Delhi High Court - Orders
Union Of India And Others vs Shri Rajinder Kumar on 20 December, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Anoop Kumar Mendiratta
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 416/2009
UNION OF INDIA AND OTHERS ..... Petitioners
Through: Mr. Ripu Daman Bhardwaj, CGSC for
UOI with Mr. V.P. Thakur, Regional
Director.
versus
SHRI RAJINDER KUMAR ..... Respondent
Through: Mr. Nilansh Gaur and Mr. Rajesh
Sachdeva, Advocates.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
% 20.12.2022
1. This petition has been filed by the UOI & Ors. challenging the order dated June 03, 2008 of the Central Administrative Tribunal (in short 'Tribunal'), whereby the Tribunal has allowed the Original Application being OA No. 531/2007, filed by the respondent herein, directing the petitioners to consider the claim of the respondent as an exception and one time measure in the light of the decision of the Supreme Court in Secretary, State of Karnataka & Ors. vs. Uma Devi (3) & Ors., 2006(4) SCC 1, for regularization by a speaking order.
2. The facts as noted from the record are that the respondent had joined the office of the Development Commissioner, Handicrafts, as an Assistant Design Artist ('ADA', in short) on December 23, 1988. He continued to work on the said post till he attained the age of superannuation, in the month of May, 2021. In effect, he had worked on the post of ADA for approximately 33 years. He filed the Original Application in the year 2008, before the Tribunal making a prayer for regularization. It was his case that, Signature Not Verified Digitally Signed W.P.(C) 416/2009 Page 1 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40 his name featured in the seniority list of ADA. He states that he has been performing his duties as a regular employee. The All India Handicrafts Board Regional Design Centre's (Class-III & Class-IV Posts) Recruitment Rules, 1971, framed under Proviso to Article 309 of the Constitution of India, contemplate the post of ADA to be filled by Direct Recruitment, with eligibility of Matriculation and Diploma in Fine Arts. It is the conceded case of the parties that the respondent fulfills the eligibility criterion for the post under the Recruitment Rules. It is also noted that the initial engagement of the respondent was pursuant to sponsorship made by the Employment Exchange. He appeared in the test/interview on September 20, 1988. He was offered the appointment on October 04, 1988, on ad hoc basis with probation of two years. It is also noted that the respondent was otherwise overage by two years on the date of his appointment. In any case, he joined the post in question on October 4, 1988. Since then he continued to work on the same post till he attained the age of superannuation in May, 2021. It is relevant to state here that the Tribunal in Paragraph 4 of the impugned judgment, noted the fact that, during the discussion with the Director, it transpired that the Recruitment Rules in vogue, have not been found to be practical, as it is impossible to get an Artist within the age limit of 25 years with Five years Diploma in Arts and experience as well. Accordingly, a proposal was mooted to amend the rules, which was cleared up to the level of Director. But, no final decision on the aforesaid was taken. It is also noted the Recruitment Rules, in terms of Proviso to Rule 4 contemplate that the upper age limit prescribed for Direct Recruitment can be relaxed in case for the candidates belonging to Schedule Caste, Schedule Castes and other special categories, in accordance with the orders issued by the Central Signature Not Verified Digitally Signed W.P.(C) 416/2009 Page 2 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40 Government from time to time. It is also noted that Rule 6 empowers the Central Government, if in its opinion, it is necessary and expedient to do so, it may by order and for reasons to be recorded in writing relax any of the provisions of the rules with respect to any class or category of persons / posts.
3. The Tribunal while allowing the Original Application, has in paragraphs 15 to 26, held as under:
"15. Though, it is trite law that regularization cannot be a mode for appointment to government servant yet the concept of regularization has been made clear by the Apex Court In Uma Devi's case' (Supra). Ad hoc officiation de hors the rules has not been found to have bestowed an incumbent with an indefeasible right to be regularized. The entire process of the recruitment has to be undergone as per the statutory rules framed under Proviso to Article 309 of the Constitution of India. However, an exception carved out is that those ad hoc appointees who had continued after being appointed irregularly under the rules for more than 10 years as one time measure, they shall be considered for regularization by the Government.
16. In the instant case, as prior to the selection held in 1988 as the recruitment rules have not been found practicable in so far as eligibility criteria laid down for the post of ADA, a proposal made to amend the recruitment rules to enhance the age of appointment, though cleared up to the level of Director has not fructified into an amendment of the rules. As a result, the recruitment rules 1971 are still in vogue. As per the recruitment rules, the maximum age of appointment is 25 years for the post of ADA.
