Central Administrative Tribunal - Delhi
Sanjeev Yadav vs Staff Selection Commission on 10 November, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 458/2009
Reserved on 23.08.2016
Pronounced on 10.11.2016
HON'BLE Mr.SUDHIR KUMAR, MEMBER (A)
HON'BLE Mr.RAJ VIR SHARMA, MEMBER (J)
Sanjeev Yadav,
LDC/Gr.-IV (DASS),
Aruna Asaf Ali Govt. Hospital,
Govt. of NCT of Delhi,
R/0 115, Nahar Pur,
Delhi-110085 ... Applicant
(By Advocate: Mr. Anil Singal)
VERSUS
1. Union of India
Through its Secretary,
Ministry of Personnel, Public Grievances
and Pension, North Block,
New Delhi.
2. Staff Selection Commission
Through its Chairman,
C.G.O. Complex, Lodhi Road,
New Delhi-110003 ... Respondents
(By Advocate: Mr. S.M.Arif )
ORDER
Hon'ble Mr. Sudhir Kumar, Member (A):
The applicant of this case is aggrieved by the respondents having cancelled his candidature for the Combined Graduate Level Examination-2008 (CGLE-2008, in short) on the ground of his being "Overage'', and hence this OA.
2. The applicant's date of birth is 10.04.1974, and at the time of filing of the application, the OA, he was working as LDC/Gr.-IV of Delhi Administration Secretariat Service at the Aruna Asaf Ali 2 OA 458/2009 Government Hospital of Government of NCT of Delhi for more than three years. The Respondent No. 2 had issued an advertisement for CGLE-2008 for various posts, for which the maximum age limit was 27 years as on 01.01.2009, and for SC/ST candidates it was 37, and 35 years for OBC, in the case of the posts of Inspectors of Income Tax and Enforcement Officer etc. The applicant has submitted that even this upper age limit was relaxable upto 40 years, and 45 years for SC/ST, and 43 for OBCs in respect of all Central Government Civilian Employees who had rendered not less than 3 years' continuous and regular service as on 01.01.2009. The Central Government Civilian Employees were required to submit a Certificate in this regard, at the time of applying for the examination. The applicant has claimed that as per the definition of Central Government Civilian Employees, it was prescribed that it means that any person to whom the Central Civil Service (Conduct) Rules, 1964 apply, and that the applicant was covered by the said stipulation, as per the Staff Selection Commission's Notification for Tax Assistant Examination-2007 (Annexure A-3).
3. When the applicant applied to his office superior for issuance of the required certificate, the certificate was provided by the Head of Office of the Hospital through Annexure A-4, clearing clarifying that the applicant is covered under the CCS (Conduct) Rules, 1964. The applicant was initially issued a Roll No. for the CGLE-2008, through Annexure A-5, but just before the CGLE-2008 was to take place on 22.02.2009, the respondents passed an order dated 06.12.2008, through the 3 OA 458/2009 impugned Annexure A-1, cancelling his candidature on the ground of his being ''over-aged'', since the respondents did not consider the applicant as a Central Government Civilian Employee for the purpose of age relaxation as a Departmental candidate.
4. Aggrieved by that, the applicant has taken the ground that the impugned order is illegal, arbitrary, malafide, unjustified and unreasonable, and that if the respondents were having any such objections, they should not have even allowed him to take part in the Preliminary Examination, and once they had permitted him to take part in the Preliminary Examination, and he had qualified also, it was not open to them to take U turn, which was totally inappropriate. He has further taken the ground that in similar facts and circumstances, when an employee of the GNCT of Delhi was allowed to take part in the examination, and on qualifying the examination, he was denied appointment, this Tribunal had allowed OA no. 1732/2005 (Manoj Kumar Verma Vs. UOI and Ors) through order dated 1.12.2006 (Annexure A-6), through which the respondents were directed to consider the applicant's prayer for relaxation being granted to him as an employee of the Union Territory. The respondents had, thereafter, challenged the said order of this Tribunal in Manoj Kumar Verma (supra), but the same was not stayed, and vide its judgment in the relevant Writ Petition (Civil) No. 3584/2007, the Hon'ble Delhi High Court had directed the respondents to appoint the applicant therein to the post of Assistant Grade by treating him as a Central Government Civilian Employee, through the High Court's order 4 OA 458/2009 dated 15.05.2007 (Annexure A-7). The present applicant had also prayed for an ex-parte interim order for directing the respondents to issue him a roll number, and to allow him to appear in CGLE-2008 and further tests, and through its interim order dated 20.02.2009, a Coordinate Bench had directed the present applicant to be allowed provisionally to appear in the examination, subject to the decision of the present OA.
