Central Administrative Tribunal - Delhi
Virender Kumar vs Govt. Of Nctd on 29 August, 2024
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Item No. 34 (C-4) OA 2833/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A No. 2833/2016 With M.A No. 2544/2016
This the 29th day of August, 2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
1. Virender Kumar, Roll No. 69003912
Aged About 38 years,
S/o Sh. Dharamvir Singh,
R/o H. No. 27, Extn.-1 B, Nangloi,
Delhi-110041
2. Gajender Kumar, Roll No. 69001364
Aged About 41 years, S/o Sh. Hari Babu,
R/o 126/1, Baldev Park, Parvana Road,
Krishna Nagar, New Delhi-110051 ...Applicants
(By Advocate : Mr. M. K. Bhardwaj)
Versus
1. Govt. of NCT of Delhi
Through its Chief Secretary,
Delhi Secretariat, I.P. Estate, Delhi.
2. Delhi Subordinate Services Selection Board
Through its Secretary FC-18, Karkardoma,
Institutional Area, Delhi 110092
3. Directorate of Education,
Through its Director,
Old Secretariat, Delhi ...Respondents
(By Advocate : Mr. Anuj Kumar Sharma)
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Item No. 34 (C-4) OA 2833/2016
ORDER (O R A L)
Per Hon'ble Dr. Sumeet Jerath, Member (A) :
M.A No. 2546/2016 :-
The instant M.A filed by the applicants seeking to join together in a single OA stands allowed for the reasons mentioned in the M.A. O.A No. 2833/2016 :-
The instant OA has been filed by the applicants two in number seeking the following reliefs :-
"8 i) To direct the respondents to declare the applicants as selected candidate and appoint them to the post of Librarian in Directorate of Education with all consequential benefits.
ii) To declare the condition contained in advertisement for giving age relaxation for govt. employees and Departmental Candidates upto 5 years only in the event of holding post in the same line or allied cadre of the advertised post as illegal and arbitrary and direct the respondents to grant age relaxation to govt. servant upto 5 years irrespective of the nature of post held by them.
iii) To quash and set aside the DOP&T OM No. 15012/8/87- Estt. (D) dated 15.10.1987 and OM No. 35014/4/79-Estt. (D) dated 24.10.1985 to the extent it provide for giving age relaxation only to such departmental candidates/ Govt. Servants who are in the same line or allied cadres of the post advertised.
iv) To allow the OA with cost.
v) Any other orders may also be passed as this Hon'ble Tribunal may deem fit and proper in the existing facts and circumstances of the case."
2. The conspectus of the case as per the applicants is that in response to the advertisement issued by the respondents for 3 Item No. 34 (C-4) OA 2833/2016 the post of Librarian, to avail the benefit of age relaxation, both the applicants, applied through proper channel to the said post (Post Code No. 02/13), as they were initially appointed as Nursing Orderly and Constable (Executive) in Delhi Police, since as per the advertisement, five years' age relaxation was provided for the serving employees. Both the applicants appeared in the written test held on 31.08.2014 and were declared successful after scoring 77 and 119 marks respectively vide result notice dated 03.12.2015. It is pertinent to mention here that both the applicants belonged to OBC and SC category respectively and the cut-off for OBC and SC were 73 and 97.50. On successfully qualifying the written test, they were called for the document verification on 11.12.2015. List of provisionally selected candidates was published after completion of verification process on 14.03.2016. However, to the surprise of the applicants they could not find place in the said list. Moreover, the respondents issued Rejection Notice No. 446 on the same day declaring various candidates as rejected wherein it was mentioned 'overage' and no other specific reason was recorded. According to the applicants, as per para 7 of their own advertisement, being in government service the applicants were eligible for five years' age relaxation. Aggrieved by their rejection, the applicants preferred representations dated 4 Item No. 34 (C-4) OA 2833/2016 16.03.2016 and 21.03.2016 claiming appointment by seeking age relaxation, but to no avail. Hence they have approached this Tribunal by way of this OA.
3. Learned counsel of the applicants mentioned the following grounds of filing the instant OA :-
"A. Because the respondents failed to consider the whole object of giving age relaxation to the Govt. Servants for appointment to the higher post subject to fulfilling the educational qualification. The Instructions regarding age relaxation for departmental candidates were initially issued way back in the year 1976 and when the object of issuing said OM was not achieved, the DOP&T issued further instructions in 1985 and again in 1987. All the aforesaid instructions were consolidated were notified again vide OM dated 27.03.2012. While notifying the instructions regarding upper age limit to various categories of Govt. Servants, it was not considered that by passage of time opportunities for young qualified persons to get appointment as per the qualifications acquired by them got reduced and they were forced by the circumstances to join on the lower post. Therefore, the condition of holding the post in the same line or allied cadre for the purpose of seeking age relaxation for competing for higher post was required to be re-examined to enable the meritorious and highly educated Govt. Servants to get appointment on the posts commensurate with their qualification and suitability.
