Central Administrative Tribunal - Chandigarh
Argued By: Mr. Pankaj Mohan Kansal vs Union Of India Through The Secretary To ... on 15 May, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA No.060/00011/2016 Date of decision: 15.05.2017.
CORAM: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Sunil Sharma son of Sh. R.C. Sharma age 42 years working as Junior Medical Record Officer, Central Registration Department, Postgraduate Institute of Medical Education & Research (PGIMER), resident of House No. 22, Type-B/II, Sector-12, PGI Campus, Chandigarh (Group-C).
Argued by: Mr. Pankaj Mohan Kansal, Advocate.
. APPLICANT
Versus
1. Union of India through the Secretary to Government of India, Ministry of Health & Family Welfare, Department of Health & Family Welfare, New Delhi.
2. Postgraduate Institute of Medical Education & Research, Sector 12, Chandigarh through its Director
3. Senior Administrative Officer (HR), PGIMER, Sector 12, Chandigarh.
Argued by: Mr. P. K. Khindria, Advocate.
RESPONDENTS
ORDER (ORAL)
HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J):-
1. The challenge in this Original Application (OA), filed by applicant Sunil Sharma son of R.C. Sharma, is to the impugned notices dated 13.11.2015 (Annexure A-6) and dated 31.12.2015 (Annexure A-1), whereby he was declared not eligible for the post of Medical Record Officer (for brevity MRO), by treating him over-age.
2. The epitome of facts and material, which needs a necessary mention, for the limited purpose of deciding the core controversy involved in the instant OA, and emanating from the record, is that the applicant, whose date of birth is 23.11.1972, was initially appointed as Lower Division Clerk (LDC), in the office of Post Graduate Institute of Medical Education & Research, Chandigarh (For brevity PGI), vide letter dated 27.1.1998 (Annexure A-20). Thereafter, he was appointed to the post of Medical Record Technician (MRT), vide order dated 18.11.2004 (Annexure A-21). He was further promoted as Junior Medical Record Officer (JMRO) on 5.10.2010 (Annexure A-22). He was stated to have received a meritorious award dated 7.7.2015 (Annexure A-23), for his devotion and dedication to service.
3. The case set up by the applicant, in brief, in so far as relevant is, that as per the relevant recruitment rules, the next promotion from JMRO, is to the post of MRO, which is to be filled up by way of promotion, falling which by way of direct recruitment. One post of MRO was already vacant and two more posts became available in the year 2012, pursuant to the promotion of 2 MROs to the posts of Senior MROs, but the respondents did not convene the meeting of the Departmental Promotion Committee (DPC), for making promotion. On the other hand, in order to fill up 3 posts of MROs, by way of direct recruitment, advertisement dated 1.8.2014 (Annexure A-10), was issued by the respondents. The objection raised by the applicant and other JMROs that the posts of MROs are to be filled up by way of promotion, and not by way of direct recruitment, did not evoke any response. So, they sought permission to apply for the advertised posts of MROs. It was alleged that, vide orders dated 3.11.2014 rendered in O.A. No. 060/00186/2015 titled Jyoti Kumari Vs. PGIMR & others, this Tribunal directed the respondents to consider her case, for promotion to the post of MRO. One post of MRO was stated to have been withdrawn, by issuing corrigendum dated 30.12.2015 (Annexure A-8) by the respondents. However, the written test was conducted on 15.3.2015, and the result was declared by way of result sheet, (Annexure A-7), without disclosing the detailed marks obtained by each candidate.
4. The case of the applicant, further proceeds, that, although, he successfully cleared the written examination, but he was declared not eligible, for the said post on the ground of over-age, vide impugned notice dated 13.11.2015 (Annexure A-6). He made representation dated 23.11.2015 (Annexure A-5), requesting for waiving of upper age limit, by highlighting 17 years of service, rendered with the PGI. The applicant submitted a reminders dated 17.12.2015 (Annexure A-3) and dated 31.12.2015 (Annexure A-2). The matter was placed before the Legal Cell, who was stated to have suggested in affirmative, to grant age relaxation to the applicant. The competent authority has, however, issued impugned notice dated 31.12.2015 (Annexure A-1), calling the other candidates for interview, ignoring the claim of the applicant and declared him not eligible, being overage.
