Central Administrative Tribunal - Mumbai
O.A. No. 461/20013 vs The Union Of India on 12 June, 2013
1 O.A. No. 461/20013, 462/2013 & 463/2013 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI Original Applications Nos.: 461/2013, 462/2013 & 463/2013. DATE OF DECISION : 06.12.2013. CORAM : HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER (J) HON'BLE DR. MRUTYUNJAY SARANGI, MEMBER (J) Dr. Rajendra Raghuvanshi Working as Orthopedic Surgeon at Shri. Vinoba Bhave Civil Hospital R/at: A-2, Doctors' Quarters, Shri Vinoba Bhave Civil Hospital Campus, Sayli Road, Silvassa Pin 396 230 U/T of Dadra and Nagar Haveli ... Applicant in O.A. No. 461/2013 Dr. Darshana Parmar Working as Medical Officer, Vinoba Bhave Civil Hospital, Silvassa R/at F-11, Phase 4, Pramukh Vihar, Silvassa Pin 396 230 UT of Dadra and Nagar Haveli ... Applicant in O.A. No. 462/2013 Dr. Mayurkumar Vadi Working as Deputy Director (STI), State AIDS Control Society, Medical Public Health Department, R/at: Shri Ganesh Krupa, Vrundavan Society, Silvassa Pin 396 230 ... Applicant in O.A. No. 463/2013 (By Advocate Shri S.V. Marne) VERSUS 1. The Union of India Through the Secretary Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi 110 011 2. The Administrator Union Territory of Daman & Diu and Dadra & Nagar Haveli, Moti Daman 396 220 2 O.A. No. 461/20013, 462/2013 & 463/2013 3. The Medical Superintendent Administration of Dadra & Nagar Haveli U.T. Vinoba Bhave Civil Hospital, Silvassa 396 230 ... Respondents in all O.A's (By Advocate Shri V.S. Masurkar) O R D E R (Oral) Per: Hon'ble Smt. Chameli Majumdar, Member (J)
The applicants in these three Original Applications No. 461/2013, 462/2013 and 463/2013 have challenged the same order and have prayed for same relief. Hence the three Original Applications were heard analogously with the consent of the parties and a common order is being passed.
2. The applicants are qualified Medical Doctors. The applicant in O.A. No. 431/2013 is working as Orthopedic Surgeon at Shri Vinoba Bhave civil Hospital, Silvassa. He has been residing at Doctors' quarters of the said hospital at Silvassa in the Union Territory of Dadra and Nagar Haveli. The applicant in O.A. No. 432/2013 is working as a Medical Officer in Shri Vinoba Bhave Civil Hospital, Silvassa residing at Silvassa in the Union Territory of Dadra and Nagar Haveli. The applicant in O.A. 3 O.A. No. 461/20013, 462/2013 & 463/2013 No. 463/2013 is working as Deputy Director State AIDS Control Soceity, Medical and Public Health Department and residing at Silvassa, Union Territory of Dadra and Nagar Haveli. The facts of the case as stated by the applicants in O.As. No. 461/2013, 462/2013 and 463/2013 are stated hereinbelow serially:
3. O.A No. 461/2013 : The applicant belongs to OBC category. His Date of Birth is 19.09.1974. The applicant possesses the qualification of MBBS and also Diploma in Orthopedics. Pursuant to an advertisement for appointment on the post of Medical Officer issued by respondent nos. 2 and 3, the applicant applied and appeared in the interview. The applicant was appointed on the post of General Duty Medical Officer in the Medical and Public Health Department, Dadra and Nagar Haveli, Silvassa. The appointment order dated 19.03.2003 mentions that the appointment was on contract basis for a period of six months or till the post will be filled up on regular basis, whichever was earlier. The applicant has been continuing in service. The appointment of the applicant was extended from time to time with artificial 4 O.A. No. 461/20013, 462/2013 & 463/2013 breaks. The applicant was appointed as Ortho Surgeon on 01.04.2005 again on contract basis in Shri Vinoba Bhave Civil Hospital, Silvassa. The applicant's last appointment letter dated 17.04.2013 has been annexed as A-3.