5. The respondents filed their counter reply on 20.09.2009, maintaining their stand that the applicant was ''over-aged'', as he was not eligible for relaxation in age, as was sought by him, as a Central Government Civilian Employee, though they had permitted him to provisionally appear in the main examination, obeying the interim orders of this Tribunal, subject to the decision of this OA. They had pointed out Para 26 of the notice of the said examination, relating to admission to the examination, and Para 5 (D) of the notice for CGLE-2008, giving the criteria for age relaxation. It was submitted that only Central Government Civilian Employees are entitled to get age relaxation, and Employees of the Govt. of NCT of Delhi are not eligible for such relaxation in age, rendering the present applicant ''over-aged", as per the extant Government policy in this regard. It was submitted that the applicant's candidature was provisional, subject to verification of his eligibility conditions, which had to be carried out later on.
6. It was further submitted that it was wrong to draw a parallel with the case of Manoj Kumar Verma (supra), who was a candidate of CGLE-2003, in which relaxation in age was also 5 OA 458/2009 admissible to the employees of Union Territories, for the posts of Assistant Grade only, but not for the other posts. It was further submitted that, because of this, even though the said Manoj Kumar Verma, candidate of CGLE-2003, had been selected for the post of Inspector in Central Excise, keeping in view the provisions of the notice of the examination, even the Hon'ble High Court of Delhi had directed to consider his case only for the post of Assistant Grade, for which relaxation in age was available to the employees of Union Territories, which orders of the Hon'ble High Court had been complied with, since the said Manoj Kumar Verma was coming in the merit list of Assistant Grade also, and he was recommended for appointment to the post of Assistant Grade.
7. It was submitted that in the case of present notice for CGLE-2008, the employees of the Union Territories are not entitled to relaxation in age for any posts, and that in view of the difference in the two Notifications itself, the case of present applicant is entirely different from that of the said Manoj Kumar Verma, and no parallel can be drawn between the two cases, and that the present applicant cannot seek shelter behind that earlier case. Thereafter, it was prayed that the interim order dated 20.02.2009 may be recalled, and respondents be allowed to reject the candidature of the applicant.
8. It was denied that in the impugned notice of CGLE-2008, it had anywhere been mentioned that the term Central Government Civilian Employees means any person to whom the CCS (Conduct), Rules, 1964 apply. It was pointed out that 6 OA 458/2009 though in the notice of Tax Assistant Examination, 2007, this aspect had been mentioned, as pointed out by the applicant also, such a definition of Central Government Civilian Employees had not been included in the notice for CGLE-2008.
9. It was further submitted that merely because the applicability of CCS (Conduct) Rules, 1964, may have been adopted for the purpose of administrative convenience by the Govt. of NCT of Delhi, the employees working under the Institutions GNCTD cannot claim to be Central Government Civilian Employees, which term is applicable only to those directly employed under Departments/Agencies under the Central Government.
10. It was clarified that even in the certificate furnished by the parent office of the applicant, it had nowhere been certified that the present applicant is a Central Government Civilian Employee and the words "Central Government" were conspicuous by their absence in the said certificate.
11. It was, therefore, submitted that when the employer of the applicant itself had not termed him as a Central Government Civilian Employee, the applicant cannot lay a claim on the basis of such a certificate, and that this aspect has been clarified by the DOP&T through their letter dated 30.12.2004.
