Central Administrative Tribunal - Mumbai
Atul Kumar Singh vs M/O Commerce on 9 April, 2025
1 OA No.793/2019
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.793 OF 2019
Dated this Wednesday, the 09th day of April, 2025
CORAM : HON'BLE MR. SHRI KRISHNA, MEMBER (A)
HON'BLE MR. UMESH GAJANKUSH, MEMBER (J)
1. Shri Atul Kumar Singh, Age 30 years,
Working as Trade Mark Examiner
in the office of Trade Mark Registration, Mumbai
Residing at R-2, 208, Nesco Colony, Jaycoach,
Opposite of Bimbisar Nagar, Goregaon East,
Mumbai 400 063.
2. Manoj Kumar Manjhi, Age 36,
working as Trade Mark Examiner
in the office of Trade Mark Registration, Mumbai,
Residing at House 987, Block No.29, C.G.S. Colony,
Antop Hill, Mumbai 400 037.
3. Priyanka Maruti Gade, Age 35 years,
Working as Trade Mark Examiner
in the office of Trade Mark Registration, Mumbai,
Residing at 53, Vidya Darshan CHS, 7th Floor,
703, Tagore Nagar, Vikhroli East, Mumbai 400 083.
4. Florina Simon Almeida, Age 30 years,
Working as Trade Mark Examiner
in the office of Trade Mark Registration, Mumbai,
Residing at A-201, Sai Satsangh Apartment,
Ramdev Park, Mira Road, Mumbai 401 107.
5. Laxmi Kodnani, Age 30 years,
Working as Trade Mark Examiner
in the office of Trade Mark Registration, Mumbai,
Residing at 18/5 Jai Kiran G.D.Somani Marg,
Mumbai 400 005. - Applicants
(By Advocates Shri R.G.Walia & Shri Vicky A. Nagrani)
2 OA No.793/2019
Versus
1. Union of India, Through The Secretary,
Ministry of Commerce and Industry,
Department of Industrial Policy and Promotion,
Udyog Bhawan, New Delhi 110 107.
2. The Secretary, Union Public Service Commission,
Dholpur House, Shah Jahan Road,
New Delhi 110 069.
3. Controller of General of Patent, Design and Trade Marks,
Department of Trade Mark Registry,
Buodhik Sampada Bhavan, S.M.Road,
Next to Antop Hill Post Office, Antop Hill,
Wadala, Mumbai 400 037. - Respondents
(Sr. Advocate Shri R.R.Shetty for respondent Nos.1 & 3,
Dr. V.B.Joshi for respondent No.2 & Ms. Sharanya Sinha)
Reserved on 02.12.2024
Pronounced on 09.04.2025
ORDER
Per : Umesh Gajankush, Member (J)
The present Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :
"8(a). This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same, direct the Respondents to grant age relaxation to the Applicants and they be allowed to participate in selection process for regular appointment on the posts of Examiner issued vide Advertisement No.15 of 2019.3 OA No.793/2019
8(b). This Hon'ble Tribunal may further be pleased to direct the Respondent No.2 to grant some weightage for the service / experience of the Applicants in selection process for regular appointment on the posts of Examiner.
8(c). Costs of the application be provided for.
8(d). Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed."
2. The brief facts of the case are that the respondent No.3 had issued notification / advertisement for filling up the posts of Examiner on contract basis on 01.08.2015 and 12.02.2019 (Annexure A-1 collectively). In pursuance of the same, the applicants accordingly appeared on the selection process for the post of Examiner in the respective years of the notifications. The respondents have decided to conduct interview as a mode of selection. The applicants competed with several other eligible candidates in the selection process. They were selected on contract basis for the post of Examiner. It is stated that their contract is extended up to 31.03.2020. The applicants have placed on record the appointment of all the applicants and the present age and other necessary details as per Annexure A-3.