4. O.A. No. 462/2013 : The applicant belongs to General Category and her Date of Birth is 11.10.1975. The applicant possesses qualification of MBBS. In the year 2006, the applicant was appointed after qualifying in the selection process pursuant to the advertisement of holding such selection on the basis of Medical Officer. The initial appointment order dated 10.08.2006 was initially for a period of six months. Thereafter, appointment of the applicant was extended from time to time till date. The applicant has been continuing on the post of Medical Officer in Shri Vinoba Bhave Civil Hospital. The last extension of appointment of the applicant is dated 07.04.2013.
5. O.A. No. 463/2013 : The applicant belongs to General Category. His Date of Birth is 10.06.1975. The applicant possesses qualification of MBBS from B.J. Medical College, University of Pune. In the year 1998, the respondents no. 2 and 5 O.A. No. 461/20013, 462/2013 & 463/2013 3 had issued advertisement for holding selection for appointment for the post of Medical Officer. The applicant applied and after interview, he was appointed in Shri Vinoba Bhave Civil Hospital, Silvassa by order dated 20.04.1998. The appointment was contractual and the appointment was extended from time to time without any break till 23.05.2000. On 24.05.2000, the applicant came to be transfered to Medical and Public Health Department and was posted at Randha Dispensary. On 23.07.2002, the applicant was transferred back to Shri Vinoba Bhave Civil Hospital, Silvassa. While in service, the applicant applied for appointment on the post of Deputy Director in the State AIDS Control Society. The applicant was selected and was offered appointment as Deputy Director in the State AIDS Control Society vide order dated 23.08.2003. The said appointment was also on contract basis for a period of one year. After tendering technical resignation of the post of Medical Officer, the applicant took over the post of Deputy Director in the State AIDS Control Society on 09.09.2003. The said appointment of the applicant was extended from time to time. The applicant has been continuously working as 6 O.A. No. 461/20013, 462/2013 & 463/2013 Deputy Director in the State AIDS Control Society till date.
6. The respondent no. 1 had published an advertisement dated 12.01.2013 for filling up 39 posts of Medical Officers in the Department of Medical and Public Health, Union Territory of Dadra and Nagar Haveli. In the said advertisement, the maximum age limit prescribed was 35 years, relaxable by five years for SC/ST candidates and three years for OBC candidates.
7. Under the Recruitment Rules, 1993 for Medical Officers in the Union Territory of Dadra and Nagar Haveli there is further provision for age relaxation for Central Government employees. According to the Recruitment Rules, the post of Medical Officer is to be filled by Direct Recruitment with essential qualification from recognised medical institution and completion of compulsory rotating internship under the Recruitment Rules. The age limit for Direct Recruitment is 35 years, which is relaxable for government servants up to five years in accordance with the instructions of orders issued by the Central Government in consultation with the Union Public Service Commission. The 7 O.A. No. 461/20013, 462/2013 & 463/2013 applicant applied in pursuance of the advertisement dated 12.01.2013 by submitting an online application form. According to the advertisement, the cut off date for determining the age was mentioned as the last date of submission of online application form i.e. 31.01.2013.
8. The age of the applicant in O.A. No. 461/2013 as on 31.01.2013 was 38 years and four months. Therefore, the applicant was overage by four months on the cut off date. The age of the applicant in O.A. No. 462/2013 as on 31.01.2013 was 37 years and 03 months. Therefore, the applicant was overage by two years and three months on the cut off date. The age of the applicant in O.A. No. 463/2013 as on 31.01.2013 was 37 years and 07 months. Therefore, the applicant was overage by two years and seven months on the cut off date.
9. We have heard Shri Marne, appearing for the applicants and Shri Masurkar, appearing for the respondents in all the three O.As. We have perused the documents and the pleadings.
10. These three O.As., were moved before this Tribunal on 02.08.2013 when this Tribunal was 8 O.A. No. 461/20013, 462/2013 & 463/2013 pleased to grant Interim Relief to the extent that the result of the applicant shall be kept in a sealed cover by the UPSC and the applicant shall be allowed to participate in the further selection process. The result of the same shall also be kept in another sealed cover till the pendency of the O.A.
11. The respondents have filed a short reply opposing admission and for vacation of Interim Order. Withe the consent of learned counsel for the respondents, the matter is taken up for final hearing. One letter dated 29.08.2013 written by the Under Secretary, UPSC addressed to the Medical Superintendent, Dadra and Nagar Haveli has been annexed to the reply. In the said letter, it is mentioned that UPSC considered the proposal of the respondent no. 2 and decided not to accept the request for relaxation of age for five doctors. However, the respondents did not receive the Interim Order, which was passed by this Tribunal on 12.08.2013 within time. As a result, the Commission already declared the result on 14.08.2013 before receiving the aforesaid notice. It is further mentioned in the said letter that the answer scripts of these doctors regarding whom proposal for age relaxation was declined by UPSC were not 9 O.A. No. 461/20013, 462/2013 & 463/2013 evaluated. Therefore, keeping their result in sealed cover did not arise.
