Central Administrative Tribunal - Allahabad
Vinay Kumar Srivastava S/O Shri Ram ... vs Union Of India Through Accountant ... on 30 October, 2013
RESERVED ON 26.9.2013 CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD (ALLAHABAD THIS THE 30th DAY OF OCTOBER 2013) PRESENT: HONBLE MR. JUSTICE S.S. TIWARI, MEMBER -J HONBLE MS, JAYATI CHANDRA, MEMBER -A ORIGINAL APPLICATION NO. 1684 OF 2012 Along with ORIGINAL APPLICATION NO. 1685 OF 2012 Along with ORIGINAL APPLICATION NO. 1809 OF 2012 Along with ORIGINAL APPLICATION NO. 1718 of 2012 Along with ORIGINAL APPLICATION NO. 1679 of 2012 Along with ORIGINAL APPLICATION NO. 1779 of 2012 Along with ORIGINAL APPLICATION NO. 24 of 2013 (U/s, 19 Administrative Tribunal Act.1985) 1. Vinay Kumar Srivastava S/o Shri Ram Ashrey Srivastava, R/o 17A/8N, Rajapur, Ganga Nagar, Allahabad. 2. Gulshan Kumar Batra, S/o Shri Om Prakash Batra, R/o 225 B, Pritam Nagar, Allahabad. 3. Vijay Srivastava, S/o Late Shiv Shanker Lal Srivastava, R/o 364/166 Alopi Bagh, Allahabad. All the applicants working in the office of AG -1, UP, Allahabad. .......Applicants in O.A. NO. 1684/12 By Advocate: Shri Satish Madhyan Versus. 1. Union of India through Accountant General, UP Allahabad. 2. Indian Accounts & Audit Department, Uttar Pradesh, Allahabad through Principal Accountant General. 3. Principal Accountant General (General & Social Sector Audit), Uttar Pradesh, Allahabad. 4. Accountant General, office of A.G. -1, UP Allahabad. . . . . . . . . . Respondents in O.A. NO. 1684/12 By Advocate : Shri S. Chaturvedi/Shri Rajnish Kr. Rai ORIGINAL APPLICATION NO. 1685 OF 2012 1. Chanda Begum W/o Abdul Khan, R/o R.A Bazar, Top Khana, Allahabad. 2. Rakesh Kumar Srivastava, S/o Shri Ram Ashrey Srivastava, R/o 17A/8N Rajapur, Ganga Nagar, Gali No.2, Allahabad. 3. Ram Sajivan S/o Shri Kashi Ram R/o Ghoredi, Tehsil Karchhana, Allahabad. 4. Manoj Kumar S/o Shri Ashok Kumar, R/o 2 Cariappa Road, Officer Line, New Cantt. Allahabad. 5. Dilip Kumar S/o Shri Khuti Lal, R/o 2 Cantt., Supply Depot, Roti Godam, Kanpur Road, Allahabad. 6. Jugnu Lal Nishad S/o Late Hori Lal, R/o 3 Akashpuri Colony, Sadar Bazar, Allahabad. 7. Sunit D/o Late Bajrangi Ram, R/o 12/3 Dr. Lohia Marg, Civil Lines, Allahabad. 8. Neelam Rajnish W/o Brijvasi, R/o EWS 8169, ADA Colony, Preetam Nagar, Allahabad, All the applicants working in the office of A.G.-1 UP Allahabad. . . . . . . . .Applicant in O.A. NO. 1685/12 By Advocate: Shri Satish Mandhyan Versus 1. Union of India through Accountant General, UP Allahabad. 2. Indian Accounts & Audit Department, Uttar Pradesh, Allahabad through Principal Accountant General. 3. Principal Accountant General (General & Social Sector Audit), Uttar Pradesh, Allahabad. 4. Accountant General, office of A.G.- 1, UP Allahabad. . . . . . . . . . Respondents in O.A. NO. 1685/12 By Advocate : Shri S. Chaturvedi/Shri R.K. Rai ORIGINAL APPLICATION NO. 1809 OF 2012 1. Hari Shanker Srivastava S/o Late Ram Chandra Lal Srivastava, R/o 32, Ambedkar Nagar, Naini, Allahabad 211 008. 2. Ram Chandra Pal, S/o Shri Ram Khelawan, R/o Village & Post Sihipur, District Allahabad 211 505. 3. Santosh Kumar S/o Shri Kishori Lal, R/o 14/26, Hastings Road, Allahabad, All the applicants working in the office of AG - 1, UP Allahabad. .......Applicants in O.A NO. 1809/12 By Advocate: Shri Satish Mandhyan Versus 1. Union of India through Accountant General, UP Allahabad. 2. Indian Accounts & Audit Department, Uttar Pradesh, Allahabad through Principal Accountant General. 3. Principal Accountant General (General & Social Sector Audit), Uttar Pradesh, Allahabad. 4. Accountant General, office of A.G.- 1, UP Allahabad. . . . . . . . . . Respondents in O.A. NO. 1809/12 By Advocate : Shri Rajnish Kr. Rai ORIGINAL APPLICATION NO. 1718 of 2012 Ranjit Kumar S/o Shri Jagdish Prasad, R/o 17A/22/2, Ganga Nagar, Lane NO. 3, Rajapur, Allahabad. working in the office of Principal Director of Audit, North Central Railway, Head quarters Office, Subedarganj, Allahabad. ..........Applicant in O.A. NO. 1718/12 By Advocate: Shri Satish Mandhyan Versus. 1. Union of India through Accountant General, UP Allahabad. 2. Indian Accounts & Audit Department, Uttar Pradesh, Allahabad through Principal Accountant General. 3. Principal Accountant General (General & Social Sector Audit), Uttar Pradesh, Allahabad. 4. Principal Director of Audit, North Central Railway, Headquarters Office, Subedarganj, Allahabad. . . . . . . . . . Respondents in O.A. NO. 1718/12 By Advocate : Shri Rajnish Kr. Rai ORIGINAL APPLICATION NO. 1679 of 2012 Ajay Kumar Yadav son of Shri Raja Ram, Resident of 131, Circular Road, Newada, Allahabad. Applicant in O.A. NO.1679/12 By Advocate: Shri Ashish Kumar/Shri D.K. Dwivedi Versus 1. Union of India through Secretary, Accounts & Audit Department, New Delhi. 2. Accountant General (Accounts & Entitlement)-1, UP Allahabad. 