5. Aggrieved thereby, the applicant has preferred the instant OA challenging the impugned notices, Annexures A-1 and A-6, on the following grounds:-
(a) That the action of respondents in not calling the applicant for the interview scheduled for 08.01.2016 by declaring him Not Eligible by treating him overage and denying relaxation in age by restricting the age relaxation for internal candidate allowed upto 10 years is not only arbitrary, illegal and hit by equality clause enshrined in Article 14 and 16 of the Constitution of India but also against the settled law on the subject matter of grant of relaxation in age.
(b) That the applicant deserves to be allowed participation in the interview process by granting relaxation in age limit to the extent he has worked in institute on regular basis since 1998. Applicant is working on regular basis with the respondent Institute continuously since 04.02.1998. Applicant was within the age limit of 18-30 years i.e. 25 years, required at the time of his regular appointment on 04.02.1998. Applicant has to his credit more than 17 years unblemished service, as on 12.09.2014. While working with the Institute since 04.02.1998 applicant became overage. With the grant of restricted 10 years age relaxation by the Institute, the applicant is overage by one year 10 months 10 days, as on 12.09.2014, the last date of application / update of the challan receipt.
) That no nexus of object is going to be achieved by not granting the relaxation in age to the applicant, respondents cannot be allowed to play with the career of youth like the applicant, firstly, to employ them (on regular basis) for years together and to make him ineligible, without there being any constitutional justification.
(d) That the Honble Punjab and Haryana in judgment dated 10.09.1992 passed in C.W.P. No. 306 of 1992 titled Rajinder Kumar Goel Vs. PGIMER (Annexure A-12) has held that In such a situation, it would be reasonable to hold that the persons who are already in the service of the respondent-Institute should be granted the benefit of relaxation in such a way that they are not deprived of the chance to compete for the post. The Honble Court held that the provision in the Rule as also the advertisement prescribing an age limit of 40 years at least in respect of those already working in the Institute is unreasonable and persons already in the service of the Institute should be allowed to compete for the post. The judgment dated 10.09.1992 has attained the finality upto Apex Court with the dismissal of SLP No. 5015 of 1996.
(e) That by noticing the aforesaid judgment dated 10.9.1992, this Tribunal has been pleased to allow the O.A.No. 631-CH-2011 titled Ashok Kumar Sharma Vs. PGIMER, Chandigarh, vide order dated 12.09.2012 (Annexure A-13). The applicant therein was an in-service candidate holding the post of Junior Technician (X-ray), applied for appointment to the post of Hospital Engineer which had been advertised for being filled up by means of direct recruitment on regular basis. The plea raised by him for consideration in the relevant behalf came to be negated by the competent authority on the premises that even after the grant of the age-relaxation available to in-service candidates, he was already over-age. After noticing the High Court decision the Tribunal while quashing the impugned order therein held that the applicant is eligible for consideration for appointment to the post aforementioned which (consideration) shall not be denied to him on point of his having crossed the upper age limit aforementioned.
(f) That by noticing the aforementioned decisions in the case of Rajinder Kumar Goel and Ashok Kumar Sharma, this Tribunal has been pleased to allow the O.A.No. 1165 of 2003 titled Madan Parmar Vs. PGIMER vide order dated 01.05.2014 and directed the respondent Institute to consider the applicant for appointment to the post of Nuclear Medicine Physicist without reference to his being overage, as per the advertisement dated 6.2.2013 (Annexure A-14). The order of this Tribunal in Madan Parmar case has already been upheld by the Honble Punjab and Haryana High Court vide judgment dated 10.02.2015 passed in C.W.P. No. 18562 of 2014 (Annexure A-15) and by the Honble Supreme Court vide order dated 31.08.2015 passed in S.L.P. No. ) No. 14779/2015 (Annexure A-16).