2(a). The respondent No.2 have issued advertisement No.15/2019 for filling up inter-alia 65 posts of Examiner (SC-09, ST- 05, OBC-17, UR-28 and EWS-06). The essential qualification was 4 OA No.793/2019 Degree of two years in handing court cases and other legal matters or in handling matters of Trade Marks or Geographical Indications. The desirable qualification was Master's Degree of Intellectual Property from a recognized University. The age limit prescribed for the said post was 30 years.
2(b). It is further stated that the applicants belongs to UR and SC/ST category as specified in the chart. They were otherwise eligible to apply for the post of Examiner as they fulfil all the eligibility criteria in respect of essential qualification. Since, as per the advertisement, the cut-off date in respect of age was 28.11.2019 and the applicants were overaged and ineligible to apply for the said post. Since the last date to filled up the online form was 28.11.2019 and, therefore, the applicants had approached before this Tribunal seeking the aforesaid relief.
2(c). By way of the present Original Application, the applicants are seeking age relaxation for applying on the post of Examiner on regular basis on the basis of number of years / months of their services rendered by them on the said post viz. Examiner on contract basis. It is stated that the issue involved in the present Original Application for granting age relaxation and some weightage of service / experience is no more res-integra and is decided by the 5 OA No.793/2019 Hon'ble Tribunal in the catena of judgments and also by the Hon'ble High Court and Hon'ble Apex Court.
2(d). It is stated that while applying the candidature under General Category / SC / ST category, the applicants were overaged by 1-2 years more particularly specified in the chart. The applicants have relied upon the judgment of the Hon'ble Supreme Court in the case of Union Public Service Commission Vs. Jamuna Kurup & Others decided on 21.02.2008 in Civil Appeal No.2294-2329 of 2008.
3. After notice, the respondent No.2 i.e. UPSC has filed their reply and contested the claim of the applicants stating as under :
"3.1. That Sixty Five (65) [9-SC, 5-ST, 17-OBC, 6-EWS, 28-UR & 4-PWBDs (2-Low Vision & 2-Hard of Hearing)] vacancies for the posts of Examiner of Trade Marks and Geographical Indica- tions in the Office of Controller General of Patents, Designs and Trade Marks (CGPDTM) under the Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry were advertised vide Commission's advertisement No.15 of 2019 (Item No.1, Vacancy No.19111501209) (Annexure R-1) on 09.11.2019. The post lies in Level-7 (Rs.44900-142400/-) in the Pay Matrix of 7th CPC.
3.2. As per RRs and advertisement issued for the said post, the age limit is 30 years and the same is relaxable for PH/SC/ST/OBC candidates and Regularly appointed Central Government / UT Government Servants as per instructions / orders issued by the Govt. of India.
3.3. As per the advertisement issued, date for determining the eligibility of all candidates in every respect is the prescribed 6 OA No.793/2019 closing date for submission of online recruitment application (ORA) and the closing date for submission of online applications for the post in question was 28.11.2019. Recruitment action to fill up the said posts is under process.
3.4. It is submitted that in para 5(c) under 'Instructions and additional information to candidates' of the aforesaid advertisement, regarding age relaxation, it was stipulated that the upper age limit is relaxable for Central / U.T. Govt. Servants up to 5 years in accordance with the instructions or orders issued by the Government of India from time to time. A candidate claiming to belong to the category of Central Government servant and thus seeking age relaxation under this para would be required to produce a Certificate in the prescribed proforma issued after the date of advertisement from his / her Employer on the Office letter head to the effect that he / she is a regularly appointed Central Government Servant and not on casual /adhoc/daily wages/hourly paid/contract basis employee. 3.5. Sh. Atul Kumar Singh (EWS) (DOB 10/05/1989) and 4 others [Sh. Manoj Kumar Manjhi (SC) (DOB - 28/03/1983), Ms. Priyanka Maruti Gade (SC) (DOB 27/09/1984), Ms. Florina Simon Almeida (GEN) (DOB-05/04/1989) and Ms. Laxmi Kodnani (GEN) (DOB - 10/06/1989)] tried to apply online for the said post but their online applications were not accepted by the Commission because they are over aged as per age limit prescribed in the RRs and the advertisement issued for the said post. In this connection, it is also stated that all the applicants filing the above mentioned OA are working on contract basis in the O/o the Controller General of Patent, Design and Trade Marks, Mumbai under the Department for Promotion of Industry and Internal Trade, Ministry of Commerce & Industry so as per the instruction mentioned in para 4 above, they are not eligible to get benefit of age relaxation as Central Government Servant. As per RRs and instructions mentioned in the advertisement issued for any post, for obtaining benefit of age relaxation as Central Government Servant, the candidate must be a regular Central Government Servant / Employee.