3. Chief Accounts Officer, Office of Accountant General (Accounts & Entitlement)-II, U.P. Allahabad. .............Respondents in O.A. NO. 1679/12 By Advocate: Shri S Chaturvedi ORIGINAL APPLICATION NO. 1779 of 2012 1. Rakesh Mani son of Hari Shanker, Resident of Village Umrapatti, Post Mallawa Chajipur, District Pratapgarh. 2. Manoj Shukla son of Bal Mukund, resident of Village Bhagwatpur, Post Bamrouli, Bhagwatpur, District Allahabad. 3. Shiv Shanker Verma son of Shri Ram Lal, Village Bhagwatpur, District Allahabad. 4. Paras Nath son of Shri Sambhu Nath, Resident of Village Mohamad Pur, Post Hathiganha, Tehsil, Soraove, District Allahabad. 5. Mahendra Shukla son of Shri Srikant, resident of Village Aroovav, Post Holagarh, District Allahabad. 6. Rajesh Chandra son of Jamuna Prasad, Resident of 214, Chakathakur Ram, Jagdishpur, Purechanda, Tehsil Sorave, District Allahabad. 7. Ashoke Kumar son of Shri Ram Raj, Village Pure Nagia, Thana Jethwara, District Pratapgarh. 8. Shiv Murat son of Awadh Saran, Village Gogare, Post Mahmadpur, District Pratapgarh. 9. Umesh Kumar Pandey son of Rama Kant Pandy, 83C/5G/3L Chota Baghara Gangapuram, District Allahabad. 10. Rahul son of Shri Ram Narain, resident of 266/1-D Patrakar Colony, Newada Ashok Nagar, Allahabad. .......Applicants in O.A. NO. 1779/12 By Advocate: Shri D.K. Dwivedi/Shri Ashish Kumar Versus 1. Union of India through Secretary, Accounts & Audit Department, New Delhi. 2. Indian Accounts & Audit Department, Uttar Pradesh, Allahabad through Principal Accountant General. 3. Principal Accountant General (General & Social Sector Audit), UP Allahabad. 4. Accountant General, Office of AG-2 UP Allahabad. 5. Office of Accountant General (Accounts & Entitlement)-II, UP Allahabad. .........Respondents in O.A. NO. 1779/12 By Advocate: Shri Rajnish Kumar Rai/Shri K.P. Singh. ORIGINAL APPLICATION NO. 24 of 2013 1. Rjendra Singh son of Shri Chandrabhan Singh, Resident of House No. 310, District Koushambi, Allahabad. 2. Umesh Kumar Pandey son of Shri Rama Kant, Resident of 83C/5G/32 Chota Baghara Ganga Puram, Allahabad. 3. Vinay Kant Tripathi son of Shri Radhey Shyam, Resident of Village Tikari Post Kamal Nagar District Allahabad. 4. Dev Narain Tripathi, son of Shri Awadhesh Narain resident of Village Budna, Post Balrajnagar (Atrampur), District Allahabad. ......Applicants in O.A. NO. 24/13 By Advocate: Shri Ashish Kumar/Shri D.K. Dwivedi Versus. 1. Union of India through Secretary, Accounts & Audit Department, New Delhi. 2. Indian Accounts & Audit Department, Uttar Pradesh, Allahabad through Principal Accountant General. 3. Principal Accountant General (General & Social Sector Audit), UP Allahabad. 4. Accountant General, Office of AG-2 UP Allahabad. 5. Office of Accountant General (Accounts & Entitlement)-II, UP Allahabad. .........Respondents in O.A. NO. 1779/12 By Advocate: Shri Rajnish Kumar Rai/Shri K.P. Singh. O R D E R
BY HONBLE MS, JAYATI CHANDRA, MEMBER -A All the above OAs having common facts and reliefs are being disposed of by a common order. O.A. NO. 1685/12 has been made the leading case. The reliefs prayed for in O.A Nos. 1684/12, 1685/12, 1809/12 and 1718/12 are as follows:-
(i) to issue a writ, order or direction in the nature of certiorari quashing the conditions imposed in the advertisement dated 10-16 November 2012 limiting the experience part to 200 in last 02 years as on 31.12.2009.
(ii) to issue a writ order or direction in the nature of mandamus commanding the respondents to issue call letters to the applicants who may be allowed to appear for interview and be considered for appointment on the posts so advertised according to their suitability and fitness.
(iia) to issue writ, order or direction in the nature of mandamus commanding respondents to regularize services of applicants first and then to embark upon filling up the balance vacancies by direct recruitment from open market.
(iii) to issue such other and further order or direction which this Honble Tribunal may deem fit and proper in the nature and circumstances of the present case.
(iv) Award cost of the petition to the applicants.
Relief prayed for in O.A. Nos. 1679/12, 1779/12 and 24/13 are as follows:-
(i) That suitable order or direction may be issued commanding the respondent NO.2 and 3 to accept the application form of the applicant and to grant him relaxation of age for completion of 209 working days as Emergency Worker in the establishment of respondent NO.3 and further to issue Admit Card and permit the applicant to appear in the said examination.
(ii) To quash the condition imposed in para 3 (kha) (viii) of the advertisement dated 10-16 November, 2012 whereby the relaxation in age limit is granted to only those casual labour who have worked 200 days in at least 02 years.
(iii) To issue suitable order or direction commanding the respondents to regularize the services of applicants first and then to embark up filling up the balance vacancies by direct recruitment from open market.