(g) In the case of Sh. Kuldeep Soni appointed as Junior Photographer, the Institute has allowed relaxation in the upper age limit (Annexure A-17). Also, vide office order dated 4.10.2004, the upper age limit for the internal / departmental candidate for the post of Senior Technical Officer at the PGIMER was waived of (Annexure A-18).
(h) That the applicant has already been made to suffer firstly due to non-convening of timely DPC by the Institute, he was promoted to the post of JMRO belatedly. Had the applicant been promoted as JMRO in time, he would have stand promoted as MRO by now, and the present situation would not have arisen.
(i) That in the matter of relaxation in age, the Honble Courts have come to the rescue of even contractual employees. The case of applicant is on better footing as he is working on regular basis since the year 1998 with the respondent Institute and has rendered outstanding service of more than 17 years and handled many challenging assignments and independent charge/s of different sections.
5. Levelling a variety of allegations, and narrating the sequence of events in detail, in all, the applicant claims that being already in long service of PGI, he was entitled to relaxation of age, but his claim was arbitrarily rejected by the respondents. On the strength of the aforesaid grounds, the applicant seeks to challenge the impugned notices, Annexures A-1 and A-6 and claim appointment on the pointed post, in the manner indicated hereinabove.
6. On the contrary, the respondents have refuted the claim of the applicant and filed the written statement, wherein it was pleaded that only the relaxation of age of 10 years was permissible to internal candidates as per policy decision dated 10.1.2007 (Annexure R-1), which was granted, and since even after the grant thereof, the applicant was still over-age, so he was rightly declared as not eligible by the Competent Authority. However, it was admitted that, he joined the Institute on 4.2.1998, as per letter dated 27.1.1998 (Annexure A-20), was appointed to the post of MRT vide order dated 18.11.2004 (Annexure A-21) and was further promoted as JMRO on 5.10.2010 (Annexure A-22). It was acknowledged that in the case of Jyoti Kumari (supra), relaxation in age was granted, as per the directions of this Tribunal. The representations submitted by the applicant, were stated to have been duly considered and rightly rejected by the respondents.
7. Instead of reproducing the entire contents of the reply, and in order to avoid repetition of the facts, suffice it to say that, virtually acknowledging the factual matrix and reiterating the validity of the impugned notices, Annexures A-1 and Annexure A-6, the respondents have stoutly denied all other allegations and grounds, contained in the OA, and prayed for its dismissal.
8. Controverting the pleadings of the reply filed by the contesting respondents and reiterating the grounds contained in the OA, the applicant has filed the rejoinder. That is how, we are seized of the matter.
9. Having heard the learned counsel for the parties, having gone through record with their valuable assistance, and after considering the entire matter, we are of the firm view that the instant OA deserves to be accepted, in the manner and for the reasons, mentioned herein below.
10. Ex-facie, the argument of the learned counsel for the respondents that having extended the benefit of relaxation of age of 10 years, as available to the internal candidates, as per Annexure R-1, since the applicant still remains over-age, so the respondents have rightly declared him not eligible, is not only devoid of merit, but mis-placed as well.
11. As is evident from the record that the applicant has joined the PGI on 4.2.1998 as LDC. He was selected for the post of MRT and joined on 18.11.2004, and then promoted as JMRO on 5.10.2010, as per appointment / promotion orders Annexures A-20, A-21 and A-22 respectively. The applicant was working on the post of JMRO, at the relevant time. Next promotional post is MRO. In order to fill up that post, the respondents have issued Advertisement, Annexure A-10. As per terms and conditions of advertisement, the age limit for the said post was between 18-30 years. As per guidelines dated 10.1.2007, Annexure R-1, the applicant is entitled to age relaxation of 10 years, being internal candidate. According to the respondents, since having extended the relaxation of age of 10 years, the applicant still remains over age, so he was rightly declared as not eligible candidate for the post of MRO.