12. Shri Marne, appearing for the applicants submits that the respondents deliberately violated the order of the court. They should be punished for their action. We shall consider this aspect afterwards. These three O.As., are now being heard on merit on the main relief.
13. It appears from the annexure of the O.As., that the respondent no. 2 sent a detailed proposal dated 06.03.2013 to respondent no. 1 requesting to grant age relaxation to five doctors including the three applicants to enable them to participate in the recruitment process.
It is categorically stated that Union Territory of Dadra and Nagar Haveli is pre-dominantly a tribal area and it is difficult to appoint as well as to retain doctors there. The relevant parts of the said letter dated 06.03.2013 are set out hereinbelow :
As you are aware, there are presently 39 vacant posts of Medical officers in the UT of Dadra and Nagar Haveli. The Administration had initiated the proposal for filling up the posts through UPSC vide our letter dated 3/11/2007. As desired by UPSC, a revised proposal was submitted by the Administration on 4/7/2008, pursuant to which the 10 O.A. No. 461/20013, 462/2013 & 463/2013 recruitment has now been initiated by UPSC.
As you are aware, the UT of Dadra and Nagar Haveli is a predominantly tribal area. Due to its location, it is difficult to appoint and retain doctors to work in the Territory. However, to provide basic health services to the residents of the Territory, the UT Administration has managed the provision of services through appointment of doctors on contractual basis. Some of these doctors have provided exemplary services over the years. Five such doctors, as per list annexed, are presently over-age in terms of the recruitment rules for the post of Medical Officers but otherwise qualify for the said post.
In view of their long dedicated service to the UT, I request that the said five doctors may be granted age relaxation by UPSC so that they could participate in the recruitment process for the post of Medical Officers.
14. The applicants have stated that the applicants received the Admit Card from respondent no. 1 on 25.05.2013 through e-mail calling the applicants to appear for computer based recruitment test-2013 for the post of Medical Officer, which was scheduled to be held on 16.06.2013. The applicants submit that additionally they received personal telephone calls from office of Union Public Service Commission to the effect that the applicants were admitted to appear for the examinations. The 11 O.A. No. 461/20013, 462/2013 & 463/2013 applicants were almost sure that the proposal of respondent no. 2 to the respondent no. 1 for relaxation of age for five doctors, who have been serving in the tribal areas of the Union Territory for a period ranging from 7 to 17 years has been accepted. The applicants travelled to Delhi and appeared in the computer based recruitment test held by UPSC.
15. The applicants have stated that having learnt from reliable sources that the respondent no. 1 rejected the proposal of respondent no. 2 for age relaxation of all the applicants, the applicants applied under RTI Act for supply of copy of the proposal sent by respondent no. 2 as well as the reply given by respondent no. 1. The applicants received the copy of the letter dated 13.06.2013, rejecting the proposal of age relaxation in respect of the applicants. All the applicants have challenged the said communication dated 13.06.2013 addressed to the Administrator, Union Territory of Daman and Diu and Dadra and Nagar Haveli. It is mentioned in the said impugned letter that proposal for grant of age relaxation in respect of five doctors who are overage in terms of Recruitment Rules for the 12 O.A. No. 461/20013, 462/2013 & 463/2013 post of Medical Officer was considered by the Commission and the same was not agreed by the Commission.
16. We have carefully gone through the advertisement as well as the Recruitment Rules.
The advertisement issued by the UPSC at para 5
(c) deals with the age relaxation for Central Government employees. Para (c) is set out hereinbelow :
(c) Age relaxation for Central Government employee:
The upper age limit is relaxable for Central/U.T. Govt. Servants up to 5 years as per instructions issued by the Govt. of India from time to time. (10 years for persons belonging to Scheduled Castes/Scheduled Tribes and 8 years for persons belonging to other Backward Classes in respect of the posts reserved for them) in accordance with the instructions or orders issued by the Government of India. A candidate claiming to belong to the category of Central Government servant and thus seeking age relaxation under this para would be required to produce a Certificate in the prescribed proforma issued after the date of advertisement from his/her Employer on the Office letter head to the effect that he/she is a regularly appointed Central Government Servant and not on casual/adhoc/daily wages/hourly paid/contract basis employee.
