Central Administrative Tribunal - Bangalore
Shaji Mukundan M vs Department Of Personnel And Training on 3 October, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0
NO.170/00589/2021
DATED THIS THE 3RD DAY OF OCTOBER, 2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri Shaji Mukundan M.,
S/o Shri Mukundan,
Aged about 46 years,
Working as PAO ASC (South),
Lower Agram Road,
Bangalore -560007
And Residing at B-6/11,
B DAD,
Residential Complex,
Cambridge Layout,
Someshwarapura, Halsuru,
Bangalore -560008. ...Applicant
(By
By Advocate, Ms. Rashmi K.)
Vs.
1. Union of India,
Represented by its Secretary,
Department of Personnel and Training,
3rd Floor, Lok Nayak Bhavan,
Khan Market,
New Delhi 110003.
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2. The Controller General of Defence Accounts,
Ullan Batar Road,
Palam,
Delhi Cantt-110010.
Cantt
3. The Director
Direc (JCA),
Ministry of Personnel P.G.
And Pensions,
Department of Personnel & Training,
New Delhi.
4. The Sr. Accounts Officer (AN),
Office of the PCDA,
# 107, Lower AGRAM
A Road,
AGRAM
GRAM Post,
Bangalore -560007.
5. The Principal Controller of Defence
Accounts Office of the PDCA,
No.107, Lower Agram Road,
Agram Post,
Bangalore -07. ...Respondents
(By Advocate,
Advocate Shri S.Sugumaran)
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O R D E R (ORAL
ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative ve Tribunals Act, 1985 seeking the following reliefs::
"a "a) Issue a writ of certiorari or any other appropriate writ or order quashing the reply dated 15.09.2021 bearing No.AN/Estt Others/12211/Grievance/2020-21 issued by the No.AN/Estt-Others/12211/Grievance/2020 2nd respondent, produced at Annexure Annexure-A9, as the same is violative of Articles 14, 16, 19 and 21 of the Constitution of India.
b)) ISSUE A WRIT OF MANDAMUS or any other appropriate order or direction, directing the respondents to permit the applicant to appear for the departmental examination which is scheduled on 16.09.2021 in the interest of justice.
c)) Issue any other incidental or consequential relief/s as deemed fit in the facts and circumstances of the case and in aid of the main relief sought for, in the interest of justice and equity."
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2. Briefly stated the facts as narrated by the applicant are that he is an ex-serviceman, serviceman, joined the civil post as an MTS under Respondent No.2 on 01.08.2018 after his retirement from Indian Army. The next promotional avenue to the applicant is Clerk post after completion of three years of regular service in the post of MTS. The prescribed age limit was 45 years subject to completion of departmental examination held from time to time. In terms of the examination notification published by the Respondent No.2, where the examination was scheduled eduled to be held on 11.11.2019, 1 .2019, the applicant made a representation dated 23.07.2019 to the 2nd Respondent requesting to permit him to appear for departmental examination by giving age relaxation to him (ex-serviceman) to appear for the examination condoning the short fall in the required service duration. In response, 2nd Respondent rejected rejected the said request stating that there is no such provision for relaxation as per the existing recruitment rules rules. Since the applicant did not get the chance to appear for the departmental examination in 2019, he made one more request to Respondent No.2 on 13.07.2021 requesting to permit him to appear for the department departmental examination by giving age relaxation in the next scheduled examination. Again on 23.07.20221, the 2nd Respondent refused the 5 OA 589/2021/CAT/BANGALORE BENCH said request assigning the same reason gi given earlier. As the examination was scheduled on 16.12.2021 for which the applicant was not permitted to appear, the applicant approached this Tribunal.