12. Thus, it would be seen that the facts of the case are neither intricate, nor much disputed, and fall within a very narrow compass, in order to decide the real controversy, between the parties. Such being the position on record, now the short and significant question, that arise for our consideration in this case, is as to whether, the respondents was legally empowered to declare the applicant (internal candidate), as over-age by less than 2 years, or not?
13. Having regard to the rival contentions of the learned counsel for the parties, to our mind, the answers must obviously be in the negative, in this regard.
14. What cannot possibly be disputed here, is that the applicant is working in the PGI since 4.2.1998. He appeared in the written examination as an internal candidate for appointment to the post of MRO, and is short in age by less than 2 years only. We are of the considered view that, once it is proved on record that the applicant has appeared in the written examination as an internal candidate for the post of MRO, then he cannot be non-suited on the ground of over-age. This matter is no longer res-integra and is now well settled.
15. An identical question came to be decided by the Honble Punjab & Haryana High Court in the case of Rajinder Kumar Goel Vs. PGIMER, 1993 (2) SCT, 446, wherein having considered the similar clause, it was ruled as under :-
13. Even the prescription of an age limit of 40 years appears to be unreasonable. It is no doubt correct that an employer can prescribe a reasonable age limit so that a person is available for service for a reasonable period. However, keeping in view the fact that persons who have already put in long years of service, like the petitioner who has served the Institute from the year 1973 to 1992, i.e., for about 19 years and may have crossed the age limit of 40 years, would be rendered totally ineligible the action does not appear to be fair. In such a situation, it would be reasonable to hold that the persons who are already in the service of the respondent-Institute should be granted the benefit of relaxation in such a way that they are not deprived of the chance to compete for the post.
16. Not only that, it was also held in O.A.No.631-CH-2011 Ashok Kumar Sharma Vs. PGIMER, decided on 12.9.2012 (Annexure A-13) and O.A.No.1165-CH-2013 titled Madan Parmar Vs. PGIMER decided on 1.5.2014 (Annexure A-14), by coordinate Benches of this Tribunal, that the applicant therein (internal candidate) cannot be non-suited on the ground of over-age. The judgment, Annexure A-14 was upheld by the Punjab and Haryana High Court, in CWP No. 18562 of 2014 titled PGIMER Vs. C.A.T. Chandigarh & Another decided on February 10, 2015, (Annexure A-15) wherein it was held that the employee therein deserved to be appointed, notwithstanding the age limit. It is not a matter of dispute that the judgment in the case of Madan Parmar (supra) was upheld by the Honble Apex Court also, in the case of PGIMER Vs. Madan Parmar, SLP No.14779/2015 decided on 31.8.2015 (Annexure A-16).
17. Therefore, it is held that indeed, respondents, have no power to declare, an internal candidate as ineligible, on account of his over age, in case for promotion to the next higher post, by way of direct recruitment. Hence, the contrary arguments of learned counsel for the respondents, stricto sensu, deserve to be and are hereby repelled. The law laid down in the indicated judgments, mutatis mutandis, is applicable to the facts of the present case, and is a complete answer to the problem in hand.
18. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
19. In the light of the aforesaid reasons, instant OA is accepted. The impugned notices dated 31.12.2015 (Annexures A-1) and dated 13.11.2015 (Annexure A-6) and all other instructions, relatable to declaring the applicant (internal candidate) as ineligible, on the ground of over-age, are hereby set aside. At the same time, the respondents are directed to treat the applicant as eligible and consider his case for appointment to the post of MRO, if he is otherwise found to be eligible on merits, within a period of one month from the date of receipt of a certified copy of this order. However, the parties are left to bear their own costs.
(SHEKHAR AGARWAL) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
Dated: 15.05.2017.
HC*
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OA No.060/00011/2016