Central Administrative Tribunal - Ernakulam
Ajmir Khan T.H vs The Administrator on 13 March, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO.181/00070 of 2014
Monday this the 13th day of March, 2017
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Ajmir Khan T.H, aged 37
S/o K. Koya, Stenographer
Sub Divisional Office, Kilthan Island,
residing at Taj House, Kilthan Island,
UT of Lakshadweep-682558.
. . . Applicant
(By Advocate Mr. PV Mohanan)
Versus
1 The Administrator,
Union Territory of Lakshadweep
Kavaratti-682555.
2 The Director (Services)
Union Territory of Lakshadweep,
Kavaratti-682555.
. . . Respondents
(By Advocate Mr. S. Manu, Standing Counsel for UT of Lakshadweep)
This application having been finally heard on 07.03.2017, the Tribunal on
13.03.2017 delivered the following:
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member Applicant seeks to set aside Annexure A6 dated 8.8.2014 so far as it rejects the claim of the applicant for selection treating him as overaged and also to direct the respondents to consider the claim of the applicant for written examination/interview and for selection to the post of LDC/Stenographer Gr.III in terms of Annexure A5 notification dated 2.5.2014 treating him as departmental candidate by relaxing the upper age limit for direct recruitment upto 45 years of age.
2. Here is the gist of the case stated by the applicant.
The applicant was selected for the post of Selenographer but was appointed on contract basis by Annexure A1 order. He has been continuously working as Stenographer against the sanctioned post in the regular cadre. By Annexure A5 notification dated 2.5.2014 applications were invited for direct recruitment to the post of Lower Division Clerk/Stenographer Gr.III. The applicant applied for the post but by Annexure A6 check list it is noted that the applicant is overaged. Therefore, the applicant will not be permitted to appear for written examination which was then scheduled to be held on 28.9.2014 and for interview thereafter. The applicant is a departmental candidate. He is a ST candidate and so the upper age limit for departmental candidates for direct recruitment is 45 years. As on 2.6.2014 the applicant did not complete 45 years of age and thus the applicant is entitled to be considered for selection and appointment by direct recruitment to the post of LDC/Stenographer Gr.III. Thus the applicant has approached this Tribunal seeking the relief as aforesaid.
3. The claim is opposed by the respondents contending as follows.
By Annexure A6 check list dted 8.8.2014 the claim of the applicant was shown as overaged. 13 vacancies of Stenographer Gr.III under the Administration was notified as per notification dated 28.2.2013. That was subsequently cancelled even before completion of the recruitment as there was leakage of question paper. Again fresh notification to fill up 50 vacancies of LD Clerks in the scale of Rs. 5200-20200 Plus Grade Pay of Rs. 1900/- and also 14 vacancies of Stenographer Gr.III in the scale of Rs. 5200-20200 Plus Grade Pay of Rs. 2400/- were notified as per Annexure A5 notification. Two years age relaxation was given for those who had applied in response to the cancelled notification dated 28.2.2013. The applicant is not a departmental candidate and so he is not eligible for relaxation as per Annexure A7 OM. The applicant who was appointed on contract basis for a short period is not a government servant and hence he is not entitled to get relaxation under the statutory provision for relaxation of age limit for government servants. Hence the respondents prayed for dismissal of the OA.
4. We have heard the learned counsel appearing on both sides and have also gone through the pleadings and documents.
5. The short point arises for consideration is whether the applicant is to be treated as a departmental candidate so as to grant age relaxation?.
6. After this OA was filed, as per order dated 19.9.2014 the applicant was provisionally permitted to appear in the competitive examination for recruitment of LDC and Stenographer. It is stated that he had participated in the examination.