B. Because when the condition of holding post in the same line or allied cadre was not imposed for appointment against group 'C' and 'D' post, the same could not have been imposed for appointment to group 'B' post as the persons appointed against group 'C' & 'D' post after giving age relaxation ultimately got promotion to group 'B' post as well.
C. Because the respondents have failed to explain the object sought to be achieved by giving age relaxation to departmental candidates / Govt. Servants for appointment to group 'C' & 'D' post without any condition of holding the post in the same line and not for group 'B' with the condition of holding the post in the same line or allied cadre.
D. Because even otherwise also, the stand taken by the respondents for not giving age relaxation to the applicants upto for 5 years as per the Govt. of India instructions is highly illegal, arbitrary and violative of their own statutory 5 Item No. 34 (C-4) OA 2833/2016 rules. It seems that the respondent No. 2 failed to consider that being the recruiting agency it is bound by the rules and Instructions framed and adopted by user Department. It is settled law that the recruiting agency has no authority to go against the relevant rules and instructions framed for making selection and consequential appointment to the various posts available in the user Department.
E. Because the respondent No. 2 failed to consider that even the recruitment rules for appointment to the post of Librarian in Directorate of Education have been framed under Article 309 of Constitution of India as such the instructions issued by Govt. of India regarding age relaxation to the Departmental candidate are also required to be followed while making selection to the post of Librarian in Directorate of Education.
F. Because the applicants fulfills all the eligibility conditions as mentioned in the advertisement for appointment to the post of Librarian in Directorate to the post of Librarian In Directorate of Education is highly illegal, arbitrary and violative of Article 14 & 16 of Constitution of India.
K. Because the respondents have failed to consider that the competent authority to frame recruitment rules for appointment to the post of Librarian in Directorate of Education, Govt. of NCT of Delhi is Govt. of India, Ministry of Home Affairs, therefore for all purposes, the instructions issued by the Govt. of India for making appointment to the various posts in Central Govt. etc. would be applicable while making appointment to the post of Librarian in Directorate of Education. Since as per instructions issued by Govt. of India, age concession for appointment to Groups 'B' post by direct recruitment is 5 years, therefore the applicants are entitled to get the said age relaxation for 5 years.
L. Because the condition of giving age relaxation for departmental candidates only for five years is in consonance with the Govt. of India Instructions and in consonance with the object sought to be achieved for providing opportunity to the employees holding the lower post to accelerate in the service career as per their qualifications.
M. Because the DOP&T OM No. 15012/8/87-Estt. (D) dated 15.10.1987 and OM No. 35014/4/79-Estt. (D) dated 24.10.1985 as consolidated vide OM dated 27.03.2012 are violative of Article 14 & 16 of Constitution of India as it discriminate the Govt. Servants in the matter of age relaxation on account of the nature of duties attached to the post and contrary to the object sought to be achieved by Issuing instructions to provide age relaxation to Govt. Servants possessing qualifications more than the qualification required for the post held by them and having caliber to hold higher post.6 Item No. 34 (C-4) OA 2833/2016
N. Because the classification made by aforesaid impugned OMs has no nexuses with the objects sought to be achieve and the same is proved for the said OMs itself. It has been provided in the aforesaid OMs that the benefits of age relaxation should be given such Govt. servants who are aspirant for appointment to group 'C' and not group 'B' and that too only when they are holding posts in the same line or allied cadre of the post advertised.
O. Because it is clear from the said impugned OMs that the restriction of benefits to get age relaxation only to particular class/ group of Govt. Servant is neither rational nor has any direct nexus with this object sought to be achieved by making provision for accelerated in service career on the basis of higher qualification. The main object sought to be achieved by giving age relaxation vide aforesaid OMs to serving Govt. employee is to encourage/ motivated them for acquiring higher qualification to move forward and not to give benefit to particular category of persons.
P. Because when the provisions of said OMs are applied in the facts and circumstances of the present case filed by the applicant it would be amply clear that the said OMs are discriminatory on account of restricting the benefit of age relaxation for regular appointment to Group C posts only and that too for those govt. Servants holding posts in line of advertised posts or allied cadre.