2. All the OAs have been filed by the applicants, who have been engaged as Casual Labourers between the year 1985-2012 and have worked for varying period of years, some of them with one or more gap years and some of them without any such gap.
3. The applicants have averred that they have been working in different offices over varying period doing jobs normally performed by Group D employees but as casual workers. The Department had compiled lists of casual workers in the department for the year 2008-2009. All those who have been engaged prior to that date find their names in the list dated 8.2.2010 (A-2).
4. All the applicants have averred that initially in the year 2009, in view of the large number of casual workers with them, the total number of vacancies were calculated in various offices. The respondents, instead of first regularizing all the casual labourers against those vacancies advertised the vacancies in the Employment News dated 10- 16.11.2012 (Annexure A-1). The posts have been advertised as posts for Multi Tasking Staff although the jobs contents are the same as had been performed by the casual labourers.
5. The respondents by keeping on with the practice of engagement of casual labourers for regular Group D and keeping Group D posts vacant have flouted the DOPT OM NO. 49014/2/86-Estt. (C) dated 07.06.1988 and the Recruitment Rules of Group D appointment in the Indian Audit & Accounts Department (IA & AD) which provide for priority to casual labourers over outsiders.
The DOPT OM No. 49019/1/2006-Estt. (C) dated 11.12.2006 & Ministry of Finance Circular dated 7.4.2007 and 13.09.2007 also directed that all Casual Labourers be regularized on one time measure in the light of the judgment passed in Secretary, State of Karnataka Vs. Uma Devi 2006 4 SCC 1 (henceforth referred to as Uma Devi case). The respondents neglected to follow these directives and carried on with the practice of engaging casual labourers that too on pick & choose basis.
6. All the applicants responded to the advertisement and filled up the application form only to be told that they have not been short-listed (Annexure A 5) for appearing in the interview scheduled (and held) on 14.12.2012 onwards
7. The applicants represented (Annexure A-6) against the decision and requested for permission to appear in the interview since according to them, they fulfill all the eligibility conditions as stipulated in the advertisement dated 10.11.2012. Their representations were forwarded to respondent No.3 (Annexure A-7 and 8). But nothing further was heard from the respondents.
8. The applicants have drawn our attention to the eligibility conditions as laid down in the advertisement dated 10.11.2012 on recruitment of Multi Tasking Staff. The age criteria has been set out in para 3 with some age relaxation available to casual worker. Para 3 ([k) viii states the following:-
Hkkjr ds fu;U=d ,oa egkys[kkijh{kd ds vknskkuqlkj] vkdfLed Jfed ftUgksus Hkkjrh; ys[kk ,oa ys[kkijh{kk foHkkx ls lEcfU/kr dk;kZy;ksa ftuesa ;g in fjDr gS] es de ls de nks okksZ esa nks lkS fnu dk;Z fd;k gS] dks Hkh dk;Z djus dh vof/k rd vk;q lhek esa NqV izkIr dj ldrs gS] ckrsZ lEcfU/kr dk;kZy; }kjk dk;Z vuqHko izek.k i= tkjh fd;k x;k gks] ;g NqV vuqlwfpr tkfr@vuqlwfpr tutkfr@vU; fiNMk oxZ@fodykax@HkwriwoZ lSfudks vH;fFkZ;ksa dks izkIr NwV ds vfrfjDr gksxhA The English version reads as follows:-
As per order of Comptroller & Auditor General of India, the casual workers, who have been earlier engaged at least for 200 days in any two years in the concerned offices of the Indian Audit & Accounts Department to which the vacancies relate, will also be eligible for age relaxation to the extent of period of their engagement as casual labourer, subject to production of a Certificate to that effect from the concerned IA &AD office. This relaxation would be over and above the relaxation admissible to the SC/ST/OBC/PH/Ex-S candidates
9. The educational qualification required as on 1.6.2012 as stated in para 4 is High School pass but in case of Casual Worker, Class VIII pass.
10. The advertisement dated 10.11.2012 stipulates that the last date for filling up the application would be 30.11.2012. On that date, the age of the applicant should not be less than 18 years and more than 25 years. Varying relaxations are available to candidates belonging to SC, ST, OB, PH, Ex-Serviceman etc. as detailed in clause 3 (b) of the advertisement. In case of casual worker, age relaxation is also available to casual workers for the period ( in years) they were engaged provided they had put in 200 days in two years and that relaxation is to be clubbed with other relaxation available.
11. The advertisement does not disclose what would be the cut- off date for the purpose of counting 200 days in 2 years in its body. It is only when one opens the instruction on how to fill up the on line application form that the cut off date is discovered to be fixed as on 31.12.2009. This date is arbitrary as it has not been mentioned in the main advertisement. It is discriminatory as it adversely affects people who have been engaged for long periods (from 1996 or even earlier) and who are still working in 2012 specially as the age limit for all others is the last date of submission of on-line application form i.e. 20 days from the date of advertisement (10-16 November) i.e. up 30.11.2012.
12. The arbitrary limiting of the last date of experience to 30.11.2009 coupled with the past pick and choose policy of the respondents is biased in favour of the comparatively younger and therefore the more junior to the casual workers. The respondents have by their action gone contrary to the order dated 06.01.2006 passed in in OA No. 1191/04 upheld by the High Court of Allahabad by order dated 23.3.2006 passed in W.P. No. 15825 of 2006. By this order, the Tribunal had directed that all casual labourers should be engaged for work of casual nature as per their seniority and that all casual labourers should be regularized in accordance with their seniority against on- going vacancies and any future vacancies of Group D staff. This direction was later given much greater validity by the direction of the Honble Supreme Court in Secretary, State of Karnataka Vs. Uma Devi, (2006) 4 SCC . The operative portion in para 53 of which reads as follows ..............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 the 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 bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
13. The vacancies numbering 204 including 91 posts in the office of PAG (G&SSA) UP, Allahabad advertised for Multi Tasking Staff (for short MTS) relate to Group D vacancy, available and remained unfilled up to 2010-11. The respondent NO.1 through OM No. DOP&T 49019/1/2006-Estt. (C) dated 11.12.2006 and Ministry of Finance through Circulars dated 07.09.2007 and 13.09.2007 directed the Field Officers and all departments under Union of India to regularize the casual labourers as one time measure in pursuance to the judgment passed in Uma Devis case, who have been engaged for the last more than 10 years back. Despite the specific directions, the respondents No.2 and 3 have not complied with the said directions. Other departments under the Union of India have already regularized the casual labourers in pursuance to the decisions of Honble Apex Court and in compliance to the orders of Government of India.
