Central Administrative Tribunal - Allahabad
Santosh Kumar Srivastava vs The Union Of India Through Secretary To ... 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. 1746 OF 2012. ALONG WITH ORIGINAL APPLICATION NO. 146 OF 2013 ALONG WITH ORIGINAL APPLICATION NO. 1715 OF 2012 ALONG WITH ORIGINAL APPLICATION NO. 1774 OF 2012 (U/s, 19 Administrative Tribunal Act.1985) 1. Santosh Kumar Srivastava, S/o Late O.P. Srivastava, Resident of H. No. 6/6, E.W.S Colony, Govindpur, Allahabad. 2. Anil Kumar, son of Shri Resident of H. No. 120, Mori, Dara Ganj, Allahabad. 3. Pawan Kumar Srivastava, S/o Late S.N Srivastava, Resident of 3/9, E.W.S., Govindpur Colony, District Allahabad. 4. Krishna Mohan Srivastava, Son of Late Prem Narayan Srivastava, Resident of House No. 76, LIG, A.D.A Colony, Nai Jhoonsi, Allahabad. 5. Raja Ram, Son of Shri Mohan Lal, Resident of Rajapur Chaubara, Post Mukundpur, Tehsil Soraon, District Allahabad 212 503. . . . . . . . .Applicants in OA No. 1746 OF 2012. By Advocate: Shri Namit Srivastva Versus 1. The Union of India through Secretary to the Government of India, Department of Personnel, Training and Grievances, New Delhi. 2. Comptroller and Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi 110 002. 3. Principal Accountant General (A & E) I, Uttar Pradesh, Allahabad. . . . . . . . . . Respondents in O.A No. 1746 of 2012 By Advocate : Shri Rajneesh Kumar Rai ORIGINAL APPLICATION NO. 146 OF 2013 Ram Asrey S/o Shri Parmeshwar Deen, Resident of H. NO. 59/7D, Circular Road, Newada, Allahabad. .....Applicant in O.A. NO. 146/13 By Advocate: Shri Namit Srivastava Versus. 1. The Union of India through Secretary to the Government of India, Department of Personnel, Training and Grievances, New Delhi. 2. Comptroller and Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi 110 002. 3. Principal Accountant General (A & E) I, Uttar Pradesh, Allahabad. . . . . . . . . Respondents in O.A No. 146/13 By Advocate: Shri Rajnish Kumar Rai ORIGINAL APPLICATION NO. 1715 OF 2012 1. Gopal Banerjee, S/o Shri Akhil Chandra Banerjee, Resident of H. No. 133-A/6A1, Beni Ganj, Allahabad. 2. Ram Achal, S/o Shri Amar Nath, Resident of Kahra Shailendrapur, Handia, Police Station Utraon, District Allahabad. . . . . . . . .Applicants in OA No. 1715 of 2012 By Advocate: Shri Namit Srivastava Versus 1. The Union of India through Secretary to the Government of India, Department of Personnel, Training and Grievances, New Delhi. 2. Comptroller and Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi 110 002. 3. Principal Accountant General (A & E) I, Uttar Pradesh, Allahabad. . . . . . . . . Respondents in O.A No. 1715/12 By Advocate: Shri Satish Chaturvedi/Shri Rajneesh Kumar Rai ORIGINAL APPLICATION NO. 1774 OF 2012 1. Deep Prasad, S/o Shri Mishri Lal, Resident of Saraswati Puram Bichhia, Behind P.A.C Chanmari, Post Bichhia Camp, Gorakhpur. 2. Shyam Narayan Prasad, S/o Late Ayodhya Prasad, Resident of 8, Gopalpur, Post Salimpur, District Deoria. 3. Uma Shankar Prasad, son of Late Ram Deo, Resident of Village Dargahia, Pasi Tola, Nanda Nagar, District Gorakhpur. 4. Shiv Kumar Prajapati, son of Shri Kalp Nath Prajapati, Resident of Village Mirzapur Gudiana, Post Geeta Press, Tehsil Sadar, District Gorakhpur. 5. Sandeep, son of Shri Mahabali Gaur, resident of H. No. 678-F, B.G. Colony, Charphatak, Mohadipur, District Gorakhpur. 6. Devendra Prasad Gupta, son of Late Keshav Prasad Gupta, Resident of Jangal Tulsi Ram, Adarsh Nagar Khajurahia, Bichhia Behind Old Shiv Mandir, Post P.A.C Camp, District Gorakhpur. .........Applicants in O.A NO. 1774/12 By Advocate: Shri Namit Srivastava Versus. 1. The Union of India through Secretary to the Government of India, Department of Personnel, Trianing and Grievances, New Delhi. 2. Indian Audit and Accounts Department, Office of Principal Accountant General, General and Social Sector (Audit) U.P Allahabad through its Principal Accountant General. 3. Senior Audit Officer/Admin., (NE) Railway, Gorakhpur. ..................Respondents in O.A No. 1774/12 By Advocate Shri Rajnish Kumar Rai/Shri Avnish Tripathi 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 all the O.As are as follows:-
