Central Administrative Tribunal - Delhi
Sh. Mukesh Kumar vs Govt. Of N.C.T. Of Delhi on 28 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 162/2011 NEW DELHI THIS THE 28TH DAY OF APRIL 2011 HONBLE MR. JUSTICE P. SWAROOP REDDY, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Sh. Mukesh Kumar, S/o Sh. Chander Sain, R/o W-56, Badarpur Shahdara, Delhi-110032. Applicant. (By Advocate Shri T.D. Yadav) VERSUS 1. Govt. of N.C.T. of Delhi, Through Chief Secretary, Delhi Secretariat, I.P. Estate, New Delhi. 2. Administrative Officer, Govt. of NCT of Delhi, Ambedkar Institute of Technology, Geeta Colony, Delhi-110031. 3. Head of Office, Govt. of NCT of Delhi, Ambedkar Institute of Technology, Geeta Colony, Delhi-110031. 4. Principal, Govt. of NCT of Delhi, Ambedkar Institute of Technology, Geeta Colony, Delhi-110031. Respondents. (By Advocate Mrs. Avnish Ahlawat) ORDER
Justice P. Swaroop Reddy, Member (J).
The applicant was engaged as casual labourer w.e.f. 01.01.1986. Thereafter, he was re-engaged as Peon in Doordarshan w.e.f. 02.02.1987 to 03.04.1987 for three months. He was again re-engaged as Peon w.e.f. 14.12.1987 to 11.03.1988 for three months. He was later on terminated. The applicant and several others filed Writ Petition No. 324-25/1989 before the Honble Supreme Court seeking absorption as regular employee. The above writ petition was disposed of vide order dated 04.02.1992 with a direction to the respondent Delhi Administration to keep them on a panel if they are registered with the Employment Exchange and are qualified to be appointed to the relevant posts, give them preference in employment whenever vacancy occurs in the regular posts.
2. In pursuance of the above direction of the Honble Supreme Court, the respondents prepared the panel and call letters for interview were issued to persons in the panel for various posts in Group `D categories. The applicant appeared in several such interviews. Finally, when vacancy occurred in Ambedkar Institute of Technology (AIT), Gita Colony, the applicant was called for interview on 14.08.2008. He was given offer of appointment for the post of Peon in AIT vide letter dated 26.08.2008. He joined service on 13.10.2008 in the pay scale of Rs.2550-3200.
3. After completion of more than two years, the applicant was issued a show cause notice saying that the respondents came to know from a petition filed before the Central Administrative Tribunal by one Omendar Singh that at the time of appointment, the applicant was overage as he was 43 years and 10 months, as such his services are liable to be terminated.
4. The contention of the learned counsel for the applicant is that the applicant had not concealed the fact of his date of birth at the time of his initial appointment and he produced all the certificates before the respondents from which his date of birth was evident. After giving age relaxation as per rules as well as on the basis of the directions of the Honble Supreme Court, the applicant was appointed.
5. The respondents filed counter contending that the Supreme Court did not give any age relaxation nor any direction that individuals from the panel have to be considered and reconsidered again and again. The applicant along with 54 others filed OA 1793/2000 before the Tribunal, which was disposed of, on 11.01.2001, in terms of the order passed on 31.05.2000 in OA 1431/1999, with only direction to the respondents to take appropriate steps to ensure that the directions given by the Supreme Court are complied with in letter and spirit. Time to time all the individuals cases were considered by the various Department of Government of NCT, Delhi, those who were selected were appointed and others were left.
6. The present applicant was called for consideration for the post of Peon at AIT, Gita Colony, Delhi by giving wrong interpretation to a letter dated 09.01.2006 and he was given appointment though his age was 44 years and in spite of there being no age relaxation given by the Honble Supreme Court in Writ Petition No. 323-25 of 1989. Thus, the applicant was wrongly appointed by the respondents in spite of his being overage.
7. Thus, the facts are not in dispute. On the basis of the directions of the Honble Supreme Court in Writ Petition No. 323-25/1989, the operative portion of which reads as under:
16. In the circumstances, it is not possible to accede to the request of the petitioners that the respondents be directed to regularize them. The most that can be done for them is to direct the respondent-Delhi Administration to keep them on a panel and if they are registered with the Employment Exchange and are qualified to be appointed on the relevant posts, give them a preference in employment whenever there occurs a vacancy in the regular posts, which direction we give hereby. the case of the applicant was considered for appointment as a panel was prepared in pursuance of the above directions of the Honble Supreme Court.
8. There is also no dispute that the Honble Supreme Court did not give any direction with regard to the age relaxation for the persons that are to be included in the panel nor any individual age relaxation was granted to the applicant by the appropriate authority and, in fact, it is brought to our notice, during the course of arguments, by the learned counsel for the respondents that there is no provision for relaxation in age beyond 35 years even in case where the competent authority desires to give age relaxation.
9. Learned counsel for the respondents reports that on account of the mistake of the officers of the respondent Department, who have not properly verified the documents and did not bring to the notice of the appropriate authorities about the applicant being overage, he was appointed. It is the contention of the learned counsel that as the applicant is appointed by mistake though he was not qualified on account of his being overage, he is liable to be terminated.
10. As already referred, there is no dispute about the facts and there is also no dispute that the applicant has never misled the authorities with regard to his date of birth or with regard to any other aspect, it was purely the mistake of the officers of the respondent organization, who failed to notice about the applicant being overage, he was appointed. Thus, there is no suppression of facts or forging of documents or anything like that by the applicant. Such being the case where the fact of his being overage was brought to the notice of the respondents when persons similarly placed filed O.As contending that they also should be considered in spite of being overage, the applicant deserves indulgence.
11. In the above circumstances, the question is whether the applicant deserves termination. In the peculiar circumstances of the case where the applicant was appointed by mistake on the part of the appointing authority but not on account of any mistake committed by him and he has served for more than two years after appointment, which is equal to his probation period, and as there is no complaint against his performance, we are of the considered opinion that he cannot be terminated.
12. The problem would be whether other similarly placed persons, who are overage, and claiming same benefit, would be entitled to be appointed. We hold that on account of the applicant being considered in the peculiar circumstances stated above, other persons similarly placed shall not be entitled for any similar benefit i.e. for being appointed to any post in spite of their being overage. The O.A. is accordingly allowed.
(Dr. Veena Chhotray) (P. Swaroop Reddy)
Member (A) Member (J)
`SRD