14. By seeking to deny the benefit of first regularization and subsequent denial of participation in the selection process of advertised vacancies, the respondents have flouted the laws as laid down in the following cases:-
(A) Bhupinder Singh Saini & Ors. Vs. State of Punjab (2003) 9 SCC.
(B) Surya Narain Yadav & Ors. Vs. Bihar State Electricity Board and Ors. (AIR 1985 SCC 941).
In the above cases, it has been held that surplus employees be given age relaxation to the extent of service rendered by them in order to compete with others.
15. This Tribunal in OA NO. 1052 of 2008 delivered its order on 2nd April 2013 by which the Honble Single Member directed that in a matter of regularization, the applicants should be accorded the same benefits as have been accorded to the juniors. This direction has been upheld by Honble High Court of Allahabad in WP No. 135395 of 2013.
16. The respondents have contested the claims of the applicants. Their stand is that the respondents have been engaging persons including the applicants to perform work of varying nature in the various offices for various number of days in a year on an emergent basis. All such work performed was normally the work performed by Group D persons. As such in line with the various Govt. guidelines, (as endorsed by CAG) and judicial pronouncements, lists of all such persons are maintained in the concerned offices. Persons are engaged based on their seniority/suitability and ready availability as and when required. However consequent upon the adoption of the recommendation of the 6th Central Pay Commission all Group D posts were upgraded to Group C pay Band I with grade pay of Rs.1800/-.
17. DOP&T OM no. AB-14017 2009 Estt. (RR) dated 30.4.2010 by which a copy of Recruitment Rules (RR) for posts which could be designated as Multi Tasking Staff (MTS) was circulated to all offices including CAG. This O.M stipulates that there will be no further recruitment to Group D posts. There will be multi tasking with one employee with a common designation performing jobs which were earlier assigned to different Group D employees. The model Recruitment Rules for such Multi tasking employees was adopted by the CAG and was gazetted on August 7-13, 2011.
18. The present exercise is not an exercise to regularize on any group D post as with effect from adoption of the recommendation of the 6th Pay Commission, there are no posts of Group D. A comprehensive exercise was undertaken in all the offices of the respondents to calculate the number of vacant posts which required to be filled up in accordance with RR for Multi Task Staff as notified by CAG on August 7-13, 2011. The combined vacancy was pegged at 204 posts. As per the revised percentage of reservation as fixed by DOPT Circular No. 36017/1/2004 (Estt.) (Res) 05.07.2005, the total reservation was calculated and posts already filled were deducted. The resultant vacancy was for 116 posts for GC, 85 posts for OBC, 02 for SC and 01 for ST candidates. The same was advertised on 10.11.2012. In view of the long engagement of some of the casual labourers, a deliberate policy decision was taken by CAG to give some relaxation to them in view of their work experience.
19. The decision was taken at the level of CAG that there would be two concessions (a) minimum educational requirement would be class VIII pass against HS for direct recruitment and (b) some amount of age relaxation. It was decided that any one who had been engaged for 200 days in any 2 years, would be eligible for age relaxation for the number of years of engagement as Casual Labourer in the Department. However, the cut off date for availing of such concession was 31.12.2009.
20. The decision to give relaxation to Casual Labourers working during 1980-2009 is in pursuance to Apex Courts verdict in State of Karnataka Vs. Uma Devi and DOP&T Circular issued thereafter whereby some weightage is to be accorded to such persons. Earlier the DOP&T in Casual Labourers (Grant of Temporary Status and Regularization) Scheme dated 1.9.1993 had fixed 240 days (206 days in offices observing 5 work- day week) engagement in a year as a criteria for grant of temporary status 200 days in a period of 2 years is a further relaxation. This is a relaxation made available to all Casual Labourers working in the various offices under CAG on an All India basis. The exercise to fill up posts of MTS in the various offices under CAG had begun in the year 2010 and 18 States have already completed the exercise. The cut off date of all earlier exercise was 31.12.2009. Thus the same date for purposes of determining the age relaxation has been fixed. They have cited the following judgments in support of fixing a cut off date:-
(i) Shankar K. Mandal Vs. State of Bihar 2003 9 SCC 519.
(ii) Dr. M.V. Nair Vs. UOI 1993 2 SCC 429.
(iii) Jasbir Rani Vs. State of Punjab 2002 1 SCC 124.
(iv) State of Bihar Vs. Rai Bahadur Hurdutt Roy, AIR 1960 SC 378.
(ii) State of Andhra Vs. K. Jayraman 1974 2 SCC 738.
(iii) Govt. of Tamil Nadu Vs. S. Arumgham & ors. AIR 1998 SC 1467
(iv) State of Bihar Vs. Ramjee Prasad, AIR 1990 SC 1300.
(v) UOI Vs. Sudhir Kumar Jaiswal, AIR 1994 SC 2750.
(vi) National Council for Teacher Vs. Sri Shyam Shiksha Prashikshan Sansthan, 2011 3 SCC 238.
21. The respondents have further defended the short-listing exercise by which the applicants received the electronic response. The short-listing was undertaken by them in view of large number of applications received. It has been clearly stipulated in point No.10 of the advertisement dated 10.11.2012 that short-listing may be done if required. There was no occasion to disclose in the advertisement as to what would be the criteria for short-listing as no one could have predicted the level of response. In this case, in view of the volume of response the respondents have decided to call candidates equal to 20 times the number of vacancies for each category based on uniform category.