Q. Because the impugned OMs are not based on rational and intelligible differentia which has a nexus sought to be achieved, therefore, the said OMs are required to be declared unconstitutional to the extent it restrict the benefits of age relaxation only to one category of employee l.e. regularly appointed persons on the post in the same line/allied cadre and not other categories of employees inspite of having qualifications for the post advertised.
R. Because the main intention of the rule making authority was and it continue to be, to give benefit of age relaxation to such category of employees who have acquired higher qualification which can be useful for the efficient discharge of the duties of the posts advertised and never intended to deny age relaxation to any employee appointed on a post in the same line or allied cadre where a relationship could be established that the service rendered in a particular post will be useful for the efficient discharge of the duties of the advertised post. In the case of applicant it has not even been disputed nor the same could be that qualification acquired by them will not be useful for the efficient discharge of the duties of Librarian."7 Item No. 34 (C-4) OA 2833/2016
4. The learned counsel of the respondents however vehemently opposed the grounds and arguments of the counsel of the applicants and stated as follows :-
"The written examination of the said post code was conducted on 31/08/2014. The candidate was called in DSSSB office for verification of original documents. During the course of verification it was noticed that the candidates are overage. As per RRs the departmental candidates with atleast three years of service in Central Government/Govt. of NCT of Delhi are entitled for age relaxation upto 5 years for group B Posts (which are in the same line or allied cadre and where a relationship 'could be established that the service already rendered in a particular post will be useful for the efficient discharge of the duties of post).
The cut-off date in this case is 20/03/2016. The candidates were required to be having age less than 30 years on cut-off date i.e. 20/03/2013. In the instant case, the applicants Mr. Virender Kumar and Mr. Gajender Kumar were having age more than 30 years i.e. they were "Overage".
The candidates have claimed age relaxation on the basis of services rendered by them as 'Nursing Orderly' and 'Constable'. As per RRs and terms & conditions of Advertisement, the benefit of age relaxation can be given only if the candidate has experience in the same line or allied cadre. In the instant case, one candidate is Constable and another candidate in Nursing Orderly. These posts are not in same line or allied cadre of Librarian. Hence age relaxation could not be given to these candidates."
This is further buttressed by DoPT circular No. 15012/2/2010- esttt(D) dated 27.03.2012 where age relaxation of 5 years' is given on the condition that "5 years for posts which are in the same line or allied cadres and where a relationship could be established that the service already rendered in a particular post will useful for the efficient discharge of the duties of post."
5. Heard the learned counsel of both the sides and examined the documents on record. We are of the considered 8 Item No. 34 (C-4) OA 2833/2016 opinion that both the applicants did not have any experience of working as a Librarian; one of them was working as Nursing Orderly and the other as Constable (Executive) whose job descriptions are entirely different from those of a Librarian. Thus, both of them were rightly not given the benefit of age relaxation by the respondents. The rejection order is therefore well reasoned and judicious and we are not inclined to interfere with it. Also we would not like to interfere with the DoPT's OM Nos. 3514/4/79-Estt.(D) dated 24.10.1985 and 15012/8/87- Estt.(D) dated 15.10.1987 as these are rational administrative orders issued by the DoPT under the delegated powers of Subordinate Legislation which the Executive is competent to do so. The Administrative Department concerned is competent to take a decision in regard to the question whether there is a nexus between the duties of the post held by a Govt. servant and that of the post for which recruitment is being done.
6. We would also like to abide by our order dated 01.08.2024 in OA No. 1531/2016 in a similarly situated case. The excerpt of the said order reads as under :-
"9. The respondents have demonstrated that the applicant's substantive job was that of an Ahalmad and not that of a Librarian. Even in the Library, the applicant was posted as LDC and not as a Librarian or an Assistant Librarian. Therefore, it cannot be said that he had been doing work similar in nature to that of a Librarian. Hence, the conditions required for age relaxation of five years to a departmental candidate is not being met by the applicant.9 Item No. 34 (C-4) OA 2833/2016
10. In view of the above, we do not find any illegality in the order passed by the respondents more so in view of the DOPT's OM dated 15.10.1987. It is ultimately the prerogative of the employer to decide with respect to the suitability of the candidate. The condition precedent for age relaxation requires the candidate to be doing the same nature of duties of same cadre. The respondents have rejected the case of the applicant after due consideration. Hence, we do not find any merit in the OA and the same is dismissed.
11. No order as to costs.
12. Pending MA, if any, also stand disposed of."
7. In view of the above, the instant OA is devoid of merit and deserves to be dismissed and is accordingly dismissed. However, there shall be no order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/