3.6. It is stated that as per the instructions mentioned in the advertisement issued for the said posts, only those Central Government Servants are eligible to get benefit of age relaxation as Central Government Servants who are working on regular 7 OA No.793/2019 basis in any Ministry/Department/Organization of the Central Government and they have also to produce a Certificate in the prescribed proforma issued after the date of advertisement from his / her Employer on the Office letter head to the effect that he / she is a regularly appointed Central Government Servant. In the present case, all the applicant filing the OA are working on con- tract basis in the O/o the Controller General of Patent, Design and Trade Marks, Mumbai under the Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, so as per the instruction mentioned above, they are not eligible to get benefit of age relaxation as Central Government Servant. As per RRs and instructions mentioned in the advertisement, for obtaining benefit of age relaxation as Central Government Servant, the candidate must be a regular Central Government Servant / Employee."
4. Respondent Nos.1 and 3 have also filed their separate reply stating that the Recruitment Rule for the post of Examiner makes it clear that the said post has to be filled by participating in the selection process which is to be conducted by the UPSC. The respondents further submit that the applicant has come to be appointed in response to the advertisement dated 01.08.2015, a careful perusal whereof would show that the applicant was well aware that he was been considered for selection on contract basis on a consolidated pay package of Rs.35,000/- per month. He was also aware that his appointment for a period of one year and that the same can be terminated at any time without any notice and shall not confer any right of for regularisation, absorption, permanency or continuation beyond the stipulated period. The applicant walked into 8 OA No.793/2019 this contract with his eyes open and is, therefore, stopped from claiming benefits which were clearly not available to him in the original contract itself.
4(a). It was further submitted that granting the age relaxation will be clearly de-hors the Recruitment Rule and such a concession cannot be afforded to a person whose case for regular appointment is clearly hit not only by the principle of estoppels but also the principle of acquiescence.
4(b). The respondents further submitted that the age relaxation cannot be granted by Courts and Tribunals de-hors the rules. In this regard, the respondents submit that even there is a clause in the Recruitment Rule for grant of concession, the same cannot be granted to the individual but only to a class of individuals. Further, a Court or Tribunal cannot compel the respondents to relax the rule as per the law laid down by the Hon'ble Supreme Court in the case of Union of India vs. M.S. Heble (Deceased) Through LRS. & Another reported in 2002 SCC (L&S) 462 decided on 29.07.1998 in Civil Appeal No.6250/1997 (Annexure R-3). In the light of the aforesaid submissions, the respondents respectfully as per the law laid down by the Hon'ble Supreme Court in the OA be dismissed with cost.
9 OA No.793/20194(c). Further, it is stated that in view of the huge backlog in Examination and consideration of reply against the office objection, the Trademark Registry was permitted to engage Examiners on Contract Basis from time to time as process of regular appointment through UPSC takes considerable time. It may be noted that Examiners on contract basis are engaged only for the period of one year and the period of engagement gets suo moto terminated at the end of the particular period i.e. 31st March of the respective Financial Year.