22. They have cited the following judgments in support of the short-listing:-
(i) M.P. Public Service Commission Vs. Navneet Kumar Potdar AIR 1995 SC 77.
(vii) Government of A.P. Vs. P. Dilip Kumar, 1993 2 SCC 310.
(viii) UOI Vs. T. Sundaraman, AIR 1997 SC 2418.
(ix) Mohd. Riazul Usman Vs. District & Sessions Judge, Nagpur, AIR 2000 SC 919.
(x) State of Punjab Vs. Manjeet Singh, 2003 11 SCC 559.
(xi) V. Ramkichenin Vs. UOI 2008 1 SCC 362
(xii) Tridip Kumar Dingal Vs. State of W.B 2009 1 SCC 768.
23. As these exercises were done electronically, there could be no question of any bias or favouritism.
24. Coming to the question of regularization, the respondents have contended that the State of Karnataka Vs. Uma Devi (supra) and the DOP&T OM dated 11.12.2006 passed in pursuance of the same have directed for one time exercise of regularizing of such persons who were irregularly (not illegally) appointed on sanctioned posts on ad-hoc, temporary and/or casual basis.
25. All the applicants in these OAs were never engaged against any post, although they may have performed work normally done by various Group D employees. Nor were they selected on the basis of vacancies notified either through Employment Exchange or through wide publicity and they were not selected from amongst a large number of applicants.
26. Moreover subsequent to the Uma Devi case (supra), all previous pronouncements and departmental directions, policies etc. stood denuded. They have further questioned the reliance placed by the applicants on various OMs passed by DOPT as the CAG (and his subordinate offices) under article 148 (5) of the Constitution are not bound to follow them unless and until they have been promulgated by the President in consultation with the CAG.
27. The applicants have filed their rejoinder affidavit along with the same lines as the O.A. Both the parties have presented their cases at length.
28. We have heard the learned counsels with great interest and have perused the records. Based on the rival submissions, the three issues which need to be determined in these OAs are:-
(a) Whether the applicants are entitled to regularization in view of various OMs and judicial pronouncements?
(b) Whether the short listing of applications received from the applicants is valid?
(c) Whether there is justification for fixing 31.12.2009 as the cut-off date for experience of 200 days in 2 years?
29. We would now take up issue No. (a) which arises out of relief No. (ii) (a).
30. The practice of engaging any person on casual, temporary or ad-hoc basis is fundamentally against the basic constitutional scheme of public employment. Needless to say, it lends itself to favouritism, nepotism, exploitation, compromise with merit/functional requirements etc. In an ideal situation there may be zero engagement of persons on such terms. But it has been well recognized that there may be occasions, in view the flow and ebb of work or its seasonality, emergency etc., when some persons have to be engaged for limited periods and for specific job requirements. Such persons should, in no way, be allowed to continue for large periods of time thereby arousing in them understandable expectation of public employments while killing their enterprise in looking for jobs elsewhere. The Honble Supreme Court in case of Uma Devi (supra) has gone in depth with the issue including the various pronouncements made by various High Courts and Tribunals and only a few observation need be quoted from the Uma Devi case (supra):-
Para 2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the constitution and the laws made thereunder Para 3. A sovereign Government considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages.. Para 4. But, sometimes this process is not adhered to and the constitutional scheme of public employment is bypassed. Para 43.........Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance.............................It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right.
However, in view of the dimensions of the problem of Casual Labourers, the Honble Supreme Court had laid down that one time exception be made and persons engaged irregularly against regular posts for more than 10 years be regularized.
31. During arguments the applicants have laid much emphasis on the point that in Office Memorandum dated 07.06.1988 and Office Memorandum dated 11.12.2006, specific guidelines were issued for regularisation of casual labourers and subsequently in the Judgment of Constitutional Bench in the case of Uma Devi (supra), the Honble Supreme Court has also directed the concerned employers to take one time measure for regularization of casual labourers. These are the basic arguments advanced by the learned counsel for the applicants in fovour of their case for regularization. It is worth to mention that O.M. dated 07.06.1988 was issued in view of the observations made by the Honble Apex Court in Writ Petition filed by Shri Surinder Singh and others against the Union of India. The relevant paragraph of the aforesaid O.M. i.e. para No. 1 reads as under: -
This O.M. generally lays down the guidilines in the matter of recruitment of casual labourers on daily wage basis;
Persons on daily wages should not be recruited for work of regular nature;
(ii) Recruitment of daily wagers may be made only for work which is casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular post cannot be created.
Apparently, the above guidelines which relate to the recruitment of casual labourers show that their engagement/recruitment itself has to be made for a work which is of casual or seasonal or of intermittent nature and, which is not of full time for which a regular post cannot be created. The other guidelines of this O.M. relate to regularisation of casual workers who have been assigned the work of permanent nature done by regular employees of the department.
32. The other Office Memorandum dated 11.12.2006, on which much emphasis has been laid by the applicants counsel, reads as under: -
The undersigned is directed to say that the instructions for engagement of casual workers enunciated in this Departments OM No. 49014/2/86 Estt. (C) dated 7th June, 1988 as amplified from time to time, inter-alia provided that casual workers and persons on daily wages should not be recruited for work of regular nature. They could be engaged only for work of casual or seasonal or intermittent nature, or for work which is not of full time nature for which regular post can not be created. Attention is also invited to this Departments OM No. 28036/1/2001-Estt. (D) dated 23rd July, 2001 wherein it was provided that no appointment shall be made on ad hoc basis by direct recruitment from open market.
2. 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 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 has directed that 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 are duly qualified persons in terms of the statutory recruitment rules 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 clarified that if such appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularised.