3. This Tribunal vide order dated 15.12.2021 referring to Rule 5(a) of the Ex-Servicemen Ex (Re-Employment loyment in Central Civil Services and Posts) Amendment Rules, 2012 ('Rules' for short) finding prima facie case, issued a direction to the respondents to permit the applicant to appear in the departmental examination, which is scheduled to be held on 16.12.2021 16.12 on provisional basis. However, it was directed that his result shall be kept in a sealed cover during the pendency of the Original Application. In compliance with the direction issued by the Tribunal, the learned Counsel appearing for the respon respondents has placed the sealed cover result before this Tribunal. The said sealed cover has been opened in the open Court today in the presence of learned Counsel appearing for both the parties. The result kept in the sealed cover would indicate that the applicant has scored total 50 marks and has passed the examination provisionally. Since the applicant has passed the examination, we have proceeded further to analyse the lis involved in the case.
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4. Learned Counsel Ms.Rashmi K., representing the applicant argued that the 2nd Respondent denied the applicant to take up the departmental examination on the ground that he has crossed the upper age limit of 45 years. The applicant has rendered 18 years 9 months service in the Indian Army as Clerk and is entitled for age relaxation upto 49 years by taking consideration of military service and three years of service as MTS. As such denial of opportunity to the applicant to appear for the examination is wholly arbitrary and illegal. No denial of permission permission to appear for the departmental examination merely assigning the reason of no provision under the cadre and recruitment rules, rules is justifiable in view of Compendium instruction issued by the Government on reservation of Ex Ex-servicemen vide OM dated 25.02.2014.
25.02.2014. A reference was made to the Office Memorandum dated 02.04.1992 as well as the Government order dated 10.10.1994. Learned Counsel placed reliance on Rule 5(a) of the Rules.
5. Learned Counsel Shri S.Sugumaran representing the respondents submitted submitted that as per Defence Accounts Department (Clerk) Recruitment (Amendment) Rules, 2011, there is no relaxation granted to ex-servicemen ex servicemen and as per the given criteria, the individual is 7 OA 589/2021/CAT/BANGALORE BENCH not eligible to appear in the examination for promotion being over aged.
ed. Relying on the conditions contained in Circular dated 12.07.2021 issued by the Respondent No.2 relating to departmental examination submitted that the maximum age limit is one of the main criteria for entitlement to appear for the written examination for promotion to Clerk from MTS. Learned Counsel submitted that once ex-servicemen servicemen has joined the Government job on civil side after availing of the benefits given to him as an Ex Ex-serviceman for his re-
employment, his Ex-serviceman Ex serviceman status for the purpos purpose of re-
employment in Government ceases. On joining the civil employment, he is deemed to be a civil employee and will accordingly be entitled to only such benefits like relaxation of age etc., as admissible to civil employees in the normal course in aaccordance with the existing instructions in this regard subject to his fulfilment of the conditions governing the grant of such benefits. Learned Counsel submitted that Rule 5(a) of the Rules would be applicable only to fresh appointment appointments and not to promotional pro posts.. Justifying the impugned order, learned Counsel sought for dismissal of the application.
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6. We have carefully considered the submissions of the learned Counsel for the parties and perused the material placed on record.
7. The point that arises for our consideration is whether relaxation of age limit is permissible to the applicant being an Ex Ex-
serviceman to appear for the departmental examination held for the promotional post?
8. It is not in dispute that the applicant has worked in the Indian Army as Clerk for about 18 years 9 months and after clearing the examination held by the State Selection Commission (SSC), the applicant was selected as MTS in the year 2018. The next promotional avenue was to the grade of Clerk. The prescri prescribed qualification for promotion as per the cadre and recruitment rules are:
1) The employee should have completed three years of service in the existing post.
2) He should clear the departmental examination held by the respondents.
3) The upper age limit to appear for such examination is 45 years.
9 OA 589/2021/CAT/BANGALORE BENCH The applicant has crossed 45 years of age at the time of completion of three years of service in the post of MTS, to appear for the departmental examination. The representations made by the aapplicant for condoning the duration of six months of upper age limit has no not yielded any positive response on the ground that no such relaxation is prescribed.
9. Rule 5(a) of the Rules reads thus:
"(5)(a) For appointment to vacancies in Group B (Non-
Gazetted) Group C or Group D posts in Central Government, an ex serviceman shall be allowed to deduct the period of actual ex-serviceman military service from his actual age and if the resultant age does not exceed the maximum age limit prescribed for the post for which he is seeking appointment by more than three years, he shall be deemed to satisfy the condition regarding age limit."