4(d). The respondents further submitted that the applicant who is working in the Trade Marks Registry on contract basis are appointed on the basis of summary process adopted by the Local Interview Committee for limited period of one year and not by the UPSC which is sole authorized body for regular recruitment under said Recruitment Rules, which is also the constitutional body for the purpose. The applicant who is seeking the age relaxation and weight-age in respect of his service rendered by him on contract basis on the post of Examiner is not valid and cannot claim such type of relaxation and is not as per the Recruitment Rules applicable for the post of Examiner. The said relaxation can be given only to the employee who is working on regular basis or is rendering the 10 OA No.793/2019 services on Ad-hoc basis and not to the persons working on contract basis. Therefore, on the aforesaid basis, the respondents have prayed for dismissal of the OA.
5. In the present Original Application along with other similar OA, this Hon'ble Tribunal vide order dated 28.11.2019 considered the case for grant of interim relief and the following interim relief was granted :
3(xiii) However, at this stage, without going into detailed merits of the OAs, considering the facts that the present applicants were appointed on contract basis by the respondents by selection after inviting applications through public advertisement, today is the last day for submission of the online applications and the interim relief granted by this Tribunal in some other similar cases, we grant interim relief to the applicants by directing the respondent No.2 i.e. Secretary, UPSC, Dholpur House, Shahjahan Road, New Delhi to allow these present 16 applicants to submit their online applications, failing which offline applications, on purely provisional basis and if they participate in the selection process, their results should be kept separately in a sealed cover, which may be opened only after final disposal of these OAs by this Tribunal."
6. During the pendency of the present Original Application, the result of two applicants of present OA was kept in a sealed cover which is clear from notice of result, Annexure MP-3, filed by the applicant along with MA No.238/2022.
7. Further, proceedings dated 29.09.2023 is relevant for deciding the present issue, which reads as under :
11 OA No.793/2019
"This is a batch of five OAs filed by the applicants wherein they are seeking age relaxation and weightage in respect of the service rendered by them on contract basis on the post of Examiner since 2016 onwards.
During the pendency of these OAs, regular recruitment process in the post of Examiner was conducted by the respondent No.2 and all the applicants were permitted by this Tribunal to appear in the said recruitment test. We are informed that the result of the said recruitment test was published and except one or two of the applicants, rest of the applicants have not been able to clear the said written test. After the written test, an interview was also conducted and we are informed that the results of the said interview have also been published and the selected candidates have already joined. However, there is no clarity which applicant amongst these applicants was declared successful in the written test and interview.
We adjourn this batch of OAs today with a direction to the respondent No.2 if the result has not been declared pertaining to the applicants or same is kept in sealed cover, the respondent shall produce the sealed cover on the next date.
Adjourned to 26th October, 2023.
A copy of this order be provided to learned counsel appearing on behalf of the respondent No.2 i.e. UPSC by the Registry.
Later on: Mr. V.B. Joshi, counsel for the respondent No.2 alongwith Shri R.R. Shetty, counsel for the respondent No.1 and Ms. Asmita Pendharkar i/b Shri R.G. Walia met in the chamber and informed that the order dated 04th April, 2022 passed by this Tribunal was for the issue of notice in MA No.238/2022 to which Mr. Joshi has filed his reply on 16th September, 2022. Since the MA is pending and has not been decided, he requests that the MA should be heard and decided first before passing any order on this.
Accordingly, list these matters on 10th October, 2023 for hearing on MA No.238/2022.
The order dictated in the Court is modified to this extent."12 OA No.793/2019
8. In proceedings dated 19.12.2023, it is recorded that since applicant Nos.3, 4 and 5 have not passed the examination, therefore, the OA is infructuous in respect of said applicants. The proceeding is reproduced herein below:
"M.A.754/2019 for filing this application jointly is allowed.
Applicant nos.1 and 2 remain to pursue the OA as Applicant nos.3,4 and 5 have not passed the examination, therefore, the O.A. is infructuous in respect of the said applicants.
List the matter for orders on 22.01.2024."
Therefore, as per proceeding dated 19.12.2023, now in the present OA only claim in respect of applicant Nos.1 and 2 are required to be considered.