The age relaxation will be admissible to such of the Government servants as are working in posts which are in the same 13 O.A. No. 461/20013, 462/2013 & 463/2013 line or allied cadres and where a relationship could be established that the service already rendered in a particular post will be useful for efficient discharge or the duties of the post(s) recruitment to which has been advertised. Decision in this regard will rest with the Commission.
17. The Recruitment Rules, which has been referred in the impugned letter provides in para 3, the Method of Recruitment to the post of Medical Officers in the Medical and Public Health Department in the Union Territory of Dadra and Nagar Haveli administration as well as Age limit and Qualification for such recruitment as specified in column 5 to 14 of the schedule. Column 7 of the schedule provides that the age would not exceed 35 years, however, relaxable for government servants up to 5 years in accordance with the instructions or orders issued by the Central Government. It is further mentioned that the crucial date for determining the age limit shall be the closing date of receipt of applications from the candidates in India.
18. We have also gone through the relevant government order dated 19.04.1981. Sub para (ii) of para 6 says that the Government servants may be allowed on a uniform basis, relaxation of 14 O.A. No. 461/20013, 462/2013 & 463/2013 maximum 5 years in the upper age limit for recruitment to other Group 'A' and 'B' posts by advertisement through the Commission. It further says that the age relaxation will be admissible to such of the Government servants as are working in posts, which are in the same line or allied cadre and where the relationship could be established with the service already rendered in a particular post will be useful in the efficient discharge of the duties of the posts, recruitment to which has been advertised. Decision in this regard will rest with the Commission.
19. From reading of the Recruitment Rules, the Government order dated 09.04.1981 as well as the advertisement, it is apparent that the competent authority in specific cases has the power to exercise its discretion to relax the upper age limit prescribed under the Recruitment Rules.
20. Learned counsel for the respondents relying on the same para 5 (c) of the advertisement submits that the applicants are all casual employees. They are not holding any regular post. Therefore, they cannot claim the relaxation of age limit available to the regular Government servants. It is clearly mentioned in 15 O.A. No. 461/20013, 462/2013 & 463/2013 sub para (c) of para 5 that for the purpose of age relaxation, the candidate has to be a regularly appointed Central Government servant and not on casual/adhoc/daily wages/hourly paid/contract basis employee. The learned counsel for the respondents relying on the judgment of Hon'ble Supreme Court in UPSC v/s Girish Jayantilal Vaghela & Ors, submitted that the applicants not being Government employees cannot claim age relaxation.
21. The Hon'ble Supreme Court in the said judgment held as under :
21. It is neither pleaded nor is there any material to show that the appointment of Respondent 1 had been made after issuing public advertisement or the body authorised under the relevant rules governing the conditions of service of Drugs Inspectors in the Union Territory of Daman and Diu had selected him. His contractual appointment for six months was dehors the rules. The appointment was not made in a manner which could even remotely be said to be compliant with Article 16 of the Constitution. The appointment being purely contractual, the stage of acquiring the status of a government servant had not arrived. While working as a contractual employee Respondent 1 was not governed by the relevant service rules applicable to Drugs Inspector.
24. For the reasons discussed above, we are clearly of the opinin 16 O.A. No. 461/20013, 462/2013 & 463/2013 that Respondent 1 cannot be said to be a government servant as he was working on contract basis and, therefore, he was not eligible for any relaxation in upper age-limit.
The view taken by the High Court is clearly erroneous in law and is liable to be set aside.
22. The learned counsel for the applicant distinguished this judgment in his rejoinder by contending that the applicants were appointed by respondent no. 2 and 3. Respondent no. 2 issued advertisements to fill up vacant posts of Medical Officers. The applicants applied and thereafter appeared in the interview. After qualifying they were selected and were appointed by the respondent no. 2 and 3 in Medical and Public Health Department of Union Territory of Dadra and Nagar Haveli. The applicants are entitled for grant of Earned Leave and Casual Leave. This will be evident from para 5 of the offer of appointment letter of the applicant in O.A. No. 461 dated 17.04.2013. The relevant paragraph is set out hereinbelow :
5. While employed on contract basis, you will be allowed to enjoy following leave:
C.L.-4 days, E.L.-15 days for first six months and 4 days C.L. and 15 days E.L. for next six months & Public Holidays on Liberation Day of DNH (2nd August), Liberation day of India (15th August), Republic Day 17 O.A. No. 461/20013, 462/2013 & 463/2013 (26th January), Diwali, Holi and Christmas.