10. As per OM dated 25.02.2014, Compendium of instructions on reservation for ex-servicemen servicemen has been issued by the DOPT. In terms of the said Compendium, Compendium relaxation regarding age limit is stipulated at Clause-5.
5. The relevant portion of the said paragraph is quoted hereunder for ready reference:
10 OA 589/2021/CAT/BANGALORE BENCH "5. Relaxation regarding age limit For appointment to vacancies in Group B (Non (Non-Gazetted), Group C or Group D posts in Central Government, an ex ex-
servicemen shall be allowed to deduct the period of actual military service from his actual age and if the resultant age does not exceed the maximum age limit prescribed for the post of which he is seeking appointment by more than three years, he shall be deemed to satisfy the condition regarding age limit. ...................................... Those ex-servicemen servicemen who have already secured regular employment under the Central Government in civil post would be permitted the benefit of age relaxation as admissible for ex ex-
servicemen for securing another employment in an any higher post or service under the Central al Government irrespective of any Group/post. However, such candidates will not eligible for the benefit of reservation, reservation, if any, for ex ex-servicemen in Central Government.
REFERENCE Office Memorandum No.:
(i) 36034/27/84-Estt(SCT) 36034/27/84 Estt(SCT) dated 2.5.85 (Annexure (Annexure-P.40)
(ii) 36034/6/90-Estt(SCT) 36034/6/90 Estt(SCT) dated 2.4.92 (Annexure (Annexure-P.41)
(iii) 36034/6/90-Estt 36034/6/90 Estt (SCT) dated 10.10.94 (Annexure-P.42)"
11. The relevant paragraph of OM dated 02.04.1992 issued by the DOPT is quoted hereunder for ready reference:
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2. The matter has been examined in this Department in Consultation with Ministry of Defence and the Department of Public Enterprises Enterprises and it has now been decided that such of those ex-servicemen ex servicemen candidates who have already secured employment under the Central Govt. in Group C & D will be permitted the benefit of age relaxation as prescribed for ex ex-
servicemen for securing another employment in a higher grade or cadre in Group C/D under the Central Govt. However, such candidates will not be eligible for the benefit of reservation for ex servicemen in Central Govt. jobs."
ex-servicemen
12. Indisputably, the applicant - ex ex-serviceman was working as MTS - Group 'C' cadre under the Central Government. The applicant is not claiming the benefit of reservation for ex-servicema servicemann in the promotional post of Clerk grade. What is claimed by the applicant is only relaxation of age limit to appear for the departmental examination prescribed for the promotional post of Clerk grade. In the light of the OM dated 25.02.2014 - Compendium of instructions on reservation for ex ex-servicemen and OM M dated 02.04.1992, in our considered view, no narrow interpretation could be given to Rule 5(a) of the Rules. The arguments of the learned Counsel for the respondents that the said 12 OA 589/2021/CAT/BANGALORE BENCH Rule 5(a) is applicable only to fresh appointments and not to promoted post, cannot be countenanced. Compendi Compendium of instructions and the OM dated 02.04.1992 issued by the DOPT makes it clear that the ex-servicemen ex servicemen candidates who have already secured appointment under the Central Government in Group 'C' and 'D' will be permitted the benefit of age relaxation as pprescribed for ex-servicemen servicemen for securing another employment in a higher grade or cadre in Group 'C' or 'D' in Central Government. That being the position, denial of permission for the applicant to appear for departmental examination to the post of Clerk grade as he is not eligible for age relaxation is wholly untenable. However, by virtue of interim order passed by this Tribunal, the applicant having appeared for examination and his results results kept in the sealed cover now opened and found to have passed, w we deem it appropriate to direct the Respondent No.2 to consider the case of the applicant for promotion to the post of Clerk grade relaxing the age limit as provided in the DOPT instructions referred to supra, in an expedite manner subject to he fulfillingg the other rrequired criteria. Ordered accordingly.
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13. In the result, with the aforesaid observations and directions, OA stands disposed of. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.