9. We have heard the learned counsels for the parties and perused the pleadings and documents available on record.
10. Learned counsel for the applicants vehemently argued that by public notice dated 01.08.2015 and 12.02.2019, the respondent No.3 invited applications from suitable candidates for engagement as Examiner for Trade Marks purely on contract basis. The aforesaid public notice prescribes the essential qualification and age limit. It is contended that as per chart, Annexure A-3, applicant No.1 was appointed on 03.07.2018, whereas, applicant No.2 was 13 OA No.793/2019 appointed on 12.07.2017, since on the cut-off date i.e. on 28.11.2019, they were overaged and, therefore, they are seeking relaxation in age limit.
11. It is pointed out that Advertisement No.15/2019 (Annexure A-4) was issued by the respondent No.2 and Clause 5 provides concession and relaxation. As per Clause 5(c), the relaxation is provided to only such Government servants who are appointed on a regular basis as a Central Government servant and such candidates was required to produce a certificate in prescribed proforma issued after the date of advertisement from his/ her from the office letter head.
12. It is contended that although applicants were working on the relevant cut-off date on the contract basis, however, appointment on contract basis also was made by the respondent No.3 through advertisement and selection process by prescribing the conditions as per the relevant Recruitment Rules.
13. It is submitted that in fact, it was the appointment after following the due selection process and, therefore, merely on the basis of appointment of contract basis, their right to claim age relaxation in terms of Clause 5(c) of the advertisement cannot be curtailed. Applicants were not the back door entry and in fact, 14 OA No.793/2019 possessing the requisite educational qualification. Therefore, the aforesaid Clause 5(c) needs to be interpreted liberally by the respondent No.2.
14. It is further contended that the Recruitment Rules namely the Trademarks and Geographical Indications (Registry / Registrars/ Examiners) Recruitment Rules, 2011 and Schedule Appended thereto, provides age limit of thirty years in respect of post in concerned i.e. Examiner of Trade Marks and Geographical Indications. However, the relaxation of five years in accordance with the instructions or orders issued by the Central Government can be granted to a Government servant. It is contended that for all practical purpose, the applicants are serving with the respondent No.3 as a Government servant.
15. During the course of the arguments, learned counsel for the applicant placed reliance on the judgment of the Hon'ble Punjab and Haryana High Court at Chandigarh in CWP No.12069/2015 (O&M) decided on 06.02.2017 in case of Union Public Service Commission Vs. Sunita Sharma and others to contend that the Hon'ble High Court of Punjab and Haryana by interpreting the aforesaid Clause 5(c) granted the relief in favour of the employees who were serving similarly on the contract basis and, therefore, OA 15 OA No.793/2019 may be allowed.
16. On the other hand, learned counsel for the UPSC and the official respondents, on the basis of their reply, vehemently argued that since Clause 5(c) of the advertisement specifically bars causal / adhoc / daily wage / hourly paid and contract basis employee for giving any relaxation in age and, therefore, applicants are not entitled for any relief.
17. It is further contended that grant of any relaxation to the applicant de hors the statutory rule is not permissible. It is further contended that a Court / Tribunal cannot compel the respondents to relax the rules as per the law laid down by the Hon'ble Supreme Court in the case of M.S. Heble (supra).
18. During the course of the respondents relied on the following judgments of the Hon'ble Supreme Court in the case of :
(i) State of Maharashtra and Others Vs. Anita and Another, reported in (2016) 8 SCC 293 decided on 12.07.2016,
(ii) State of Haryana and others Vs. Charanjit Singh and others, reported in (2006) 9 SCC 321 decided on 05.10.2005,
(iii) Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and others, reported in (2006) 2 SCC 482 and on that basis, it is submitted that OA is liable to be dismissed.16 OA No.793/2019
19. After hearing the learned counsels for the parties and after perusal of the record, it is not in dispute that the respondent No.2 had issued Advertisement dated 15/2019 for the 65 posts of Examiner of Trade Marks and Geographical Indication, in which, the prescribed maximum age is 30 years. The last date of submission of online form was 28.11.2019. Clause 2 provides as under :
"2. Age Limits : The age limit for the post has been given in the advertisement. For certain age concessions admissible to various categories please go through the instruction regarding Concessions & Relaxations."