3. Accordingly the copy of the above judgment is forwarded into all Ministries/Departments for implementation of the aforesaid direction of the Supreme Court. A perusal of the above O.M. shows that it was issued after the Judgment passed in the case of Uma Devi (supra), directing all the concerned Ministries/ departments emphasizing that the Union of India, State Governments and their instrumentalities should take steps to regularize as one time measure the services of such irregular appointees who are duly qualified persons in terms of statutory recruitment rules for the post and who have worked for ten years or more in duly sanctioned posts but not under cover of Orders of Courts/Tribunals. If such appointment of casual labourers itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularised.
33. Learned counsel for the applicants has submitted that in the case of present applicants observations of Supreme Court made in para-53 of the above Judgment are applicable. He has drawn our attention towards para-53 of the Judgment in the case of Uma Devi (surpa), which reads as under: -
One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 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 the courts or of tribunals. The question of regularisation 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 the 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 regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
Learned counsel for the applicants has also placed reliance on the observations made by Supreme Court in the case of State of Karnataka and others Vs. M.L. Keshri and others AIR 2010 SC 2587, wherein the Honble Supreme Court while dealing with the matter of regularisation, observed as follows: -
It is evident from the above that there is an exception to the general principles against regularization enunciated in Umadevi (AIR 2006 SC 1806: 2006 AIR SCW 1991), if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. Observations of the Honble Supreme Court in the aforesaid case shows that the casual labourers may be regularized if they fulfill certain conditions and those conditions have been elaborated in the aforesaid Judgment. The fine distinction between irregular and illegal appointment has also been made in the above case by the Honble Supreme Court.
34. It is a cardinal principle of law that onus always lies on the person to prove the fact alleged by him/her. In the present cases, the applicants have come for regularization. Naturally they have to prove that they have fulfilled all the necessary conditions and possess necessary qualifications for being regularized. It is worth to mention that none of the applicants have filed any documentary evidence to prove that they were engaged/appointed as casual labourer against any advertisement made by the respondents duly communicated to the Employment Exchange against any sanctioned vacant post and has been working continuously against the post. The applicants have given statement of their qualification/eligibility etc. such as educational qualification date of birth etc. but they have not produced any record to show that their initial engagement was against sanctioned vacant posts. The applicants have variously produced details of number of days that they have put in over the years.
35. It has been specifically contended by the respondents counsel that none of the applicants fulfilled the conditions laid down in the above O.M. or in the case of Uma Devi (supra) and none of them are entitled to get its benefit. Learned counsel for the respondents has drawn our attention towards the observations made by the Honble Apex Court in para-43 of the aforesaid Judgment, which reads as follows: -
Thus it is clear that adherence to the rule of equality in public employment is a basic feature of our constitution and since the rule of law is the core of our constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as litigious employment in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. Be it as it may none of the applicants have cited any instance of their approaching the respondents or this Tribunal for their regularization. They were content to carry on working as Casual Labourers.
36. Some of the Casual Labourers (not necessarily any of the applicants had approached this Tribunal is through) filed OA 49/91, OA NO. 530/92, O.A. NO. 464 of 1994, OA NO 1164/1994, OA NO. 1191 of 2004 in which the reliefs claimed were the preparation of a seniority list, engagement on casual basis as per seniority and regularization in accordance with seniority. They have laid particular emphasis on OA No. 1191 of 2004. It is important to examine the operative portion of the order dated 06.01.2006 passed in O.A NO. 1191 of 2004. Subsequent O.A. NO. 1052 of 2008 was disposed of by Honble Single Member on the same line by order dated 2.4.2013. Order dated 6.1.2006 passed in O.A No. 1191 of 2004 reads:-
.........The possible solution, therefore, would be that the respondents carry out an exercise of preparing a seniority list in the descending order of the number of days these casual labourers worked as on 1.4.2005 (irrespective of whether the casual labourers were on duty on this day) and on the basis of the seniority, they shall work out the possibility of regularizing the services of such casual labourers against any vacant post of Group D post or any new posts are created in near future, in so far as day to day work is concerned, the respondents shall accommodate the first 20 and in case of their non-availability for any span of time, according to the seniority they may engage other casual labourers on need basis. Those who are attenders may be suitably informed of their block prospects of being engaged in view of the fact that there are adequate number of casual labourers to be engaged for day to day work who are senior to such persons. Out of the seniors as on date, if any of them are not being engaged, the respondents shall accommodate them as well.
Operative portion of the order dated 2.4.2013 in O.A. NO. 1052/08 reads:-
While according the said benefit to the applicants, the respondents would follow the order of seniority in the seniority list admittedly prepared in pursuance to the orders of this Tribunal in O.A NO. 1191 of 2004 as upheld by the Honble Allahabad High Court in Civil Misc. WP NO. 15825/06. The said benefit shall be accorded to the applicants from the same date as that of their admitted juniors. The said regularization would be accorded in the available vacancies in various categories like unreserved SC, ST and OBC by maintaining the category of the respective applicants and subject to availability of vacancies in the respective categories. However, the applicants will not be entitled to any back wages for the period they have not actually worked but they will be entitled to notional fixation of pay and allowances from the date of joining of their admitted juniors and on that basis actual pay and allowances from their actual date of joining. The applicants will also be entitled to all other consequential benefits.
37. The broad direction in both these OAs are that the respondents are required to prepare a seniority list, engage them as casual labourers on the basis of seniority and regularize them on the basis of seniority and as per availability of post.
38. The applicants have produced a list of names and other details of persons engaged as casual labourers dated 8.12.2009 which shows that this is an intermediary list inviting objections. Further, applicants in some of the OAs have represented against the number of days and the years as have been credited to them. The purpose of such a list is not very clear but one possible usage would be for the possible future engaging of casual worker in line with the orders passed in O.A. NO. 1191/12 after necessary rectification.