17. Applicant in those circumstances, when sponsored by the Employment Exchange despite his age was known to the authorities as disclosed in his particulars yet he was allowed to participate in the selection and on being declared qualified was selected by the duly constituted the Staff Selection Committee as per the statutory rules. However, simultaneously offering an ad hoc appointment to the applicant, the recruitment rules have been proposed to be modified. Later on, the offer of appointment sent to the applicant shows his ad hoc temporary appointment till Signature Not Verified Digitally Signed W.P.(C) 416/2009 Page 3 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40 further orders but with a probation of two years and the appointment was made subject to relaxation of age. However, the records do not show any process undertaken by the respondents to seek relaxation of age but as the applicant was continued for an indefinite term of 20 years in the instant case, there has to be a presumption of implied relaxation of age. Moreover, statutory rules provide relaxation in age, if found, expedient in the opinion of the Central Government.
18. In our considered view, as supported by the decision of the Apex Court in FCI Vs Bhanu, 2005 SCC (L&S) 433 held that once power to relax the maximum age limit is laid down, it has to be exercised in marginal cases where exceptionally qualified candidates are available. It is also trite that an ad hoc appointee though has no indefeasible right but cannot be placed on probation, as the applicant was placed on probation after being appointed through regular selection committee, there has to be a presumption in law for his deemed confirmation after the maximum period of probation has been successfully completed.
19. Coupled with the facts that the applicant's service has not been dispensed with and he had been continued in the very nature of appointment by virtue of a clause of further orders in his offer of appointment partakes the character of a regular appointment. It is not the case of the respondents that the applicant was lacking in any manner in the eligibility qualifications or has not qualified the selection. Accordingly, being eligible in all respects except the age, the very appointment of the applicant and subsequent events whereby despite proposal, amendment has not been carried out in the recruitment rules to increase the age, yet the appointment which was made subject to relaxation, if continued for more than 20 years, this relaxation has to be deemed in the present case.
20. There is another aspect of the matter which is to be examined is that all other incumbents of the posts in the cadre of ADA have been appointed in the similar manner being over aged and on deemed relaxation or by specific relaxation have been regularized. Though the applicant has taken a specific plea of discrimination, yet the aforesaid has not been rebutted specifically. In our considered view, once the incumbents are situated equally, cannot be imparted unequal treatment, which Signature Not Verified Digitally Signed W.P.(C) 416/2009 Page 4 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40 shall be an antithesis to the principle of equality enshrined under Article 14 of the Constitution of India.
21. The concept of negative equality would not be applicable in the instant case as by a deemed act of relaxation, relaxation of the juniors of the applicant when they were over aged and a stipulation in case of offer of appointment of the applicant in the context of relaxation of age once has not followed, yet has to be deemed.
22. In the matter of regularization also, principle of equality has application, as ruled by the Apex Court in UPSEB Vs Pooran Chandra Pandey, 2007 (12) SCALE 304.
23. Respondents cannot approbate and reprobate simultaneously. Being a model employer, fairness is a sin qua non of .their action. Having appointed the applicant in whatever nomenclature, yet continuing the applicant for 20 years and deeming him as a substantive member of the service by including his name in the seniority list, an interference has to be drawn that the applicant has been accorded relaxation in age and was treated at par with the regular employee. Had there been a mistake in the seniority list, this would have been withdrawn. However, subsequent seniority list of 2004 has not incorporated the name of the applicant.
24. Legitimate expectation though is not a substantive right as ruled in Uma Devi's case (supra), yet it is a test to check, arbitrariness, as held by the Apex Court in State of Bengal Vs Niranjan Singha, 2001 (2) SCC 326.
25. Applicant who has been allowed to continue for almost 20 years, it will not be fair for the respondents to take a plea of his illegal appointment when on a conscious decision by the selection committee, applicant was appointed and subject to relaxation was continued for such a long period. No doubt, the age of appointment was above 25 years, yet the recruitment rules allow on relaxation appointment of an over aged person, keeping in view the administrative exigencies. There is no attribution of the applicant, yet on a deliberate omission on the part of the respondents not to have processed the case of the applicant for relaxation under the statutory rules. Accordingly, the statutory rules do not forbid appointment of an over aged person but on Signature Not Verified Digitally Signed W.P.(C) 416/2009 Page 5 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40 relaxation. If it is so, then appointment of applicant cannot be treated as illegal with the attending circumstances. This would attract the exception carved out in Uma Devi's case (supra).
26. Though sympathy is not a valid consideration in law but equity has a role to play. Having continued the applicant in the definite pay scale for a period-of almost 20 years, his non-regularization when juniors have been regularized in an identical situation is neither fair nor reasonable."