12. It was further clarified that Respondent No.2 does not undertake any scrutiny of the applications before the written examination, and all applicants, except those whose applications 7 OA 458/2009 are summarily rejected, are allowed to appear in the examination, on provisional basis, subject to verification of their eligibility after selection in the examination. It was, therefore, submitted that onus lies squarely on the candidates to ensure that they fulfil all the eligibility with regard to age, educational qualifications etc., and that in the CGLE-2008, only those candidates were treated as departmental candidates who were employees of the Central Government, and hence the candidature of the applicant had been cancelled. It was, therefore, prayed that this Tribunal may recall the interim order dated 20.02.2009 and allow the respondents to reject the candidature of the applicant.
13. It was further submitted that instead of placing reliance on the advertisement notice for CGLE-2008, the applicant has incorrectly placed reliance upon the advertisement for Tax Assistant Examination, 2007, which rules were not applicable to the instant advertisement. It was submitted that since the post held by the applicant is not in connection with the affairs of the Union of India, therefore, the OA lacks merit and the applicant is not entitled to any relief, as claimed.
14. Thereafter, an amended OA was filed by the applicant on 29.07.2010, through which the applicant had laid a challenge to the DOP&T clarification regarding age relaxation dated 30.12.2004 itself, placed by him as Annexure A-1, which had been relied upon by the respondents in their reply, the other things remaining the same. He had further submitted that the 8 OA 458/2009 Aruna Asaf Ali Hospital was in existence even when there was no Govt. of NCT of Delhi, and, therefore, the applicant was fully a Central Government Civilian Employee, and was entitled to age relaxation after having put in three years' regular service.
15. He had further relied upon the judgment of Hon'ble Delhi High Court in the case of Rajni Dobhal Vs. UOI & Ors. (2004 (111) DLT 732), through which it was held that employees of Union Territories, including the Delhi Police, have the status of employees engaged with the affairs of the Union of India, and in the case of the present applicant the expenditure on his salary etc. is incurred from the Consolidated Fund of India, and, therefore, he is a Central Government Civilian Employee in terms of the above cited judgment of the Hon'ble High Court in Rajni Dobhal (supra) (Annexure A-8).
16. He had taken the further ground that since Central Government's Advance Career Progression Scheme (ACPS, in short) had been made applicable to Aruna Asaf Ali Government Hospital also, therefore, the employees of that Hospital are also Central Government Civilian Employees. He had further taken the further ground that since the benefit of the revised pay rules under the 6th Central Pay Commission, which was applicable only to Central Government Employees, had been extended to the applicant also, he is liable to be treated as a Central Government Civilian Employee. In the result, the applicant had prayed for the following modified reliefs:-
"8.1. To quash and set aside the impugned order dt.
6.12.2008 and O.M. dt. 30.12.2004 and action of the respondents cancelling the candidature of the applicant.9 OA 458/2009
2. To direct the respondents to treat the candidature of the applicant as valid for Combined Graduate Level Exam-2008 by treating the applicant as Central Govt. Civilian Employees for the purpose of age-relaxation and appoint him in the Combined Graduate Level Exam- 2008 with all consequential benefits as if the candidature of the applicant was never cancelled.
3. To award costs in favour of the applicants and pass any order or orders which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
17. Since the OA itself had been amended after filing of the counter reply, the applicant did not file any rejoinder. Thereafter, before the case came to be heard and reserved for orders, during the course of hearing, learned counsel for the applicant relied upon a Coordinate Bench order dated 28.09.2015 in OA No.2808/2009. In the context of the same impugned communication dated 30.12.2004, the Coordinate Bench had, in paragraphs 2 and 6, 7 and 8 of its order, directed as follows, and had allowed the OA, quashing the DOP&T clarification letter dated 30.12.2004 to the extent it relates to the personnel of Delhi Police:-
"2. Learned counsel appearing for the applicants referring to Office Memorandum dated 1st /4th Sept, 2006 issued by the Govt. of India, Ministry of Home Affairs, submitted that since personnel of Delhi Police are treated as Central Government employees and not the employees of the Union Territory of NCT of Delhi, the applicants are entitled to age relaxation as provided in the Advertisement dated 5.4.2008 published in the Employment News, which provides that the upper age limit as prescribed in 5 (A) will be relaxable up to the age of 32 (37 years for SC/ST and 35 years for OBC) in respect of Central Government Civilian Employees with not less than 3 years continuous and regular service as on 01.01.2009. Learned counsel, therefore, submits that the aforesaid communication dated 30.12.2004 may be set aside directing the respondents authority to consider the applicants' candidature for selection by treating them as Central Government Civilian Employees for the 10 OA 458/2009 purpose of age-relaxation, and also to declare their result, which has been withheld pursuant to the Interim Relief granted by this Tribunal.