39. The use of such a list for the purpose of regularization on group D posts become infructuous in view of the upgradation of all group D posts to Group C posts with a different set of recruitment rules. This decision to change the status of the posts was taken in the year 2009 as a consequence of adoption of the recommendation of the 6th Pay Commission. It was open to the applicants to challenge such a decision in 2009. There is nothing to demonstrate that the applicants have obtained any order from a competent authority/court towards retention of group D posts.
40. The decision to upgrade all Group D posts to Group C (consequentially tantamounts to the abolition of all Group D posts), is a matter of executive policy and the courts will not interfere in such matters unless the same is brought about arbitrarily, in a malafide manner or as a cloak for dismissal or removal. This is a view which has been held by the Honble Supreme Court in various judgments In Commissioner, Corporation of Madras Vs. Madras Corporation Teacher Mandran (1997) 1 SCC 253: AIR 1997 SC 2131, The Honble Supreme Court had allowed special leave appeal filed against orders of Administrative Tribunal in O.A. No. 708 and 1685 of 1993 in which the Tribunal had directed that certain posts in Madras Corporation be created and had prescribed certain qualifications for the same. The Honble Supreme Court has the following order while allowing the appeal has stated Para 4. Under these circumstances as stated earlier the question is whether the Tribunal can give directions to create a post or to prescribed the minimum qualifications for the post?. It is a well settled legal position that it is the legal or executive policy of the Government to create a post or prescribe the qualification for the post. The Court or Tribunal is devoid of power to give such direction. The impugned direction, therefore, be clearly illegal.
In State of Haryana Vs. Navneet Verma (2008) 2 SCC 65; AIR 2008 SC 417, Honble Supreme Court had held that the power to create or abolish post rests with the government. Further whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity.
41. The alleged right of consideration for regularization as far as the applicants are concerned arose from various dates in accordance with various earlier rules/orders. But the applicants slept over their rights till they were aroused to action by the publication of the advertisement dated 10.11.2012 by which time where the policy decision to have zero Group D post had already been taken. The issue of seniority/juniority and the attending brooding sense of injustice, ill usage etc. gets subsumed in the fact that there is no post of Group D available for the regularization exercise. The Orders dated 6.1.2006 and 2.4.2013 in O.A No. 1191 of 2004 and OA NO. 1052/08 also requires regularization only against available posts.
42. The applicants averment that the job contents of the MTS is the same as that of the various Group D posts and therefore the casual labourers can be regularized against these posts cannot be accepted as the MTS is a Group C post and the recruitment has to be done in accordance with the R&R Rules.
43. Hence the issue of regularization is decided in the negative.
44. Coming to the 2nd issue, the respondents have stated in their counter reply that in view of the large number of applications received (over a lakh) a decision has been taken to restrict the number called for interview to 20 times total no. of vacancies in each category viz Gen. SC/ST, OBC, PH, Ex-Service etc. This short-listing has been done on the basis of educational qualification and past work experience.
45. We now examine the issue whether the respondents have done any wrong in short-listing. The practice of short-listing the number of applicants to a manageable proportion of the total received is neither a novel nor a new one. Time and again it has been resorted to by various organizations and the same has been challenged before various courts. However, the Honble Supreme Court has upheld the practice of short-listing under certain circumstances.
46. In Union of India and another Vs. T. Sundaraman (AIR 1997 SC 2418) the Honble Supreme Court allowed the appeal filed against the orders of Madras Bench of Tribunal and the Tribunal had directed for pre-processing of all applications for fresh selection, disapproving of the short-listing for fresh selection, disapproving of the short-listing done by Public Service Commission. The Honble Supreme Court had observed as follows:-
Para 4. .............Note 21 to the advertisement expressly provides that if a large number of applications are received the Commission may short-listed candidates for interview on the basis of higher qualification although all applicants may possess the requisite minimum qualifications.
In Government of Andhra Pradesh Vs. P. Dilip Kumar and another (1993) 2 Supreme Court Cases 310 has observed:-
...........There is nothing arbitrary or unreasonable in the employer preferring a candidate with higher qualification for service. It is well settled by a catena of decisions that classification on the basis of higher educational qualification to achieve higher administrative efficiency is permissible under our constitutional scheme.
In the case of M.P. Public Service Commission Vs. Navnit Kumar Potdar and another AIR 1995 Supreme Court 77. In para 9 of the judgment, the Honble Supreme Court has observed:-
.........It is all the more necessary to fix the limit of the applicants who should be called for interview where there is no written test, on some rational and objective basis that personality and merit of the persons are called for interview are properly assessed and evaluated. It need not be pointed out that this decision regarding short-listing of number of candidates who have applied for the post must be based not on any extraneous consideration, but only to aid and help the process of selection of the best candidates among the applicants for the post in question.
In Tridip Kumar Dingal Vs. State of W.B., (2009) 1 Supreme Court Cases 768, the Honble Supreme Court has observed as under:-
-Short-listing-Absence of any provision to this effect in statutory rules- Held shortlisting can be done on the basis of administrative instructions provided the action is bona fide and reasonable.
47. The applicants have not produced any specific ground which alleges any kind of malafide against them while short-listing made which affects their interest. Their only averment is that the criteria was not announced. This too is not tenable as the advertisement had to be made in accordance with the RR Rules of the Multi Tasking Staff as gazetted in August 2011. Short listing is a subsequent activity resorted to in the exigencies of the situation.
48. Our conclusion, therefore, is that the respondents are justified in short-listing the number of applicants to be called for interview. Issue No.2 is decided aftermatively.
49. We now come to the third issue which arises out of the applicants prayer for the quashing of the para No. 3 (B) (viii) of the advertisement dated 10- 16.11.2012 limiting the experience part to 200 days in the last 2 years as on 31.12.2009. In this para certain age relaxation has been given to the Casual Labourers who have worked for 200 days in 2 years.