(i) to consider for issuing orders or directions, in the nature of certiorari quashing the advertisement dated 10.11.2012 published in the newspaper Employment News (Annexure No.10 to the original Application in compilation No.2).
(ii) to consider for issuing orders or directions, in the nature of mandamus commanding the respondents to permit the applicants to participate in the interview which is going to be held w.e.f. 14.12.2012 onward.
(iii) to consider for issuing the orders of directions, in the nature of mandamus commanding the respondents to decide the representation dated 07.12.2012 (Annexure No.7 to this original application) given by applicant NO.1 and representation dated 10.12.2012 (Annexure No.8 to this Original Application) given by applicant NO.2 before the respondents.
(iii) Any other suitable writ, order or direction as this Honble Tribunal deem fit and proper under the facts and circumstances of the case.
(iv) Award cost of this original application in favour of the applicant.
2. All the OAs have been filed by 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 in various capacities. 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.
4. The total number of vacancies were calculated in the various offices. The respondents, instead of first regularizing/appointing all the casual labourers against the vacancies, advertised for being filled up through direct recruitment 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 are performed by Group D persons and accordingly had been performed by the applicants for long years.
5. Subsequently on 19.11.2012 they were issued work certificate up to 2012. They had filled up the on-line application forms on the basis of this information although the details of days worked and the years shown contain many factual errors.
6. All the applicants responded to the advertisement and filled up the application but they found that their names were not shown in the list of eligible casual labourers for interview on 14.12.2012 onwards. They gave their representation dated 7.12.2012 (Annexure A-7) against the reply sorry you are not short-listed when they tried to print out their admission form. Their representations have not yet been disposed of by the respondents. This response to their application when they fulfill all the eligibility conditions and are working in the offices of the respondents, is a clear violation of order dated 11.09.2000 passed in O.A No.1164/94. By this order, the Tribunal had directed that the names be entered into the casual labour register and they be given work of casual nature as and when arose on the basis of their seniority.
7. The applicants have drawn our attention to the eligibility conditions as laid out in the advertisement dated 10.11.2012 on recruitment of Multi Tasking Staff. 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.
8. Some age relaxation is available to casual worker. Clause 3 (B) viii states the following:-
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 This relaxation is available to casual workers clubbed with other relaxation available.
9. 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 (a) it has not been mentioned in the main advertisement (b) discriminatory as it adversely affects people who have been engaged for long periods (from 1985 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. In the case of the applicants, because of many factual errors, they have not been able to get the benefit of their actual service.
10. They have also challenged the policy adopted by the respondents in restricting persons to be called for interview to 20 times the vacancies as being without basis and without disclosure in the advertisement.
11 The learned counsel for the applicants has submitted that the impugned advertisement is arbitrary, illegal and liable to be quashed mainly on the grounds that it has not been advertised in accordance with any MTS Recruitment Service Rules.