23. The applicants are also liable for transfer within the Union Territory. The applicant in O.A. No. 463/2013 was transferred to Medical and Public Health Department from the post of Medical Officer in Shri Vinoba Bhave Civil Hospital. Thereafter, he was again transferred back to Shri Vinoba Bhave Civil Hospital in Silvassa. The applicant in O.A. No. 461/2013 is allotted accommodation in quarters in Shri Vinoba Bhave Civil Hospital, Silvassa. Thus on the basis of the above facts, the learned counsel submits that the facts of the judgment of the Hon'ble Supreme Court does not apply in the instant case.
24. We have carefully read the appointment letters issued to the applicants by the respondents. The first paragraph of initial appointment order of the applicant in O.A. No. 461/2013 dated 17.03.2003 is set out hereinbelow: 1. The contract basis appointment is for a period of Six months or till the post is filled up on regular basis which ever is earlier. The very term post used in the appointment letter makes it obvious that there 18 O.A. No. 461/20013, 462/2013 & 463/2013 was a vacant post of Medical Officer. The next sentence 'till the post is filed up on regular basis' contemplates that the said post was sanctioned regular post for which a regular selection would be held shortly. The applicant was appointed for a short term period of six months against the said regular post.
25. We have gone through the judgment passed by the Hon'ble Supreme Court in UPSC v/s Girish Jayantilal Vaghela & Ors reported in (2006) 2 SCC
482. The appellant before the Supreme Court was the UPSC and the respondent was the original applicant who was appointed as Drug Inspector under the Administrator of Union Territory of Daman and Diu on a short contract basis. The Hon'ble Supreme Court was considering the issue that whether the original applicant was a Government servant and therefore, whether eligible for relaxation in the upper age limit.
The Hon'ble Supreme Court held that a regular Government servant enjoys the constitutional provisions like article 16 and 309 and also safeguards provided in article 311 of the Constitution of India. The position of a Government servant is quite different from a 19 O.A. No. 461/20013, 462/2013 & 463/2013 private employer. The original applicant/ respondent in the said case was not granted the benefit of age relaxation of upper age limit. The Hon'ble Supreme Court held that he could not be said to be a Government servant since he was working on contract basis.
26. Apart from the factual distinction as pointed by Shri Marne, the fundamental difference is that the applicant/ respondent in the said UPSC v/s Girish Jayantilal Vaghela & Ors case was seeking appointment in the post of a Drug Inspector and in the instant case, all the applicants are doctors serving in the hospitals of Union Territory of Dadra and Nagar Haveli for 7 to 17 years continuously in various posts of Medical Officer/Surgeon/Director. From the proposal sent by respondent no. 2 to respondent no. 1, it would be evident that these doctors have been serving in the tribal areas for long spell of time with devotion and dedication. They have been given the credit of excellent and exemplary work during this long period of their service by their employer, Union Territory Administration. In our view the service of the doctors cannot be equated with the service of 20 O.A. No. 461/20013, 462/2013 & 463/2013 Drug Inspectors. These doctors serving the suffering mankind of the Union Territory demands credit at least to the extent of allowing them to compete for regular appointment by waiving age restriction by the Commission. Doctors are to discharge more onerous duties. They are required to serve in hard places, deal with emergency situation, even at odd hours. That apart, when the concerned respondent proposed for age relaxation of these applicants on reasonable and cogent grounds, the respondent no. 1 should not have rejected the same without considering those contentions and or without assigning any reason to that effect. We have already seen that from the initial appointment letter, it was apparent that the posts, these doctors have been holding, appear to be regular and sanctioned posts, but their service was contractual for reasons best known to the administration. Each case has to be decided according to the facts and circumstances of that case. Admittedly, these applicants have been working in the Medical and Public Health Department in the tribal areas under the Union Territory of Dadra and Nagar Haveli for 7 to 17 years. They have been enjoying various benefits of Government service. Their appointment was not 21 O.A. No. 461/20013, 462/2013 & 463/2013 back door appointment. It is also very curious to note that these doctors, who have been rendering service in the Government Hospital and Department for long 10 to 15 years, if asked, are they expected to say that they are not Government servants? They are not expected to say that they are serving in any private organisation. Under such circumstances, it is not open to the respondents to say that they are not Government servants for the purpose of age relaxation.
