Central Administrative Tribunal - Delhi
Mrs. Neelam Malik vs Union Of India on 21 April, 2011
Central Administrative Tribunal Principal Bench OA No.1447/2011 MA No.1177/2011 New Delhi, this the 21st day of April, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) 1. Mrs. Neelam Malik W/o Mr. Satender Malik, 924/31, Malik Colony, Near Sainik Rest House, Sonepat (Haryana). 2. Mrs. Sunita Sihag W/o Mr. Rajesh D-199, Shyam Vihar, Dinpur, Ph-I, Goyla More, Najafgarh, New Delhi 110 043. Applicants. (By Advocate : Shri Gagan Mathur) Versus 1. Union of India Through Secretary Ministry of Culture, Shastri Bhawan, New Delhi 110 001. 2. National Archives of India Through Director General of Archives, Janpath, New Delhi 110 011. 3. The Chairman Staff Selection Commission, Government of India, Northern Regional Office, Block No.12, CGO Complex, Lodhi Road, New Delhi 110 003. Respondents. (By Advocate : Shri S. M. Arif for Respondent No.3) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
By the MA No.1177/2011 both Applicants have joined together as the cause of action and the relief claimed are the same. Hence, the MA No.1177/2011 is allowed.
2. In the OA No.1447/2011 filed under Section 19 of the Administrative Tribunals Act, 1985, the Applicants have prayed for the following reliefs:-
(a) A direction to the effect that the applicants are entitled to be considered for relaxation and direction to the respondents to grant relaxation to the applicants for consideration for appointment to the post of Assistant Archivist for which interview is scheduled for 21.04.2011;
(b) Direct the respondents to grant all consequential benefits to the applicants, if the applicants are declared successful in the interview;
(c) Any other and such further relief, which this Honble Tribunal deems just and proper under the facts and circumstances of the present case, be also passed in favour of the Applicants and against the Respondents.
3. Brief facts of the case would reveal that the Applicant No.1 was initially appointed as Data Validator/proof Reader with the Respondent No.2 in the year 2006 (1.5.2006 to 31.10.2006), Reference Media Preparator from 22.08.2008 to 31.01.2010 and was later engaged as Archival Assistant with the Respondent No.2 on contract basis on monthly consolidated pay of `15000. Similarly, the Applicant No.2 was initially appointed as Data Validator/Proof Reader with the Respondent No.2 from the year 2006 (01.05.2006 to 31.10.2006 and again 22.08.2008 to 31.01.2010) and was later on appointed as Archival Assistant from 22.07.2010 with the Respondent No.2 on contract basis. The said contract of Applicant No.1 was extended for a further period of 1 year vide order dated 21.02.2011 and the monthly consolidated pay of the Applicants was enhanced to `22000 per month. Both the Applicants have been working as Archival Assistants with the Respondent No.2 and have been doing their work diligently and were also awarded certificate by the Respondent No.2 acknowledging their hard work with the projects of Respondent No.2. It is the case of the Applicants that the Respondents after a long gap of 10 years have advertised for 21 permanent post of Assistant Archivist through Respondent No.3 in the year 2009. Both the Applicants applied for the said post and submitted their respective applications to the Respondents. On 6.12.2010, the Applicants have received the Memorandum (Pages 32 and 33) whereby the application of the Applicants was cancelled by Respondent No.3 and their candidature was cancelled as both were over aged and OBC Certificate was not submitted by the Applicant No.2. They submitted their letter/representation dated 16.12.2010 and 30.12.2010 respectively stating therein that they have EQ(i), (ii) and (iii) but being over aged, they sought relaxation in the age requirement as the qualifications are relaxable at the discretion of Staff Selection Commission/Competent Authority in case of candidates otherwise qualified. On 5.04.2011, the Applicants came to know that the Respondents are going to conduct interview for the post of Assistant Archivists on 21.04.2011. Pursuant to this, they sent their representation/letter dated 5.04.2011 to the Respondents, but no decision has been taken so far. Feeling aggrieved, the Applicants have approached this Tribunal seeking the reliefs, as mentioned above.