12. Similarly the condition of minimum educational qualification of High School in the impugned advertisement is also illegal as it is against the recruitment rules for Group D in IA & AD which stipulates 5th class passed is the minimum educational qualification for engagement of casual labourers and also for Group D posts. The impugned advertisement is also liable to be quashed on the ground that it stipulates that the candidates who have not passed High School will have to pass the High School within two years of recruitment and if they do not pass the High School, their appointments shall be cancelled. The applicants have further sought quashing of impugned advertisement on the ground that online registration is to be made within 20 days of impugned advertisement notification without any facility of sending application through post or by hand. There is every possibility of mistake in the completion of form, resulting in not sending call letters for the interview.
13. The learned counsel for applicants submitted that the respondents never initiated one time measure to regularize the casual labourers from 2006-2012 in the light of decision of Honble Supreme Court. The respondents have also not implemented the scheme of regularization as per O.M. dated 07.06.1988 to fill the vacant posts and have also not implemented the Scheme of Grant of Temporary Status. The applicants are still in roll/casual labour register and gross discrimination has been done in engaging the casual labourers through out the year on the basis of pick and choose.
14. Senior casual labourers should have been given preference over the junior casual labourers. It is also submitted that this action of the respondents is in violation of articles 14, 15, 16, 21, 39 (d), 41, 42, 43, 45 and 311 of the Constitution of India. No advertisement for direct recruitment to any post including MTS could be made without proper service rules, recruitment rules, and sanction of posts Through this advertisement, the respondents will have unfettered power to favour a few and discard the casual labourers who have been working since long.
15. To sum up, the applicants have basically challenged the advertisement dated 10.11.2012 and their exclusion from participation on the following grounds:-
(a) The job profile of the posts (MTS) advertised for is that of Group D posts. Hence, the vacancies are to be utilized to appoint the existing casual labourer, who possess the qualification of the Group D staff.
(b) The advertisement is on the basis of no recruitment rules.
(c) The advertisement is bad in the eye of law as it goes against the reservation policy. The cut off date (30.12.2009) has not been disclosed in the body of the advertisement.
(d) By not allowing the candidates to appear in the interview, the respondents have been discriminatory towards them and in violation of the direction of O.A No. 1164 of 1994.
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 numbers of days in a year on an emergent basis. These casual labourers are not engaged against any post. As soon as the emergent work was over, their services were discontinued. 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. DOPT 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. 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) June, 2005, the total reservation was calculated and posts already filled were deducted. The resultant vacancy was for 116 posts for G.C. 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 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 DOPT Circular issued thereafter whereby some weightage is to be accorded to such persons. Earlier the DOPT 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 placed reliance on the following cases for fixing 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.
(v) State of Andhra Vs. K. Jayraman 1974 2 SCC 738.
(vi) Govt. of Tamil Nadu Vs. S. Arumgham & ors. AIR 1998 SC 1467
(vii) State of Bihar Vs. Ramjee Prasad, AIR 1990 SC 1300.
(viii) UOI Vs. Sudhir Kumar Jaiswal, AIR 1994 SC 2750.
(ix) 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.
(x) Government of A.P. Vs. P. Dilip Kumar, 1993 2 SCC 310.
(xi) UOI Vs. T. Sundaraman, AIR 1997 SC 2418.
(xii) Mohd. Riazul Usman Vs. District & Sessions Judge, Nagpur, AIR 2000 SC 919.
(xiii) State of Punjab Vs. Manjeet Singh, 2003 11 SCC 559.
(xiv) V. Ramkichenin Vs. UOI 2008 1 SCC 362
(xv) Tridip Kumar Dingal Vs. State of W.B 2009 1 SCC 768.
23. We have heard the learned counsels with great interest and have perused the records.
24. We come to the first relief claimed that is quashing of the advertisement dated 10.11.2012. We have first looked at the advertisement dated 10.11.2012. The advertisement given is that for the post of MTS worker and their job profile is listed in the same. While there is no doubt that some of the jobs & skills listed are the same as was earlier required of the Group D employee, these jobs were required to be performed by more than one person in an office. But there are skills required which were never required earlier e.g. familiarity with computer. These composite jobs to be performed by the same person as a result of the new policy would definitely require a higher set of skills, adaptability and education than hitherto required. In any case the decision to change the nature and consequently gradation of the posts is the result of adoption of recommendation of the 6th Central Pay Commission.