20. Clause 5 & 5(c) is in respect of concession reads as under :
5". Concessions & Relaxations :
(a)...
(b)...
(c) Age relaxation for Central Government employees:
The upper age limit is relaxable for Central/U.T. Govt. Servants up to 5 years as per instructions issued by the Govt. of India from time to time. (10 years for persons belonging to Scheduled Castes/Scheduled Tribes and 8 years for persons belonging to other Backward Classes in respect of the posts reserved for them) in accordance with the instructions or orders issued by the Government of India. A candidate claiming to belong to the category of Central Government servant and thus seeking age relaxation under this para would be required to produce a Certificate in the prescribed proforma issued after the date of advertisement from his/her Employer on the Office letter head to the effect that he/she is a regularly 17 OA No.793/2019 appointed Central Government Servant and not on casual/adhoc/daily wages/hourly paid/contract basis employee.
The age relaxation will be admissible to such of the Government servants as are working in posts which are in the same line or allied cadres and where a relationship could be established that the service already rendered in a particular post will be useful for the efficient discharge of the duties of the post(s) recruitment to which has been advertised. Decision in this regard will rest with the Commission."
21. Further, the relevant Recruitment Rules called as "Trade Marks and Geographical Indications Registry (Registrars and Examiners), Recruitment Rules, 2011 and Clause 5 of the said rule is reproduced herein below :
"5. Power to relax : Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect of any class or category of persons."
- SCHEDULE -
(1) (2) (3) (4) (5) (6) (7)
6 Examiner of 61*(2011) General Pay Selection Not Not exceeding
Trade Marks Subject to Central Band-2, applicable 30 years.
and variation Service, Rs.9300-
Geographical dependent Group 'B' 34800 (Relaxable for
Indications on Gazetted plus Government
Workload Non- (Grade sevants up to
Ministerial Pay of five years in
Rs.4600) accordance
with the
instructions or
orders issued
by the Central
Government).
Note: The
crucial date for.
determining
18 OA No.793/2019
the age limit
shall be the
closing date for
receipt of
applications
from
candidates in
India, (and not
the closing
date
prescribed for
those in
Assam,
Meghalaya,
Arunachal
Pradesh,
Mizoram,
Manipur,
Nagaland,
Tripura,
Sikkim, Ladakh
Division of
Jammu and
Kashmir State,
Lahaul and
Spiti District
and Pangi Sub-
Division of
Chamba
District of
Himachal
Pradesh,
Andaman and
Nicobar
Islands
Lakshdweep).
22. Looking to the aforesaid Schedule of Recruitment Rules, Column No.7, it is clear that in respect of age, it is mentioned that "not exceeding 30 years" (relaxable for Government servants upto five years in accordance with the instructions or orders issued by the Central Government). Meaning thereby, the discretionary powers to relax age up to five years was provided to the Authority, on the basis 19 OA No.793/2019 of instructions and orders issued by the Central Government. In consonance of the aforesaid statutory rules, Advertisement, Annexure A-4, Clause 5(c) provides that the upper age limit is relaxable for Central / UT Government servants upto five years as per the instructions issued by the Government of India from time to time (ten years for persons belonging to SC / ST and eight years for the persons belonging to other Backward Classes in respect of the posts reserved for them.
23. Although Clause 5(C) provides that such Central Government employees should be appointed regularly for claiming age relaxation and to produce a certificate in the prescribed proforma and employee working on a causal / adhoc basis / daily wages / hourly paid / contract basis are shown as ineligible. This clause further provides that the age relaxation will be admissible to such of the Government servants as are working in posts which are in the same line or allied cadres and where a relationship could be established that the service already rendered in a particular post will be useful for the efficient discharge of the duties of the post(s) recruitment to which has been advertised and in this regard, the Competent Authority is to take a decision i.e. UPSC. 20 OA No.793/2019
24. Therefore, question arises for consideration is whether the applicant Nos.1 and 2 are eligible and entitled to get the benefit of age relaxation, although, they are working on contractual basis.