4. We heard Shri Gagan Mathur, learned Counsel for the Applicant. At the motion stage on 20.04.2011, the Counsel for the Applicant urged for orders on the interim relief, as the interview was slated for 21.04.2011. Shri S. M. Arif, learned Counsel, representing the Respondents took notice of the case and submitted that if the case could be taken up in the afternoon on 20.04.2011, he would argue the case orally without filing any reply as the Applicants are seeking interim relief to appear in the Interview scheduled to be held on 21.04.2011. As the opposite side had no reservation on the same, the Counsel for the Respondents was allowed to seek instructions in the case. Thus, the hearing in the OA was taken up at 2:00pm on 20.04.2011.
5. Shri Gagan Mathur contended that the Applicants have represented to the Respondents to grant maximum age relaxation as they have been working for long period of more than 11 years with Respondent No.2. He submitted that Applicant No.1 though could meet the essential qualifications but the Applicant was over aged by 5 months and 22 days on the closing date of the application i.e. 22.09.2009. In case of Applicant No.2, his contention is that the Applicant is well qualified but her candidature was rejected as she could not meet the age criteria of maximum of 30 years and was over aged by 10 months and 6 days as the cut off date/closing date (22.09.2009). His contention is that Note No.1 in the advertisement clearly specifies that the qualifications are relaxable at the discretion of the Staff Selection Commission/Competent Authority, in case of the candidates otherwise qualified. His further contention is that both the Applicants having Essential Qualifications, the age relaxation should have been extended by the Staff Selection Commission (Respondent No.3) and the Competent Authority (Respondent No.2), and Applicants should have been called for interview scheduled to be held on 21.04.2011. In this regard, he placed his reliance on the judgment delivered by this Tribunal in OA No.942/2006 with MA No.777/2006 decided on 16.05.2007 in the case of Forum of Research Associates and Fellows of Indian Agricultural Research Institute and Anr. vs. Union of India and Others, upheld by Honble High Court of Delhi in WP(C) No.2097/2008 decided on 28.09.2010 to submit that age relaxation could be granted for the contract employees for long period. He also contends that the Applicants being Civilian Central Government employees Column b(c) of the advertisement is applicable for them.
6. Per contra, Shri S. M. Arif, learned Counsel for the Respondents submits that the Respondents vide their letter dated 6.12.2010 have clearly intimated to both the Applicants that their candidature was cancelled and reasons for such cancellation have been clearly spelt out in the said memorandum. Relaxation has been claimed by the Applicants subsequently through letter dated 5.4.2011 seeking relaxation. Shri Arif took us through the pleadings and submitted that the Respondents have received applications from 226 candidates for the post of Assistant Archivist, only 60 candidates have been found provisionally eligible as per the essential and age qualification published in the advertisement and they have been called for interview to fill up 21 posts. The relaxation would have arisen if adequate number of candidates were not available. The Applicants being on contract that too in different spells with breaks cannot be called as regular Government employees. He, therefore, submitted that the Respondents would not be in a position to extend any age relaxation for both Applicants. He, therefore, submits that the OA should be dismissed at the admission stage itself.
7. Due to urgency expressed by the Counsel for the Applicants, we heard both the parties at a great length. As the OA has all relevant facts and the Counsel for the parties argued on the controversies there has been no need to wait for the affidavit to be filed by the Respondents. Having heard the rival contentions, we went through the pleadings with their assistance.
8. We note that the Applicants have applied for the post of Assistant Archivist and the advertisement clearly specifies the age criteria as Not exceeding 30 years for the post and the Column 6 (C) of the advertisement which envisages age relaxation for Central Government Civilian Employees, has been claimed by the Applicants in the present OA. Column 6 (C) reads as follows:-
6.(C) AGE-RELAXATION FOR CENTRAL GOVERNMENT CIVILIAN EMPLOYEES:
The upper age limit is relaxable upto 5 year (10 years for SC/ST candidates and 8 years for OBC candidates) for Central Government Civilian Employees who have rendered not less than 3 years continuous service on regular basis (and not on ad hoc basis) as on closing date i.e. 22.09.2009.
NOTE-1 : The Central Government Civilian Employees should have rendered not less than 3 years continuous service on regular basis (and not on Ad-hoc basis) as on 22.09.2009 and should remain in Central Government service holding civil post in various Department/offices of Government of India till the candidate receives offer of Appointment from the Office/Department where the candidate gets finally recommended for appointment.
