Central Administrative Tribunal - Delhi
Sh. Ombir Singh vs Union Of India Through on 5 September, 2008
Central Administrative Tribunal Principal Bench OA No.1497/2008 New Delhi, this the 5th day of September, 2008 Honble Dr. Ramesh Chandra Panda, Member (A). Sh. Ombir Singh Aged 38 years, S/o Shri Sher Singh, R/o Village Manoli, Distt. Sonepat, Haryana. Applicant. (By Advocate : Sh. Sachin Chauhan) vs. 1. Union of India through The Secretary, Ministry of Finance, North Block, New Delhi. 2. The Chief Commissioner of Central Excise & Customs CR Building, IP Estate, New Delhi 110001. 3. The Commissioner of Central Excise & Customs CR Building, IP Estate, New Delhi 110001. . Respondents. (By Advocate : Shri R. N. Singh for Shri R. V. Sinha) : O R D E R (ORAL) :
The Applicant was a part time casual worker with the Respondent -3 and was disengaged with effect from 15.7.2005. The Respondent -3 has initiated the selection process for the recruitment of Sepoy for which the Applicant also applied. The Respondent -3 vide letter dated 6.5.2008 (Annexure-A1) intimated the Applicant that the prescribed maximum age limit was 27 years and the Applicant being over-aged and no age relaxation was applicable in his case, his candidature could not be considered. Aggrieved by the said communication, he has approached this Tribunal to set aside the letter at Annexure-A1 and prayed to direct the Respondents to allow him to participate in the selection process after giving him the required age relaxation.
2. Shri Sachin Chauhan, the learned counsel for the Applicant contended that the Applicant had not approached the Respondents to regularise him for the post of Sepoy since he was working as Casual Worker. His only prayer was to permit age relaxation for the Applicant to participate in the selection process. His contentions were that the Applicant had worked from 1993 to 2005 with the Respondents. He became over-aged and was not absorbed in the Respondents organization. Shri Chauhan relied on the decision of the Honble High Court of Delhi in CWP No.8070 of 2002 decided on 13.12.2002 in case of Shri Shamsher Singh Versus Government of NCT of Delhi and Others and the relevant part of the decision is as follows:-
We cannot approve of a situation where a person is appointed on temporary or ad hoc basis without having participated in the process of selection. In case such an appointment is regularized it would amount to a back door entry into service. The petitioner, therefore, in our view is not entitled for being regularized without facing a process of regular selection. But at the same time it must be ensured that in case the respondent decides to fill up the post held by the petitioner on regular basis, it must allow the petitioner to participate in the process of selection and while considering his case along with others, the experience acquired by the petitioner in the service of the respondent must be given due weightage. In case the posts are to be filled up on regular basis the respondents will not debar the petitioner on the ground that he has become overage.
3. On the contra, Shri R.N.Singh, the learned counsel for the Respondents vehemently opposed the contentions raised by Shri Chauhan. Shri Singh contended that the Applicant was a part time casual worker and worked for few hours/day and was not engaged since 15.7.2005. For more than 3 years he has not been working with the Respondents. The Applicant has been trying for backdoor entry to get regularized in the Respondents organization. Shri Singh stated that the Honble High Court decision relied on by Shri Chauhan, did not lay down the principles of age relaxation and would not be applicable to this case. On the other hand, Shri Singh, in support of his contention that the age relaxation would not be available for the Applicant, relied on the following decision:-
E. Ramakrishnan and Others Versus State of Kerala and Others decided on 4.9.1996 {(1996) 10 SCC 565}.
Union Public Service Commission Versus Girish Jayanti Lal Vaghela and Others decided on 2.2.2006 { AIR 2006 SC 1165.
Secretary, State of Karnatak and Others Versus Umadevi and Others decided on 10.4.2006 {2006 (4) SCALE 197} Om Prakash Versus Union of India OA No.900/2008 decided by the Tribunal on 23.5.2008.
4. Having heard the rival contentions of the parties, it is found that the Applicant is not an employee of the Government, even he has not been working as casual worker for more than 3 years. The learned counsel for the Applicant was confronted with the question, as to under which provisions (Recruitment Rules or Advertisement) the Applicant is seeking age relaxation. He had no answer to the issue. Shri Singhs contention is that there is no provision in the Recruitment Rules for age relaxation in the selection of Sepoy.
5. It may be noted that the present status of the Applicant in the case is ex-casual worker. His case cannot be treated on par with the casual workers. He is to be treated on par with any other Applicant for the post. As per Honble Supreme Court decision the upper age limit cannot be relaxed for those working on contract for the purpose of regular employment, the Apex Court decided by the UPSC Versus GJL Vaghela (Supra) For the reasons discussed above, we are clearly of the opinion that the Respondent No.1 cannot be said to be the Government Servant as he was working on contract basis and, therefore, he was not eligible for any relaxation of upper age limit. The view taken by the Honble High Court is clearly erroneous in law and is liable to be set aside. In the present case, the Applicant is only ex casual worker. His claim is not even at par with that of a contract worker.
6. The ratio of Umadevi case (supra) sets the law that daily wager and casual workers cannot be regularized as such. It is noted that the ex daily wage worker is not covered under the dicta of Umadevi case (supra). The Applicant preferred a representation being an ex-casual worker for relaxation of upper age limit. The same was rejected by the Respondent No.3. While deciding the case, the decision of this Tribunal in a similar matter and relied on by the Respondent, seem to be relevant. The Division Bench of this Tribunal in OA No.900/2008 (supra) considered on the issue of prayer for the relaxation of age to participate in the selection held for Group D Post, and dismissed the application after scanning the legal position on the issue.
7. In the present case, Government has not provided any age relaxation clause and this Tribunal cannot enter into the domain of the executive to direct in the matter. Executives are in a better position to decide which category of applicants to be given age relaxation or higher/upper age limit. We rely on the decision of the Honble Supreme Court in E. Ramakrishnan case (supra). The ratio of E. Ramakrishnan case (supra) very clearly goes against the contentions of the Applicant. The Apex Court decided the case as follows:-
It is then contended that the petitioners have turned overaged and, therefore, necessary direction maybe given to regularize their service by filling up the unfilled posts. Even that relief also cannot be granted. If the petitioners have turned overaged on the date of recruitment, it would be for the appropriate Government to relax the age requirement and the petitioners have to stand in the queue and get selection through the PSC.
8. It is found that the Applicant is presently not working with the Respondents in any capacity either as a daily wager or otherwise. He is overaged. There is no provision in the rules for selection to grant any relaxation of age for the category in which Applicant is covered (ex casual worker). The settled legal position in the issue goes against the relief sought by the Applicant. As the Applicant is clearly overaged, the Respondent -3 has correctly and justly rejected the Applicants request to consider him by the relaxation of upper age limit for the post of Sepoy. The Original Application being devoid of merits is dismissed. No costs.
(Dr.Ramesh Chandra Panda) Member (A) /jk/ The Applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 thereby praying for setting aside Annexure A-1 dated 05.05.2008 and further direction to the respondents to allow him to participate in the certain process for sepoy initiated by advertisement dated 08.12.2007.
2. Brief facts of the case are that the Applicant was initially appointed with the respondent department as Casual Worker in the year 1993 on the basis of interview through employment exchange