25. From the reply of the respondent Nos.1 and 3, it is not in dispute that applicants were appointed on contractual basis, after following the selection process, in which, the conditions prescribed for participating in the said selection process as per the Recruitment Rules. The only objection raised by the respondent Nos.1 and 3 is they were appointed on contractual basis in view of the huge backlog in examination and consideration of reply against the office objection, the Trademarks Registry was permitted to engage Examiners on contract basis from time to time as the process of regular appointment through UPSC takes considerable time. Meaning thereby, the appointment of the applicants was made on contract basis after following selection procedure, although, the mode of selection only on the basis of interview.
26. In fact, normally it is the prerogative and the domain of the employer to see that what criteria is to be laid down for selection process. It is not the case of the respondent Nos.1 and 3 that at the time of appointment on contractual basis, the applicants were not possessing the requisite qualification as per the Recruitment Rules 21 OA No.793/2019 and, therefore, certainly the appointment of the applicants on the post of Examiner though on the contract basis cannot be said to a back door entry.
27. Now, coming to schedule of Recruitment Rules which prescribed age limit vis-à-vis Clause 5(c) of the Advertisement issued by the UPSC, it is clear that there is a power of age relaxation in Recruitment Rules and Clause 5 specifically authorizes the UPSC to exercise the discretion in given case. In the present set of facts, when the initial appointment on the contractual basis of the applicants was not a back door entry and they were appointed on contractual basis after following selection process, then UPSC can exercise its discretion in respect of the applicants fairly and reasonably manner by treating them to be a regular employee for this limited purpose of Central Government, as they are discharging same work as contract employee, which may be useful for the department for the efficient discharges of the duties. When specific authority i.e. UPSC in present case has entrusted with the power to exercise discretion, then such authority is required to exercise the same in fair and reasonable manner, in advancement of justice, rather than to curtail the legitimate right available to person concerned.
22 OA No.793/2019
28. At this stage, it is relevant here to reproduce paragraphs Nos.21 and 22 of the judgment in the case of Sunita Sharma (supra) :
"21. The case law discussed above spells out that where the contractual appointment has not been made by way of a transparent mode of recruitment consistent with the Recruitment Rules, the appointee does not acquire the status of 'Government servant' and thus cannot claim the benefit of age relaxation. Similarly, where the advertisement on age relaxation does not specify so, the classification between 'regular' or 'ad hoc/temporary' Government servants is uncalled for as it defeats the very purpose of age relaxation. Further where peculiar facts and circumstances so warrant, the Court can exercise its discretionary jurisdiction to do complete justice and direct the authorities to consider the grant of age relaxation.
22. Applying the above summarized principles to the facts and circumstances of the cases in hand, we are satisfied that no interference with the order(s) passed by the Tribunal is called for. We say so for the reasons that firstly, most of the respondents are working on ad hoc/contract basis for the last 10/12 years. Their contractual employments are not protected under any Court order rather they have been allowed to continue as such by the Chandigarh Administration at its own. Secondly, there is nothing on record to suggest that there were Recruitment Rules formulated by Chandigarh Administration at the time when the private respondents were appointed on ad hoc/contract basis. These Rules were notified in the year 2011, namely, much after the appointment of private respondents. Thirdly, the respondents were appointed in conformity with Articles 14 & 16 of the Constitution, through an open competition and by inviting applications by way of public advertisements. The appointment of none of them can be termed as a back-door entry. Fourthly, it has come on record from the averments made in preliminary submissions No.(2) of the written statement filed by the Chandigarh Administration before the Tribunal that requisition for filling up some of the posts of Lecturer (including one post of Lecturer/Assistant Professor in Dance) was sent to UPSC in the year 2003 but the Commission returned the requisition on 13.01.2004 asking the administration to modify its Recruitment Rules and bring 23 OA No.793/2019 them in conformity with the UGC Regulations as notified on 31.07.2002. The Chandigarh Administration took more than 8 years in notifying the new Recruitment Rules of 2011 and 10 years in sending fresh requisition to the Commission. The red- tapism in the Chandigarh Administration has led to complete denial of even a single opportunity to the private respondents to compete for regular selection. Thus, it will be wholly unjust and iniquitous to say that the private respondents cannot show their worth for regular appointment even once in their life time because they have become overage due to the inordinate delay not attributable to them at all. Sixthly, the Government of India also needs to re-visit its administrative decision of restricting the benefit of age relaxation only in favour of regular employees. Ordinarily, a person who is in regular employment might not be keen to compete for yet another regular post save where the post occupied by him/her is of a lower status. On the other hand, the ad hoc/temporary employees who have been appointed through public advertisement or Employment Exchange would always be eager to compete for regular selection for the security of tenure. If such employees are deprived of the opportunity to compete at the whims and fancies of the authorities, it will be travesty of justice and denial of equal opportunity to compete for public employment and would thus be hit by Articles 14 & 15 of the Constitution unless the tearing effect of discrimination is wiped out by granting age relaxation to them."
