Central Administrative Tribunal - Delhi
Ashish Bahad S/O Sh. R.P. Bahad vs National Council Of Educational ... on 15 March, 2007
ORDER Shanker Raju, Member (J)
1. Applicant, by virtue of this OA, has assailed his non-consideration as an OBC for age relaxation with all eligibility criteria fulfilled for the post of Assistant Public Relation Officer (APRO) and Public Relation Officer (PRO) notified under general category.
2. Applicant states that being an OBC candidate and as a Government servant on deputation to NCERT from Institution of Physically Handicapped under the Ministry of Social Justice he has acquired more than 11 years' experience in the media, which is requisite for his consideration to the post of APRO and PRO as well, it is stated that he is entitled for relaxation of age by three years and has relied upon the DoP&T OM of 15.10.1987.
3. Learned Counsel of applicant would contend, by placing reliance on a decision of the Coordinate Bench of this Tribunal at Madras in A. Ganesan v. Union of India and Ors. 2006 (3) ATJ 420, that as reservation and concessions are two different concepts, on a vacancy meant for open category, age relaxation is applicable to OBC candidates.
4. On the other hand, learned Counsel of respondents vehemently opposed the contentions and stated that applicant has not been considered for age relaxation, as he belongs to OBC and the post advertised was for general category. It is only against the OBC quota applicant would seek relaxation if the post is advertised in the aforesaid quota. It is also stated that the decision in Ganesan case (supra) would not apply, as it concerns promotion whereas present is a case of direct recruitment.
5. Learned Counsel would also contend that the note in the recruitment rules as to the relaxation of age and other concessions for SC/ST and other special category of persons in accordance with the orders issued by the Government would not apply for an OBC against a general post.
6. It is also stated that applicant who is working in a public undertaking is not a Government servant and relying upon the OM of DoP&T of 15.10.1987, it is stated that concession is available only to the departmental candidates, which applicant is not.
7. We have carefully considered the rival contentions of the parties and perused the material on record.
8. The genesis of reservation to OBC has emanated from the Constitutional Bench decision of the Apex Court in Indra Sawhney v. Union of India and Ors. 1992 Supp. (3) SCC 217, which further culminates into DoP&T OM of 13.8.1990, where 27% of the vacancies in civil posts filled through direct recruitment shall have to be reserved for OBC. Relaxation as per DoP&T OM dated 7.2.1995 in the age limit pertains to fulfilling the quota earmarked for OBC, the minimum standard can be relaxed in written test as well as interview in case of OBC as in the case of SC/ST candidates. However, the upper age limit is relaxable by three years for OBC candidates.
9. In DoP&T OM dated 21.12.1998, i.e., Central Civil Services and Civil Posts (Upper Age Limit for Direct Recruitment) Rules, 1998, OBC at serial No. XXI vide notification dated 7.2.1995, age relaxation by three years is prescribed for posts filled by direct recruitment.
10. Having regard to the above, we have no hesitation in mind that an OBC candidate is entitled to age relaxation as a concession but when he competes or applies for a post meant in his quota of 27%. It may be that while filling up his candidature for the post an OBC candidate qualifies on general merit then the relaxed standards would not be applicable, but when a post is advertised for a general category candidate, which is not meant for OBC and does not fall in the prescribed percentage of 27% fixed quota for OBC, he has a right to apply on the standards of a general candidate but not an OBC, failing which there would be a deemed reservation of relaxed standards to the OBC. The age relaxation is synonymous with an object to uplift the socially and educationally backward classes, i.e., OBC, but it has no object to encroach upon the quota meant for other categories, except when one qualifies on merit. By relaxed standards in age, one acquires eligibility for the post not meant for the requisite quota prescribed for OBC but against a general category post. It may be that OBC when competes and acquires the standard of a general category candidature he may be considered against that post.
11. The decision in Ganesan (supra) is a case of promotion where 50% of the posts in Group 'D' category are to be filled 50% by GDS and in such view of the matter applicability of SC/ST candidates and the decision referred to where distinction has been made between Article 16 (1) and 16 (4) cannot be made applicable mutatis mutandis to OBC, as for OBC the age relaxation available is against the earmarked posts notified under 27% of the quota.
12. Insofar as the second ground of accord of age relaxation to applicant in the post of PRO is concerned, it is only a Government servant or departmental candidate who is entitled to, on accord of relaxation, yet applicant who holds lien in public undertaking and is not a departmental candidate, this benefit would not be available to him. The contention put-forth by learned Counsel of applicant is misconceived to this regard.
13. In this view of the matter, we respectfully disagree with the decision of the Coordinate Bench in Ganesan (supra), where the following observations have been recorded:
22. The clarification in reference to relaxed standard has to be understood in the context of the relevant rules.
For instance the Indian Administrative Service (Appointment by Competitive Examination) Regulations 1955, provides for age relaxation under Regulation 4. Regulation 7 deals with the list of successful candidates. Sub Rule 2 of Regulation 7 says that candidates belonging to SC/ST may, to the extent of number of vacancies reserved for them be recommended by the Commission by the relaxed standard subject to the fitness of the candidates for selection to the service. The Proviso to Sub Rule says candidates who have been recommended without resorting to relaxed standards shall not be adjusted against vacancies reserved for SC/ST.
The implication of the above provision is that within the quota set apart for SC/ST the candidates shall be selected by relaxed standards. The Rule further states that those candidates selected without relaxed standards, shall not be adjusted against the quota. The relaxed standard is therefore referable only to the examination conducted for selection.
The Hon'ble Supreme Court in Union of India v. Satya Prakash , while referring to a similar provision of Civil Services Examination Rules, 1996 held that a reserved category candidate recommended by the Commission (UPSC), without resorting to the relaxed standard will have the option of preference from the reserved category but while computing the quota/percentage of reservation, the candidates will be deemed to have been allowed seat as an open category candidate. Their Lordships also referred and approved the view of the Hon'ble Supreme Court in Ritesh R. Sah v. DR. Y.L. Yamul .
Therefore, the concession given in the form of age relaxation, cannot take away the right of SC/ST candidates to claim for unreserved vacancies.
23. Applying the ratio and view of the decisions referred earlier, the applicant cannot be denied the age relaxation available to OBC candidates and consideration on the plea that the vacancy is meant for open category.
14. Accordingly, the only course left open to us, in the wake of the doctrine of precedent, is to refer this matter to the Hon'ble Chairman, on administrative side, for constituting a Full Bench, with the following reference:
Whether an OBC candidate can avail relaxation in age when he applies for a post exclusively advertised for the General Category candidate and whether concessions available to OBC would hold good irrespective of earmarked 27% reservation meant for them under direct recruitment.