter arises out of Writ Petition No.382 of 2018 filed by the

Respondents  in  the  High  Court  submitting  inter  alia  that  they  had  been

working with the Appellant-Corporation through an outsourcing agency since

2010;  that  they  had  passed  ITI  and  completed  National  Apprenticeship

Certificate in the Appellant-Corporation itself; that the Appellant had issued

Notification No.38 of 2017 for recruitment to the posts of Tradesman-B (WG-

III) in different trades; that the upper age limit was prescribed as 28 years as

on 30.11.2017; that there was relaxation in the age limit upto 40 years for

those who had worked or were working with the Appellant-Corporation as

Senior  Artisan/Junior  Artisan  with  ITI  qualification  plus  NAC  or  ITI

qualification plus experience of tenure based contract.  It was the submission

of the Respondents that they were seeking similar extension of benefit of age

relaxation as they had worked through an outsourcing agency.

3. In the affidavit-in-reply by the Appellant-Corporation it  was stated

that 3064 applications were received pursuant to the Notification to fill up 40

posts and that the request of the Respondents could not be considered as it

would have had a cascading effect as many similarly situated candidates, who

had  been  working  through  outsourcing  agencies,  may  claim  similar

relaxation.

CIVIL APPEAL NO.2560 OF 2019  The Electronic Corporation of India Limited and Anr vs. M. Shivani and Anr.                                       3

4. The advertisement in question was issued on 19.12.2017 and the last

date  for  filling  up  applications  online  was  05.01.2018.   The  age  limit  as

prescribed in the advertisement was 28 years for unreserved candidates but

the age limit could be relaxed upto 40 years as stated above.  The aforesaid

Writ Petition was filed by the Respondents on 02.01.2018 and was dismissed

by  the  Single  Judge  of  the  High  Court  on  04.01.2018  with  following

observations:-

“It is the case of the petitioners that they have been working with the first respondent Corporation through an outsourcing  agency  since  2010.   They  passed  ITI  and completed  National  Apprenticeship  Certificate (Electronic Mechanical Trade) in ECIL only.  While so, the second respondent issued Notification No. 38 of 2017 for the recruitment to the post of Tradesman-B (WG-III) in  different  Trades.   The  last  date  for  submission  of applications through online is 05.01.2018.  The upper age limited  prescribed  is  28  years  as  on  30.11.2017. However, the relaxation of maximum age limit is allowed up to 40 years  for  those who worked or  working with ECIL  as  Senior  Artisan/Junior  Artisan  with  ITI qualification  plus  NAC  or  ITI  qualification  plus experience  of  tenure  based contract.   The  present  Writ Petition is filed seeking extension of the same benefit of age  relaxation  to  the  petitioners  also,  as  they  worked through an outsourcing agency.  

The  notification  was  issued  long  back  and  the applications were sought to be accepted from 20.12.2017. Though  there  is  some  grievance  to  be  redressed  in relation  to  the  petitioners,  since  the  procedure  for acceptance  of  applications  is  through  online  basis,  no

CIVIL APPEAL NO.2560 OF 2019  The Electronic Corporation of India Limited and Anr vs. M. Shivani and Anr.                                       4

relief can be granted to the petitioners who approached this Court at the last moment seeking relaxation of age limit.  Obviously, the software so far developed does not accept the applications which did not contain any code number which is available for the persons who worked or working  with  ECIL on  tenure  based  contract.   In  the circumstances, no relief can be granted to the petitioners.

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

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

5. The  Respondents,  being  aggrieved,  challenged  the  decision  of  the

Single Judge by filing Writ Appeal No. 94 of 2018.  A counter affidavit was

filed on behalf of the Appellants in said Writ Appeal submitting:-

“……that  in  Electronics  Corporation of  India  Limited there  are  two  types  of  contract  employees.   The  first category is those employees who are directly employed by  ECIL,  who  work  for  some  time  and  for  whom an employee code is allotted and a Service Certificate will also be given by ECIL.  The Corporation has an employer and employee relationship with such employees for the period  of  contract.   The  second  category  is  those employees  who  are  engaged  through  Manpower Supplying  Agencies,  who  work  in  short  durations  in projects  undertaken by ECIL.   For  such employees  no employee code will be allotted and the Corporation does not issue any Service Certificate to those employees, they being  the  employees  of  the  Manpower  Supplying Agencies.   The  Corporation  engages  hundred  of  such employees  through  the  Manpower  Supplying  Agencies depending  upon  the  temporary  need.   With  such