4. Today, even before us, the only submission made by Mr. Ripu Daman Bhardwaj, is that the respondent being overage at the time of initial appointment in the year 1988, his appointment was illegal and as such, he cannot be regularised. He states that the issue of regularisation of the respondent was considered by the DoP&T as late as May, 2022, but opined that the respondent having been appointed after two years beyond the age limit as prescribed in the Recruitment Rules, the regularisation shall be contrary to the judgment of the Supreme Court in Uma Devi (supra). He states, in view of the position of law, the respondent could not have claimed regularisation, which is not a mode of appointment, as a matter of right. He states, the appointment being illegal and not irregular, the benefit of the judgment of the Supreme Court in Uma Devi (supra) cannot be given to him.
5. He does not dispute the fact that, since his appointment in 1988, he continued to work till he attained the age of superannuation in May, 2021. He also concedes to the fact that except GPF, no other benefit has been given to the respondent on his demitting the office.
6. The submissions of Mr. Bhardwaj are contested by Mr. Nilansh Gaur, the learned counsel for the respondent, by stating that the respondent having been appointed in the year 1988, and in terms of the judgment of the Supreme Court in the case of Uma Devi (supra), which was rendered in the year 2006 Signature Not Verified Digitally Signed W.P.(C) 416/2009 Page 6 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40 and in terms of paragraph 53 thereof, where the Supreme Court has stated as under, requires the petitioners' case to be considered for regularisation as one time measure.
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
He also states that the respondent being overage at the time of his initial appointment, the same was irregular and not illegal. The said aspect could have been taken care of by the petitioners by exercising the power to relax in terms of the rules. He also states that there was enough justification for the petitioners to appoint the respondent as ADA in the year 1988, which aspect Signature Not Verified Digitally Signed W.P.(C) 416/2009 Page 7 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40 has been noted by the Tribunal in Para 16 of the judgment. In other words, the appointment of the respondent was the requirement / necessity of the petitioners.
7. Under the circumstances, the petitioners could not have made the appointment of the respondent, ad hoc and retire him without retiremental benefits under the rules. According to him, the appointment had all the features of a regular appointment and he was discharging duties as such. He justify the directions given by the Tribunal. He relies on the following Judgments in support of his case:-
(i) Union of India & Ors. Vs. Sant Lai & Ors., CA No. 175/2019.
(ii) S.N Nagar & Ors. Vs. State of U.P. & Anr. 2018(13) SCC 432.
(iii) N.K. Tiwari Vs. State of Jharkhand, CA No. 7423/2018.
8. Having considered the rival submissions made by the learned counsel for the parties, this Court is of the view that the Tribunal is justified, in the facts of this case, to give directions in the manner given in the impugned judgment. There is no dispute that the respondent was appointed in the year 1988, though he was overage. He continued to work as ADA since then, till he attained the age of superannuation in May, 2021, after putting almost thirty three years of service, which otherwise make an employee eligible for the full pension. He approached the Tribunal in the year 2007 as his services were not regularized. On the date he approached the Tribunal, he had put in nineteen years of service. It is the conceded case of the petitioners that, except that the respondent was overage by two years, he fulfilled all the eligibility conditions under the Recruitment Rules, which contemplate the post to be filled up through Direct Recruitment.
9. We find the Tribunal has in paragraph 16 of the impugned Judgment Signature Not Verified Digitally Signed W.P.(C) 416/2009 Page 8 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40 noted the fact that prior to the selection of the respondent in the year 1988, as the Recruitment Rules have not been found practicable in so far as the eligibility criteria laid down for the post of ADA, a proposal was mooted to amend the Recruitment Rules to enhance the age of appointment which was cleared up to the level of Director. But the same had not fructified as an amendment per se. The Tribunal also noted the fact that the respondent was sponsored by the Employment Exchange. The authorities despite the respondent disclosing his age, allowed him to participate in the selection process conducted by a duly constituted Selection Committee, and he having qualified the selection process, appointed him on ad hoc basis. The offer of appointment issued to the respondent also stipulates as under:
"(viii) His / her appointment is on purely ad hoc basis subject to relaxation of age / qualification is granted by the government."