27. By a liberal and equitable construction of rule, it is apparent from a careful reading of sub para 2 of para 6 of government order date 19.04.1981, that a distinction has been made between regular Government servants and other than regular Government servants. In the first part of sub para 2, it is mentioned that Government servants may be allowed on a uniform basis, relaxation of maximum of five years in the upper age limit for recruitment by advertisements through the Commission. In the later part, it is mentioned that the age relaxation will be admissible to such of the Government servants as are working in posts which are in the same line or allied cadres or a relationship could be 22 O.A. No. 461/20013, 462/2013 & 463/2013 established in between service already rendered and the service for a particular post advertised for recruitment. By equitable construction and interpretation, benefits can be drawn from later part of that para for applicants in the case of these three applicants. These three applicants are not back door entrants and are not claiming regularisation of service. They are only seeking age relaxation to participate in the selection process for the post of Medical Doctors only where they have ample experience and where a clear relationship can be established between service they are rendering and also service attached to the post of Medical Doctors, which has been advertised for recruitment.
28. Apart from the legal aspect, the Court has also to consider whether the applicants can claim equitable relief. From the sequence of events and dates, it can be safely inferred that the applicants have been made to believe that they were held to be eligible for participating in the selection process initiated by UPSC. The advertisement for filling up the posts of Medical Doctors was issued on 12.01.2013. The last date of submission of online form was 31.01.2013. The 23 O.A. No. 461/20013, 462/2013 & 463/2013 Admit Cards were received by the applicants on 20.05.2013. The test was held at Delhi on 16.06.2013. The applicants contend that apart from receiving the Admit Cards online, they got phone calls that they had been admitted to appear in the test. The test was held at Delhi on 16.06.2013. After issuing Admit Cards to the applicants and allowing them to participate in the selection process, now it is not open to the respondents to contend that the applicants are not eligible for the post of Medical Doctors because they are overage. The applicants had reasonably believed that the proposal of the respondent no. 2 was accepted by respondent no.
1. Their age restriction was waived and as such they were allowed to participate in the selection process. They legitimately expected that they will be considered along with others. The action of the respondents in rejecting the proposal and thereby disallowing the applicants to participate after issuing Admit Card and thereafter allowing them to take the computer based test appears to be not just and fair.
29. According to Osborn's dictionary of English Law, Equity is primarily fairness.
24 O.A. No. 461/20013, 462/2013 & 463/2013Equity may not be a matter of right but a virtue which qualifies moderates and reforms the rigour of law. It does also assist law. Blackstone defines equity as the soul and spirit of all laws. Equity is synonymus of justice. It is settled proposition by now that the principles of justice and insistence upon acting according to the conscience are the basis of equity jurisdiction. The Hon'ble Supreme Court in the case of DDA v/s Skipper Construction Co. (P) Ltd., held that doing justice between the parties is a compulsion of judicial conscience on the part of the Supreme Court as a court of Equity.
30. There is another aspect to be considered in this aspect that the impugned order does not deal with the practical situation as brought out by the respondent no. 2. Para 5 of Recruitment rules dealing with the power of relaxation clearly says that for exercising power to relax the upper age limit, reasons are to be recorded in writing. Therefore, it is obvious that for the purpose of rejecting the proposal for age relaxation, the authorities are required to give reasons.
31. In the proposal it was clearly mentioned 25 O.A. No. 461/20013, 462/2013 & 463/2013 by respondent no. 2 that in tribal areas of Dadra and Nagar Haveli, it was difficult to appoint the doctors, at the same time, it was difficult to retain the doctors in the said territory. To provide basic health services to the local of Dadra and Nagar Haveli, the Union Territory Administration amended the provision of service through appointment of doctors on contractual basis. Therefore, the whole purpose of issuing contractual appointment in respect of regular posts was to reach health services to the inhabitants of those areas. The applicants have been serving there with total dedication and devotion. It was further mentioned that these doctors provided exemplary services over the years. The impugned order does not reflect any consideration in this regard.