CIVIL APPEAL NO.2560 OF 2019  The Electronic Corporation of India Limited and Anr vs. M. Shivani and Anr.                                       5

employees  there  is  no  employer  and  employee relationship with the Corporation and they work as per the terms and conditions of their employer i.e. Manpower Supply Agency, with whom they are employed as per the advertisement issued by the Corporation the first category of  employees  are  eligible  for  age  relaxation,  but  the second category of employees are not entitled to such age relaxation and since the appellants herein belong to the second category,  they are not entitled to claim any age relaxation  in  this  case.   If  age  relaxation  to  those appellants  is  extended,  then  there  will  be  hundreds  of such applicants,  who are  employed through Manpower Supply  Agency  and  they  also  will  seek  such  age relaxation and in such a case it will be difficult for the Corporation to conduct selection.”

6. The Division Bench of  the  High Court  by  its  judgment  and order

dated 08.03.2018 allowed the appeal and passed following directions:-

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

Consequently,  the  respondents  shall  permit  the petitioners  to  participate  in  the  selection  process  to  be conducted on 11.03.2018.  The petitioners are directed to file their applications by tomorrow 5 PM.”

7. The decision of  the Division Bench of the High Court  is  presently

under  appeal.   While  issuing  notice,  the  operation  and  implementation  of

CIVIL APPEAL NO.2560 OF 2019  The Electronic Corporation of India Limited and Anr vs. M. Shivani and Anr.                                       6

judgment  and  order  under  appeal  was  stayed.   Though  the  service  was

effected on the Respondents, none entered appearance on their behalf and the

matter  was  repeatedly  adjourned  to  enable  the  Respondents  to  enter

appearance and contest the matter, as is clear from the following:-

a) On 30.11.2018 it  was recorded that,  according to the office

report, the Respondents had been served in the matter and by

way of  last  chance  the  matter  was  directed  to  be  listed  on

07.12.2018.

b) On  07.12.2018  since  none  had  entered  appearance,  fresh

notices were directed to be issued.  In addition, dasti service

was also permitted.

c) On 18.02.2019 the matter was called and this Court noticed

that  according  to  the  office  report  dated  16.02.2019

Respondents  were  served  in  the  matter  and  yet  none  had

appeared 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 matter shall be disposed of ex-parte on the next date of hearing.”

Despite repeated opportunities,  the Respondents have chosen not to

appear.  We, therefore, proceed with the matter ex-parte.

CIVIL APPEAL NO.2560 OF 2019  The Electronic Corporation of India Limited and Anr vs. M. Shivani and Anr.                                       7

8.  Two  features  emerge  in  the  matter.   First  is  about  the  nature  of

engagement  of  the  Respondents.   The  record  indicates  that  they  were

engaged  through  an  outsourcing  agency.   Going  by  the  terms  of  the

advertisement the Respondents were, therefore, not entitled to have any age

relaxation.  Secondly, the advertisement was issued on 19.12.2017 and the

last date for submission of applications was 05.01.2018.  Challenge itself

was raised by the Respondents by filing Writ Petition No.382 of 2018 on

02.01.2018.  The Single Judge of the High Court was, therefore, right and

justified in rejecting the challenge.  By the time the matter came up before

the Division Bench, the period was already over.  The Division Bench did

not consider the submissions whether the Respondents could, as a matter of

right, claim relaxation in age limit.  Without considering said aspect of the

matter, the Division Bench proceeded to pass the directions as quoted above.

9. Having gone through the record, in our view, the assessment made by

the  Division  Bench  was  completely  incorrect.   We,  therefore,  allow this

appeal, set aside the judgment and order under appeal and restore the order

dated  04.01.2018 passed by the Single  Judge of  the  High Court  in  Writ

Petition No.382 of 2018.

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10.  No order as to costs.

…..…..…..……..……J.                                                                                        (Uday Umesh Lalit)

 ...……….……………J.

                                              (Indu Malhotra) New Delhi, March 08, 2019.