NOTE-2 : Central Govt. Civilian Employees claiming the benefit of age-relaxation as Central Govt. Employee, would be required to submit a Certificate (as per Appendix-V) by their office indicating length of service at the time of applying for the post to enable the Commission to decide their eligibility. They may send their applications directly to the Commission after intimating their Head of Office/Department and need not send another copy through proper channel. However, in case they decide to send Application through proper channel, they must ensure that the application complete in all respects, should reach Staff Selection Commission by the CLOSING DATE. Applications shall be rejected if received late and/or not complete in all respects as provided in rules.
SAVE AS PROVIDED ABOVE, THE AGE LIMITS PRESCRIBED SHALL IN NO CASE BE RELAXED.
9. It is noted that the Advertisement clearly stipulates the upper age limit of 30 years as on 22.09.2009 (closing date of the Applications) and age relaxations and concessions admissible have also been specified in Columns 6(A), 6(B) and 6(C). Admittedly, both the Applicants have stated in their representation that they are over aged by some months. It is also not in dispute that the Applicants are contract employees on consolidated pay and they have not rendered continuous regular service for more than 3 years. As stated within, each Applicant has break period even in their contractual employment. Thus, it is evident that they are not entitled to age relaxation as per the advertisement. We, therefore, wonder how can we direct the Respondents to allow the Applicants to appear in the interview as the Applicants themselves are not eligible in the age criteria. De hors the advertisement, the Applicants could not be directed even to appear before the Interview.
10. It is also noted that adequate number of candidates (60 candidates provisionally eligible as per the essential qualification) are available for the interview to select and fill up 21 number of posts advertised. It is also seen that 166 candidates candidature has been cancelled/rejected on various grounds. We are in agreement with the contentions of the Counsel for the Respondents that granting interview even provisionally to the Applicants by relaxing the age relaxation would open up the whole issue of re-examination of the candidates whose cases have been cancelled by the Respondents and have not been called for interview. Therefore, we are of the considered view that de hors the advertisement, the directions cannot be issued to the Respondents to allow the Applicants to appear before the Interview Board as they are not prima facie eligible as per the prescribed age limit published in the advertisement.
11. On perusal of the judgments relied on by the Counsel for the Applicants in the Forum of Research Associates case (supra) the controversy dwelt therein was the upper age limit relaxation which was impediment for regularization of temporary employees (Research Associates and Research Fellows) who worked for 10 to 15 years. Relevant part of the order of this Tribunal dated 16.03.2007 is extracted below :-
13. The Research Associates and Research Fellows though join Projects and continue as temporary employees from time to time, their erstwhile service is rendered when they get employment as Research Associates in Projects and are within the age limit, as such by virtue of rendering service for a long period, in the present case, for more than 10 to 15 years, now subjecting them for regularization as per the age limit under the rules would be arbitrary and inequitable.
14. We find from the rejoinder that similarly circumstanced project employees were given age relaxation at Jodhpur. Non-accord of the same treatment to applicants, when they form the same class, would be an invidious discrimination. We do not find any intelligible differentia with the object sought to be achieved, which is to get the best of the talent in the IARI, applicants having proved their worth by continuing in Projects and rendering their excellent service, the same has to be the criteria for relaxation in age.
15. In the result, for the foregoing reasons, we partly allow this OA. Respondents are directed to reconsider according age relaxation to applicants as accorded at Jodhpur and other places, as referred to ibid, whenever the claim of applicants arise against available vacancies for appointment/absorption in Research Projects. No costs. The above order upheld by High Court relates to regularization whereas the present OA is on fresh recruitment. Hence, the said judgment is clearly distinguishable.
12. Taking into account the full facts of the case and the age criteria specified in the advertisement, we find that Applicants are over aged and are not entitled to age relaxation/concession. Therefore, we are of the considered opinion that it is not a fit case to issue any direction to the Respondents even to reconsider the application and representation of the Applicants as they are not eligible under age qualification specified in the advertisement. In the result, the Original Application being devoid of merits is dismissed. There is no order as to cost.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda) Member (J) Member (A) /pj/