10. The aforesaid condition of relaxation of age appears to have been put by the petitioners knowing that the respondent was overage and also, the Rule 6 empowers the Central Government to relax any of the provisions of the Rules. It is not known whether the case of the respondent was placed before the Central Government seeking relaxation in his age. Surely inability on the part of the petitioners to seek orders cannot be to the prejudice of the respondent. In any case, he continued to work as ADA, till 2021, when he demitted the post without getting retiremental benefits. This is only for the reason, his appointment was ad hoc and not regular. There is no dispute that the respondent had completed ten years of service in the year 1998. The relevance of 10 years, is in the context of Para 53 of the judgment of the Supreme Court in the case of Uma Devi (supra), which we have reproduced Signature Not Verified Digitally Signed W.P.(C) 416/2009 Page 9 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40 in paragraph 5 above.
11. The issue, now requires to be considered is whether, the fact that the respondent was overage by two years at the time of appointment in the year 1988, his appointment was illegal or irregular, as finding in this regard shall have a bearing on the relief of regularization, granted by the Tribunal.
12. In the case in hand, the respondent has the qualification for the post of ADA and the post has to be filled through direct recruitment. It is not the case of the petitioners that there were no vacancies. The aspect of overage with power to relax surely shall make the appointment irregular and not illegal. It is also not the case of the petitioners that the respondent had put in ten years of service on the strength of any stay order granted by any Court of law. So, it follows, the respondent shall be entitled to the benefit of paragraph 53 of the judgment of the Supreme Court in the case of Uma Devi (supra).
13. We have also seen the advice / letter / opinion tendered by the DoP&T, Govt. of India dated May 31, 2022, wherein the following is stated: -
"Reference: Ministry of Textiles (MoT) ID File No. C-18013/9(91)/ 2007-LC-Pt.dated 26.04.2022 MoT may refer to their ID Note dated 26.04.2022 regarding proposal seeking relaxation in upper age limit prescribed in the Recruitment Rules for regularisation of services of Shri Rajinder Kumar in the grade of Assistant Design Artist, under the office of Development Commissioner (Handicrafts) w.e.f. 23.12.1988 in pursuance of Hon'ble High Court Order.
2. In this regard it is mentioned that a Constitution bench of the Supreme Court in Civil Appeal No. 3595-3612/1999 etc. in the case of Secretary State of Karnataka and Ors. Vs Uma Devi and Others (2006) has reiterated that any public appointment has to be in terms of the Constitutional scheme. However, the Supreme Court in Para 44 of the aforesaid judgment dated 10.04.2006 had directed that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime Signature Not Verified Digitally Signed W.P.(C) 416/2009 Page 10 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40 measure the services of such irregularly appointed, who are duly qualified persons in terms of the statutory recruitment rule for the post and who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or tribunals. The Apex Court has also clarified that if such appointment itself is in infraction of the rules or if it is violation of the provisions of the Constitution, illegality cannot be regularized. Further, in the instant case, Shri Rajinder Kumar has been appointed after two years, beyond the age limit as prescribed in the Recruitment Rules (i.e. 21-25 years) for the post of Assistant Design Artist, which is contrary to the statutory recruitment rules and therefore regularization of such type of appointment would be contrary to the abovementioned judgment.
3. No compelling reasons or grounds have been mentioned appointing an over-aged person in the referral Note by the Department, and why the irregular appointment needs to be regularized. As such, the proposal of Ministry of Textiles cannot be acceded to. Further, the responsibility should also be fixed on the erring official who made his appointment beyond the prescribed age-ceiling.
4. The File is returned herewith."
14. The above reveals that, it is only in 2022, when he was on the verge of attaining the retirement age that a reference was made to DoP&T seeking relaxation in upper age limit under the recruitment rules. The same was not acceded to, on the ground that the appointment of the respondent was beyond the age limit prescribed under the recruitment rules and as such illegal. But, the above reveals that the DoP&T has not dealt with the stipulation, which empowers the Central Government to relax the provisions of the Rules, including the relaxation of upper age limit. Surely, the facts reveal that the appointment having been made thirty three years back, which was allowed to continue, it is too late in the day for the petitioners to contend that the appointment was illegal. The conclusion in that regard is clearly untenable / arbitrary.
Signature Not VerifiedDigitally Signed W.P.(C) 416/2009 Page 11 By:DINESH CHANDRA Signing Date:23.12.2022 14:45:40
15. In view of above discussion, it is held, the order of the Tribunal is justified. This Court, in the peculiar facts of this case, refuses to exercise its jurisdiction under Article 226 of the Constitution of India. The writ petition is liable to be dismissed. It is ordered accordingly.
16. No costs.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J.
DECEMBER 20, 2022/akc
Signature Not Verified
Digitally Signed W.P.(C) 416/2009 Page 12
By:DINESH CHANDRA
Signing Date:23.12.2022
14:45:40