29. So far as, judgment in case of Anita (supra), on the basis of principal of estoppel of the claim of the said applicants were denied, whereas, in the present case, statutory rules itself provide for relaxation though in favour of regular employee. Similarly, in case of Charanjit Singh (supra), the question of 'equal pay and equal work' was involved. Further, in the case of Girish Jayanti Lal Vaghela (supra) was taken into consideration by the Hon'ble Punjab and Haryana High Court in the case of Sunita Sharma (supra) in 24 OA No.793/2019 paragraph No.15 of the said judgment vis-à-vis contractual employee. Further, in case of M.S. Heble (supra), the question in respect of grant of pension, in derogation of the relevant rules was the subject matter and, therefore, all the aforesaid judgments are distinguishable on facts and not applicable to the peculiar facts and circumstances of the present case.
30. In the present case, during the pendency of the present Original Application, the applicants have filed MA No.238/2022 for grant of interim orders, which was directed to be considered at the time of final hearing vide proceeding dated 29.09.2023. Since, the present Original Application is disposed of with directions and, therefore, there is no requirement of passing a separate order on the said MA No.238/2022 and the same is disposed of accordingly.
31. So far as relief prayed in Para 8(b) is concerned, the applicants have not raised any arguments, nor any proper pleadings are available on record in this regard and, therefore, the applicants are not entitled for relief prayed for in Para 8(b) of the O.A.
32. Thus, in view of the aforesaid discussion, the OA is disposed of with the following directions :
(a) Respondent No.2 is directed to open the seal cover and communicate the result to the applicants Nos.1 and 2.25 OA No.793/2019
(b) If the applicant Nos.1 and 2 declared as successful, then the respondent No.2 is directed to take decision in terms of Clause 5(c) keeping in view the observations made above and if treated as eligible for relaxation of age then the respondents shall consider the case of the applicant Nos.1 and 2 for appointment of the post of Examiner of Trade Marks and Geographical Indications.
(c) The whole exercise shall be completed within a period of 90 days from the date of receipt of a certified copy of this order and communicate to the applicants.
33. There shall be no order as to costs.
34. Pending MAs, if any, stand closed.
(UMESH GAJANKUSH) (SHRI KRISHNA)
MEMBER (J) MEMBER (A)
Digitally signed by Khushboo Mittal Gupta
Khushboo Mittal DN: C=IN, O=Personal, OID.2.5.4.65=6dbe5c2d6885491895b4fb8ef3642a0b, Phone= 8985c11fad2960cfbb159f98c2764347c7a4ffbc50d436d4fe5701484c759b92, PostalCode= 411060, S=Maharashtra, SERIALNUMBER= 870759ef2f1952335c4269bf3698e2204e6521bc46faf0d3fefceadf0c12c639, CN=Khushboo Mittal Gupta Gupta Reason: I am the author of this document Location:
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