25. It is not disputed that 6th Central Pay Commission gave a recommendation by which all Group D posts in the Government departments have been upgraded to Group C with Pay Band-I and grade pay of Rs.1800/- and that the same was adopted by the CAG. As a consequence and it has been decided that there will be no further recruitment in Group D posts and, they have been re-designated as Multi Tasking Staff (MTS). Indian Audit and Accounts Department Multi Tasking Staff Recruitment Rules, 2011 has already been gazetted in August 2011, copy of which has already been filed on record as annexure R-1. (ii) The counting of the reservation in the entire cadre of MTS has been done in accordance with DOP&T Order No.36017/1/2004 (Estt) (Res.) June 2005. The actual vacancies advertised are on the basis of net requirement in each category after accounting in situ persons.
Five years age relaxation to SC/ST category, three years age relaxation to OBC category, 10 years age relaxation to physically handicapped category has been granted, which have been detailed in para-3 of the advertisement. The respondents have taken care of providing relaxation in respect of age and educational qualification to the casual labourers engaged with the respondents office.
26. As regards the contention of applicants that the advertisement is in violation of article 14 and 16 etc. of the Constitution of India, it has been submitted by learned counsel for the respondents that it is not in violation of any Articles of Constitution of India, rather the engagement of casual labourers itself has been in violation of article 14 and 16 of the Constitution of India as it was made without following the rules and regulations made for public employment, as enshrined in the Constitution.
27. Learned counsel for the respondents has refuted the arguments advanced by learned counsel for the applicants submitting that the present cases relate to the persons who were engaged as casual daily rated workers, not appointed against any sanctioned posts. Their cases would fall under the category of persons mentioned in para-44 (in some reports para-53) of Uma Devis case wherein the Honble Apex Court has observed that the persons engaged on daily wages (who were so engaged without due process) can be allowed to compete in the regular process of selection waiving the age relaxation and giving some weight-age for their having been engaged for work in the department for significant period of time. In this regard, in the advertisement dated 10.11.2012 the department has made the provisions for open recruitment with provisions for age relaxation and weight-age to persons (prescribed as per norms) who had worked in the department for varying periods.
28. Our attention has been drawn by respondents counsel towards the observations made by the Honble Supreme Court in the case of Principal Mehar Chand Polytechnic and another Vs. Anu Lamba and others (2006) 7 Supreme Court Cases 161 wherein it has been observed, as under: -
In the present case, the respondents did not have legal right to be absorbed in service. They were appointed purely on temporary basis. It has not been shown by them that prior to their appointments, the requirements of the provisions of Articles 14 and 16 of the Constitution had been complied with. Admittedly, there did not exist any sanctioned post. Prior to the appointments, neither any appointment was issued enabling the eligible candidates to file applications therefore nor were the vacancies notified to the employment exchange. The project undertaken by the Union of India although continued for some time was initially intended to be a time-bound one. It was not meant for generating employment. It was meant for providing technical education to the agriculturists. Thus, in the absence of any legal right in the respondents, the High Court could not have issued a writ of or in the nature of mandamus. Hence, the part of the High Courts judgment whereby and where under the appellants had been directed to create posts and regularize the services of the respondents, is set aside.
29. The applicants could not show any documentary evidence on record that their engagement/appointment was in accordance with the rules prevailing at that time, it cannot be said that any provision of the Constitution of India has been violated.
30. 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. The operative portion of the order dated 11.9.2000 reads as follows:-
The relief claimed by the applicant for inclusion of his name in the casual labour register from 1.4.1980 onwards cannot be allowed. However, the applicant has a right for inclusion of his name in Casual Labour Register on the basis of number of days of working as admitted by the respondents. We, therefore, direct the respondents to enter the name of the applicant in the Live Casual Labour Register and to give him work of casual nature as and when it arises on the basis of his seniority in the register.