7. There is no dispute regarding the fact as per Annexure A6 check list the applicant who is at Sl.No. 2076 is shown as overaged. Annexure A7 is the DOP&T OM dated 20.5.1988 regarding relaxation of age limit for departmental candidates for appointment to Group 'C' and Group 'D' posts. Since the staff side had suggested that the age limit for departmental candidates for appointment to Group 'C' and Group 'D' should be liberalized a decision was taken which is as under:
'.....The matter has been carefully examined and it has been decided that the departmental candidates may be allowed to compete along with candidates from the open market upto the age of 40 years for Group C posts in the case of general candidates and 45 years in the case of Scheduled Castes and Scheduled Tribes.....'
8. The applicant is undoubtedly a ST candidate as he is a native of Lakshadweep Islands. If he is not treated as a departmental candidate he is certainly overaged, the applicant also does not dispute. As per Annexure A6 the age as on 2.6.2014 should be 18-25 years relaxable for SC/ST candidate as 5 years. Therefore, since two years relaxation was otherwise given because the earlier examination was cancelled and as the applicant had then applied the age as on 2.6.2014 would be upto 27 years and if 5 years relaxation for ST candidate is added then it would be only 27+5+ = 32 years. The applicant is aged 37 years. It is for that purpose the applicant contends that he should be treated as a departmental candidate and if that is accepted he is eligible for further relaxation upto 40 years for Group C general candidates and 45 years in the case SC/ST candidates. Therefore, the main question is whether the applicant is to be treated as a departmental candidate.
9. It is vehemently argued by the learned counsel for the applicant that the selection of the applicant as a Stenographer was against a sanctioned post and there was a due selection process also. There was proper notification for that purpose and, therefore, it has to be treated as a regular appointment though the appointment as such was given only on contract basis. Annexure A1 is the engagement of the applicant as Stenographer. It is specifically mentioned that it was done on contract basis. It is stated that the applicant is engaged as Stenographer purely on contract basis on a consolidated renumeration of Rs. 6500/- only per month and it was only for a period of one year. Again it was further made clear that the engagement is made purely on contract basis as per the terms and conditions to be signed by the contract agreement and will not confer on him any claim for regular appointment. Similar orders were subsequently issued vide Annexures A3 and A4. Since all these orders would make it clear that his appointment was purely on contract basis and for a specific period and it was on a consolidated remuneration, there can be no doubt that he was only a contract employee. It was only an engagement on contract basis and not appointment to a particular cadre having a particular scale of pay. It was only on payment of a consolidated remuneration and for a specific period. Therefore, there can be no doubt that the applicant was not a departmental candidate but only a contractual employee. The view so taken is supported by the decision of the Hon'ble Supreme Court in UPSC Vs. Gireesh Jayantilal Waghela and others - AIR 2006 SC 1165. In the aforesaid decision the Hon'ble Supreme Court has held :
'....The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter-se merit of candidates who have applied in response to the advertisement made.....' It was further held ' A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. '
10. The learned counsel for the applicant tries to distinguish the said decision contending that in this case there was a selection process. But the very fact that the invitation was made only to appoint on contract basis for a specific period would negative the plea so raised by the applicant. The appointment was not to a post having a particular scale. In para 23 of the judgment cited supra it was also held that factors like the process for recruitment in accordance with relevant service rules and also certain other incidents of service like transfer, disciplinary action, pension and the facility of general provident fund are absent in the case. In this case also absence of those factors would assume relevance.
11. The learned counsel for respondents has also placed reliance on the decision rendered by this Tribunal in OA No. 417/2011 which is also exactly identical to the issue involved in this case and as such the applicant cannot be treated as a departmental candidate so as to to get relaxation of the age. The decision in OA No. 417/2011 was confirmed by the Hon'ble High Court of Kerala in OP (CAT) No. 1295/2012. Therefore, in the light of the principle laid down by the Hon'ble Supreme Court in Gireesh Jayantilal Waghela (supra), we have no hesitation to hold that the applicant is not a departmental candidate and as such he is not entitled to get relaxation in age for the purpose of considering his appointment to the post of LDC or Stenographer. This OA is hence dismissed. No order as to costs.
(Mrs. P. Gopinath) (N. K. Balakrishnan) Administrative Member Judicial Member kspps