32. Learned counsel for the applicant has given details regarding the position of doctors in Union Territory of Dadra and Nagar Haveli. According to the applicant, last regular selection was held in the year 2003. In total 12 Medical Officers were appointed. Out of them only three are still continuing whereas nine other doctors either have resigned or gone on 26 O.A. No. 461/20013, 462/2013 & 463/2013 deputation. On the contrary, the applicants had been religiously working with the respondents and rendering service in public interest for more than 10 years.
33. At this juncture, we are tempted to mention that seven judges Bench of the Hon'ble Apex Court in Uma Devi v/s Union of India reported in (2006) 4 SCC 1. The Hon'ble Supreme Court held that those contractual employees who have been rendering service for more than 10 years will be given one time relaxation for regularisation of their service. In paragraph 46, the Hon'ble Supreme Court held as under :
If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. Nos. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.
34. In the instant case, the applicants are not claiming regularisation, but their only 27 O.A. No. 461/20013, 462/2013 & 463/2013 prayer that they may be allowed to participate in the selection process after exercising the power of relaxation of upper age limit available to the Government servants. The Hon'ble Apex Court in the said Uma Devi's case at para 46 held that those who had been continuing to serve either in adhoc or temporary basis will be allowed to compete in the selection process. Many of them might have become overage by the time. Therefore, the Hon'ble Supreme Court waived the age restriction imposed by the Recruitment Rules and also gave some weightage for their service rendered for such a long spell of time. The Hon'ble Supreme Court felt that grave injustice will be done unless such relaxations are extended to those employees. As such for doing complete justice, the Hon'ble Supreme Court exercised its power under Article 142 of the constitution. We are conscious that this Tribunal does not have any such power. However following the principle as laid down in para 46 of Uma Devi's case we may direct the Union Public Service Commission to consider the case of these doctors, who are qualified and who have spent best part of their life to serve the 28 O.A. No. 461/20013, 462/2013 & 463/2013 nation, particularly, the sick and ailing people of the country, simply being engaged for number of years in contractual service. We feel that this is a fit case where the UPSC should interfere and grant age relaxation to complete in the regular selection process for regular appointment.
35. Now we proceed to deal with the charge of contempt of court brought by the applicants in violating Tribunal's order dated 12.08.2013. The Tribunal passed the following Interim Order on 12.08.2013 :
5. However, the prayer for interim relief is granted to the extent that the result of the applicant shall be kept in a sealed cover by the UPSC and he shall be allowed to participate in the further selection process and the result of the same shall also be kept in a another sealed cover till the pendency of this OA.
36. The respondents in the above mentioned letter annexed to the reply has made an attempt to put forward the defence against alleged contumacious act that the result of other candidates were already published before the order of CAT, Bombay Bench was received by them.
In our view, the respondents not only 29 O.A. No. 461/20013, 462/2013 & 463/2013 misconstrued the order of this Tribunal in as much as the Tribunal did not pass an order to withhold the result of the other candidates, but only directed the respondents to evaluate the answer scripts of the applicants and to keep the same in a sealed cover. The Tribunal also passed the order that the applicants will be allowed to participate in the next selection process. However, the result of the said selection process will also be kept in the sealed cover. Learned counsel for the respondents failed to satisfy the court that whether further process of selection was taken up by UPSC after publishing the result of the computer based test or not. Under any circumstances in view of the solemn order passed by this Tribunal, the answer scripts of the applicants ought to have been evaluated and kept in sealed cover. Since we have finally heard the matter, we are not inclined to go into the matter whether such violation of the order of this Tribunal was willful or deliberate. The respondents should not forget that a court of law demands respect from the citizens. It is also the duty of the contesting parties to ensure that the orders of the Tribunal are complied with to keep up the dignity and majesty of the 30 O.A. No. 461/20013, 462/2013 & 463/2013 institution.
37. Having regard to the facts and law discussed above, the impugned order dated 13.06.2013 is quashed and set aside. Respondent no. 1 is directed to take a fresh view of the matter in the light of this judgment and allow age relaxation for the applicants within two weeks from the date of receipt of this order. The respondents are further directed that after taking the decision, pass necessary directions to evaluate the answer scripts of the applicants, which should have been evaluated in compliance with the interim order of the Tribunal passed on 12.08.2013. In the event the applicants are successful in the test, then they will be allowed to appear in the interview. However it is made clear that the selection would be strictly on the basis of merit.
38. The Original Application is accordingly allowed. However there will be no order as to cost.
(Dr. Mrutyunjay Sarangi) (Smt. Chameli Majumdar) Member (A) Member (J) sc/n