50. According to the applicants, this condition is arbitrary and discriminatory as all the casual labourers who are on roll of the respondents in the Labour Register should have been given age relaxation as per scheme of engagement and regularization. The applicants counsel has further submitted that there is no rationality behind fixing the cut-off date as 31.12.2009 as MTS examination/interview is being conducted in the year 2012. In reply, learned counsel for the respondents has contended that the casual daily rated workers were not appointed against the sanctioned post, however, who are found eligible for appearing in the examination of MTS (Group C post) have been allowed to appear in the examination and weight-age for their experience as well as age relaxation has also been granted to them. The department is doing open recruitment with provisions of age relaxation and weight-age to persons as per prescribed norms who had worked in the department for varying periods. It is further contended by the respondents counsel that after the sixth Central Pay Commission report and prior to framing of the Rules by the DOP&T (framed rules on 30.04.2010) and notified by the CAG of India (notifying rules on 13.08.2011), in some of the States/Offices functioning under the control of CAG, recruitment took place and the CAG took a decision in December, 2009 much prior to the model rule framed by the DOP&T to undertake direct recruitment of MTS in all the offices of IA & AD. In those recruitments, as recruitments were taken prior to 30.04.2010 or 13.08.2011, the experience of daily wagers who had worked up to 31.12.2009 was taken into consideration. In the present recruitment also same policy has been adopted, as notified by the CAG, in granting age relaxation to the casual workers and weight-age to the experience gained by them. Accordingly, the relaxation in age and experience is available only to those casual labourers who had worked for 200 days in any two years prior to 31.12.2009. It is a policy decision taken by the CAG of India and it cannot be challenged by the applicants.
51. After hearing the submissions made by learned counsel for the parties, it appears that the applicants have not challenged the fixation of 200 days in any two years. There is only some doubt as to whether these 2 years are to be in continuation of each other or not. It is our understanding, in the absence of any specific averment or statement or denial that the two years could be taken to be any two years even if there is/are gap year/s in between. However, it is understood that the age relaxation would be equal to the actual number of years a person has been engaged.
52. The respondents have fixed a cut off date of 31.12.2009 for the purposes of age relaxation to the casual labourers. The applicants have strongly averred that the fixing of 31.12.2009 is biased and discriminatory to them as such a practice straight way prejudices those persons who have been working till 2012, but they will not be given the benefit of age relaxation for the period between 2009-2012. Further the impugned advertisement, there is no mention of the above cut-off date in the column of age relaxation to the casual labourers. In the instruction No. 9 under the heading HOW TO FILL THE APPLICATION FORM the following has been mentioned: -
If worked as a casual labourer/engaged through outsourcing in the participating offices of IA & AD: - Candidates who have been earlier engaged at least for two years (not beyond 31.12.2009) in the concerned offices of Indian Audit & Accounts Department in Uttar Pradesh. No justification appears to be there for mentioning this rider in the column HOW TO FILL THE APPLICATION FORM. The policy of the CAG for fixing cut-off date as 31.12.2009 might be well and good and justified for the recruitments conducted in the year 2010 but it cannot be justified for the recruitment which is going to be conducted three years later in 2012. The respondents have cited judgments of the Honble Supreme Court as detailed in paras 20 and 21 above) in support of their action.
53. Though the learned counsel for the respondents has placed reliance on the aforementioned cases, decided by the Honble Supreme Court in this regard, but the facts and circumstances of all these cases are different. However, one thing which has been repeatedly observed by the Honble Supreme Court is that normally no interference should be caused by the Court in shifting the cut off date fixed by the Government or the Institution unless that is arbitrary, unreasonable and irrational.
54. In the case of Shankar K. Mandal Vs. State of Bihar (2003) 9 SCC page 519, the Honble Supreme Court has laid down the principles as to under what circumstances what could be the cut off date which is mentioned as follows: -
What happens when a cut off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any non-prescription has been considered by the Supreme Court in several cases. The principles culled out from the decisions of the Supreme Court are as follows: -
(1) The cut-off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules.
(2) If there is no cut-off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications.
(3) If there is no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.
Similarly in the case of Dr. M.V. Nair Vs. Union of India and others (1993) 2 Supreme Court Cases 429, the Honble Supreme Court observed that it is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date.
55. A perusal of the impugned advertisement shows that the last date of online registration of application form has been mentioned as 20th date from the date of publishing of advertisement and this advertisement has been published in the Employment News of 10th to 16th November, 2012. In view of specific date mentioned for the last date of receipt of applications is 20th date from the date of publishing the notification i.e. almost 30th November, 2012. If this date has been mentioned as a last date for candidates from open market, why other date of three years back is fixed for the casual workers engaged earlier is difficult to understand. As already discussed above, this policy decision for the State of U.P. is unreasonable, unjust, arbitrary and discriminatory and it cannot be sustained.
Accordingly, issue no. (iii) is decided against the respondents.
56. In view of the above discussions, instruction No. 9 of the heading HOW TO FILL UP THE APPLICATION FORM, which limits the cut-off date as 31.12.2009 is modified to the extent that it will not be effective and the cut-off date in place of 31.12.2009 would be 30.11.2012 and the additional years of working so put in by the casual labourers worked in IA & AD will be counted towards awarding the age relaxation for the purpose of sort listing and consequently respondents are directed to issue interview letters to such of the applicants, who are otherwise eligible in terms of the advertisement dated 10.11.2012. The interview may be held within a period of 30 days from the date of receipt of a certified copy of this Order. The result of such interview will be clubbed with the result of interview held earlier from 14.12.2012 onwards and one combined result will be declared. However, it is made clear that this relief will be available only to those who have agitated their grievance before this Tribunal.
57. In view of the above facts and circumstances and discussions made above, the OAs No. 1684/12, 1685/12, 1809/12, 1718/12, 1679/12, 1779/12 and 24/13 are partly allowed. No order as to costs. The interim order granted in any of the above OAs, if any, stands vacated.
(Ms. Jayati Chandra) {Justice S.S. Tiwari}
Member (A) Member (J)
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