31. The present case is one of recruitment to the post of MTS. If the applicants have any grievance against their placement in the Casual Labour Register, any direction on that issue is outside the purview of their case.
32. The non-inclusion of many of the applicant, it is clear is the result of the respondents decision to restrict the number called for interview to a more manageable number. 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.
33. The question that there arises is whether the respondents have done any wrong in short-listing. 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:-
-Shortlisting-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.
34. 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.
35. While the question of age relaxation will be discussed later, the educational qualification for the persons to appear in the MTS examination i.e. High School or ITI equivalent is in accordance with the Recruitment Rules for the MTS as gazetted in 7-10 August 2011. Moreover, a provision has been made in the advertisement itself that the casual labourers who pass the MTS examination will be given two years period to clear their High School examination and they will also be given training for the work assigned to them. Thus, there is nothing arbitrary or irregular in the advertisement in this regard.
36. The respondents have fixed a cut off date of 31.12.2009 for the purposes of age relaxation on the ground that this was the cut off date in earlier recruitment exercise in 18 states where the recruitment has taken place. This contention does not carry much conviction as, one is forced to ask, why then the current exercise to recruit MTS was not undertaken simultaneously with the other states? While the respondents do not have to face any personal adverse consequences of a delayed recruitment, those of the Casual Labourers who would have been eligible in 2009 with age relaxation would not be eligible in 2012 as they would not get the benefit of the additional 3 years even if they were being regularly engaged whereas they would be 3 years older| Had the recruitment taken place 3 years earlier, at least some of them stood a chance of being considered for a more stable job with better emoluments. The similarly placed persons in the 18 other states had, therefore, enjoyed the benefit of a relaxation which are now being denied to their contemporaries (in age) in this state.
37. The applicants have not challenged the fixation of 200 days in any two years. There is only some doubt as to the 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.
38. We now come to the issue which arises out of the applicants prayer for allowing them to participate in the interview process from which they have been debarred due to imposing of an arbitrary cut off date of 31.12.2009.
39. Learned counsel for the respondents, in support of his contention has placed reliance on the following case laws: -
(i) Shankar K. Mandal and others vs. State of Bihar and others (2003) 9 SCC 519;
(ii) Dr. M.V. Nair vs. Union of India & Ors (1993) 2 SCC 429;
(iii) Jasbir Rani & Ors.vs. State of Punjab (2002) 1 SCC 124;
(iv) State of Bihar vs. Rai Bahadur Hurdut Roy Moti Lall Jute Mills and another AIR 1960 SC 378;
(v) State of Andhra Pradesh and another vs. K. Jayaraman and others (1974) 2 SCC 738;
(vi) Government of Tamil Nadu and another vs. S. Arumugham & Others AIR 1998 SC 1467;
(vii) State of Bihar and others vs. Ramjee Prasad and others AIR 1990 SC 1300;
(viii) Union of India and another vs. Sudhir Kumar Jaiswal AIR 1994 SC 2750;
(ix) Dr. V.P. Malik and others vs. Union of India AIR 1996 SC 1048;
(x) Dr. Ami Lal Bhat vs. State of Rajasthan and others AIR 1997 SC 2964;
(xi) Union of India and others vs. Shivbachan Rai (2001) 9 SCC 356;
(xii) State of Orissa and others vs. Bhikari Charan Khuntia and others (2003) 10 SCC 144;
(xiii) Basic Education Board, U.P. vs. Upendra Rai and others (2008) 3 SCC 432;
(xiv) National Council for Teacher Education and others vs. Sri Shyam Shiksha Prashikshan Sansthan and others (2011) 3 SCC 238 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.
40. 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.
41. 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.
42. 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 applicable only to those who have agitated their grievance before this Tribunal.
