Central Administrative Tribunal - Delhi
Shri Sandeep Kumar vs Union Of India on 11 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 2596/2011 Reserved on: 08.05.2012 Pronounced on:11.05.2012 Honble Mrs. Meera Chhibber, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Shri Sandeep Kumar, S/o Shri Mahendra Singh Sharma, R/o H.No.86, Village Samaspur Khalsa, P.O. Ujwa, New Delhi. ..Applicant (By Advocate: Shri Vishwendra Verma) Versus 1. Union of India Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi. Through Secretary. 2. The Deputy Director (Admn.), Safdarjung Hospital, New Delhi. 3. The Medical Superintendent, VMMC & Safdarjung Hospital, New Delhi. .. Respondents (By Advocate : Shri V.S.R. Krishna) ORDER
Honble Mrs. Meera Chhibber, Member (J) Applicant has sought a direction to the respondents to consider the application form of the applicant and appoint the applicant on the post of Remedial Gymnaster (Department of PMR) after fulfilling all requisite formalities required for the appointment of the said post.
2. The brief facts as stated by the applicant are that Safdarjung Hospital had advertised one UR post of Remedial Gymnaster (Department of PMR). The qualifications and experience required were: (1) Higher Secondary or its equivalent from a recognized Board. (2) Diploma in Physical Education from a recognized Institute (3) Minimum 3 years experience in the related field. The prescribed age limit for the post was 21-28 years. Since applicant fulfilled the eligibility, he applied for the post and specifically mentioned that he belongs to OBC category. He also annexed the certificate and requisite degree.
3. He didnt get any response so he enquired when he was orally informed that he is overage.
4. It is submitted by the applicant that he is entitled to get relaxation in age. Since he is the only eligible candidate, appropriate direction may be issued to the respondents to appoint him. Counsel for the applicant placed reliance on the judgment given by Honble Supreme Court in the case of Jitender Kumar Singh & Others Vs. State of U.P. and Others reported in 2010 (2) SCC 119. He submitted that the relaxation in age is granted merely to enable the reserved category candidate to compete them with the general category candidate, therefore, by not granting age relaxation, a reserved category candidate cannot be deprived to be considered for the post merely on the basis of being overage. Even though the vacancy is unreserved, he can still be granted relaxation in age for being considered. He has thus prayed that the OA may be allowed.
5. Respondents have opposed the O.A. They have stated that the applicant has no right to insist that the respondents should fill up the post advertised for. It is submitted that mere issuance of advertisement does not ipso facto mandate that the post advertised should be filled up at all costs. As a matter of fact, it is a settled law that even after selections, the respondents can take a decision not to fill up the post (Judgment of the Honble Supreme Court in Shankersan Dash relied on).
6. In any case, in the present case, it was specifically mentioned in the advertisement dated 27.12.2010 that the last date of submission of completed application forms is 30 days from the date of advertisement. The age limit prescribed for the post of Remedial Gymnaster was mentioned as 21-28 years reckoned as on the closing date of advertisement. Since the Date of Birth of the applicant as disclosed by him in his application form is 20.07.1982, therefore, on the closing date of receipt of application the applicant is over 28 years of age. They have thus submitted that the applicant is not eligible for the post due to being overage. The OA may, therefore, be dismissed, it being misconceived specially when no relief is sought to grant him relaxation in age and the advertisement has also not been challenged. They have placed reliance on OM dated 01.07.1998.
7. We have heard both the counsel and perused the pleadings.
8 Applicant had applied for the post of Remedial Gymnaster pursuant to the advertisement dated 27.12.2010 wherein it was specifically mentioned that age should be 21-28 years. Further clauses 3 and 11 read as under:
3. The upper age limit will be relaxable for Govt. servants in accordance with the instructions or orders issued by the Central Govt. from time to time.
11. Applications complete in all respects and along with attested copies of the testimonials must reach to the Safdarjung Hospital within 30 days from the date of advertisement. Age will be reckoned from the closing date of advertisement. There was no mention in this advertisement that age relaxation would be granted to SC/ST or OBC. On the contrary, it was specific that upper age limit would be relaxable for Government servants. Admittedly, applicant does not fall in this category, therefore, as per the advertisement applicant was not entitled to any age relaxation.
9. Counsel for the applicant relied on Jitendra Kumar Singhs judgment (supra) but perusal of same shows this judgment does not advance the case of the applicant at all because it deals with a different preposition and the facts are absolutely different. In that case in para 45 it is specifically mentioned that relaxation of age for various categories of candidates in accordance with the Government Orders issued from time to time was also admissible. This included five years' relaxation in age to Scheduled Caste, Scheduled Tribes, Other Backward Classes and dependents of Freedom Fighters. Relaxation of age was also provided in case of Ex-servicemen. The period of service rendered in Army would be reduced for computing the age of the Ex-Army personnel meaning thereby relaxation in age was admissible to SC/ST/OBC and dependants of freedom fighters which itself distinguishes the present case because in the case before us, no relaxation in age was made admissible to SC/ST/OBC. Even otherwise the issue in that case was whether reserved candidates could be adjusted against unreserved vacancies in view of their merit high up simply because they had availed relaxation in age. The contention of the petitioners was that the candidates who had availed waiver of fee and relaxation in age should be adjusted against the reserved vacancies even if they had scored more marks than the general candidates in open competition.
10. It is relevant to note that the candidates belonging to SCs, STs and OBCs were granted waiver of examination fee and also relaxation in upper age-limit, as provided in Section 8(1) of the U.P. Public Services (Reservation of Schedules Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Section 3 (6) of the Act provided that if a reserved candidate gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against vacancies reserved for reserved category. Government instructions dated 25.3.1994 also provided that if any person belonging to reserved categories is selected on the basis of merit in open competition along with general category candidates, he would not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against unreserved vacancies.
12. It was in the above facts held as under:-
In view of Articles 14, 15, 16 and 38 of the Constitution, it is permissible for the State to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16 (1) of the Constitution. Concessions and relaxations in fee or age provided to reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates on a par with General Category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates. If a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate. The concessions availed in the present case by reserved candidates had no relevance to determination of inter se merit on the basis of final written test and interview.
Concessions falling within Section 8 of the Act cannot be said to be relaxations in the standard prescribed for qualifying in the written examination. Relaxation in age-limit is merely to enable reserved category candidates to compete with general candidates, all things being equal. The State has not treated relaxation in age and fee as relaxation in the standard of selection, based on merit of a candidates in the selection test, i.e., main written test followed by interview. Such relaxation cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in competitive examination.
13. From above, it is clear this judgment does not advance the case of applicant because it nowhere stated that age relaxation must be given in all cases. This judgment only interpreted the provisions of the Act, therefore, reliance placed on this judgment is misplaced.
14. In the instant case, it is not even disputed by the applicant that he was overage as per the advertisement. He neither challenged the advertisement nor has sought the relief that he should be granted age relaxation in para 8 of the OA. He has simply prayed that he be considered and appointed to the post of Remedial Gymnastar (Department of PMR). Since there was no provision for relaxation in age for OBC category to which applicant belongs, the relief, as claimed, cannot be granted.
15. At this juncture it would also be relevant to refer to OM dated 1.7.1998 wherein it was clarified as follows:-
3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standard as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates, etc., the SC/ST/OBC candidate are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies.
16. In view of above OM and the facts as explained above, the relief, as claimed, cannot be granted. The OA is accordingly dismissed. No costs.
(Mrs. Manjulika Gautam) (Mrs. Meera Chhibber)
Member (A) Member (J)
Rakesh