43. In view of the above facts and circumstances and discussions made above, the OAs No. 1746/12, 146/13, 1715/12 and 1774/12 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)
Manish/-
42. The respondents have fixed a cut off date of 31.12.2009 for the purposes of age relaxation. 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 will not be given the benefit of age relaxation for the period between 2009-2012. The respondents have cited judgments of the Honble Supreme Court as detailed in paras 16 and 17 above) in support of their contention. In particular they have laid emphasis on State of A.P. Vs. K. Jayaraman and others (1974) 2 Supreme Court Cases 738. Para 3 of which reads as follows:-
Para 3. It is clear that if there had been an averment, on behalf of the petitioners, that the rule was invalid for violating Articles 14 and 16 of the Constitution, relevant facts showing how it was discriminatory ought to have been set out. After this had been done, the respondents, including the State of Andhra Pradesh, could have been in a position to set up other facts which may have indicated why the rule was not discriminatory. Such question cannot be decided without relevant assertions on questions of fact which may have to be investigated if controverted. It is only after facts affecting the validity of such a rule have been set out and an opportunity given to controvert them that a set of either admitted facts or established facts emerges by reference to which the validity of such a rule could be tested and a decision on the question could be given. The petitioners had only prayed for the quashing of the G.O. No. 929 of November 29, 1971 of the Health and Municipal Department fixing the gradation of the petitioners vis-a-vis other employees. They had not prayed for any declaration of invalidity of the ATA Rules. The question of its validity would have affected a number of persons who were not before the Court.
And in State of Bihar and Ors. Vs. Ramjee Prasad and Ors. AIR 1990 Supreme Court 1300, the Honble Supreme Court has held:-
7. ............this Court observed that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless the circumstances show it to be capricious or whimsical. When it is necessary for the Legislature or the authorities to fix a line or a date and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or authority must be accepted unless it is shown to be capricious or whimsical or wide off the reasonable mark.
In National Council for Teacher Education and Ors. Vs. Shri Shyam Shiksha Prashikshan Sansthan and Ors. (2011) 3 Supreme Court Cases 238 the Honble Supreme Court has held that cut off dates are not violative of Article 14 of the Constitution are neither arbitrary or discriminatory if explained on facts.
43. The sole ground of fixing 31.12.2009 as the cut off date for granting age relaxation is that this was the cut off date in earlier recruitment exercise in 18 states where the recruitment has taken place. This contention does not carry much conviction as, one is forced to ask, why then the current exercise to recruit MTS was not undertaken simultaneously with the other states? While the respondents are not affected by any personal adverse consequences of a delayed recruitment, those of the Casual Labour who would have been eligible in 2009 with age relaxation would not be eligible in 2012 as they would not get the benefit of the additional 3 years even if they were being regularly engaged whereas they would be 3 years older| Had the recruitment taken place 3 years earlier, at least some of them stood a chance of being considered for a more stable job with better emoluments. The similarly placed persons in the 18 other states had, therefore, enjoyed the benefit of a relaxation which are now being denied to their contemporaries (in age) in this state. This discrimination can only be remedied by setting the cut off date for age relaxation as the last date of submission of the interview forms i.e. 30.11.2012.
44. In view of the discussion, this O.A. is partly allowed. The condition imposed in para 3 (b) (viii) of the advertisement is partially modified to the extent that the last date for age relaxation for having worked for 200 days in a period of two years would be 30.11.2012 instead of 31.12.2009.
45. The additional years of work so put in will count towards the awarding age relaxation for the purpose of short-listing and consequential issue of interview letters to such of the applicants who make it to the short list. The interview may be held within 30 days of receipt of copy of this order. The result of such interview will be clubbed with the result of interview held earlier on 14.12.2012 onwards and one combined result will be declared. However, this relief will be applicable only to those applicants who have agitated their grievance before the appropriate forum i.e. this Tribunal is keeping with the judgment of the Honble Apex Court in PM Latta & another Vs. State of Kerala & Ors, (2003) 3 SCC 541. No costs.
Member (A) Member (J)
Manish/-
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