xxx xxx xxx
6. We have considered the submissions advanced by the learned counsel for the parties. The Under Secretary to the Govt. of India (DP&T) has issued the communication dated 30.12.2004 intimating the Secretary of SSC that personnel of Delhi Police, are not treated as departmental candidates for appointment in Group "C" posts. It appears from the pleadings that at the relevant point of time persons serving in Delhi Police were not treated as Central Government. The said position, however, was clarified by the Office Memorandum dated 1st/4th September, 2006, issued by the Director (Delhi) Govt. of India, Ministry of Home Affairs, referring to in the note dated 4.7.2006 of the DOP&T, to the effect that personnel of Delhi Police, are the employees of the Central Government and not the Union Territory. Nothing has been placed before this Tribunal contrary to the said decision taken and intimated vide the aforesaid Office Memorandum dated 1st/4th September 2014. The fact remains that personnel of Delhi Police are to be treated as Central Government employees and, hence, the applicants are eligible for age relaxation.
It appears that pursuant to the Interim Relief granted on 30.12.2008 by this Tribunal directing the respondent No.4 to allow the applicants to appear for selection in Combined Graduate Level Exam-2008 provisionally, they have been allowed to appear. However, the result of the applicants has been withheld.
7. In view of the aforesaid position, we allow the OA directing the respondent No.4 to declare the result of the applicants, quashing the order dated 30.12.2004 to the extent it relates to the personnel of Delhi Police and direct the respondents to take consequential decision pursuant to the result declared by the SSC within a period of two months from the date of receipt of a copy of this order.
8. The OA is, accordingly, allowed as indicated above. No cost."
11 OA 458/2009
18. The learned counsel for the applicant, therefore, submitted that since a Coordinate Bench had already struck down the order at least in the case of the employees of Delhi Police, the DOP&T instruction dated 30.12.2004 deserves to be struck down altogether. He further reiterated the pleadings and grounds, as raised by the applicant in the original OA, as well as in amended OA.
19. Learned counsel for the applicant had also relied upon the judgment of Hon'ble Delhi High Court dated 04.08.2016 in WP (C) No. 5888/2015 in the case Government of National Capital Territory of Delhi Vs. Union of India, and others related Writ Petitions, by filing only the first page and pages 190-194 of that judgment containing the conclusions. By citing the above Hon'ble High Court judgment, he had submitted that through this detailed 194 pages judgment, the Hon'ble Delhi High Court had held that Delhi continues to be a Union Territory, even after the Constitution (69th Amendment) Act, 1991 inserting Article 239 AA, making special provisions with respect to Delhi, and that Article 239 continues to be applicable to Government of NCT of Delhi, and that the insertion of Article 239AA of the Constitution has not diluted the application of Article 239 in any manner, whatsoever. It was further submitted that in Paragraph 304 (v), it was held by the Hon'ble Delhi High Court that the matters connected with 'services' fall outside the purview of the Legislative Assembly of National Capital Territory of Delhi, and that the Lt. Governor of the NCT of Delhi shall, in respect of matters connected with services, exercise the powers 12 OA 458/2009 to discharge the functions of the Central Government, to the extent delegated to him from time to time by the President. Learned counsel for the applicant also submitted a copy of the letter dated 25.07.2002 issued by the Ministry of Home Affairs (MHA, in short) to the then Chief Secretary, Govt. of NCT of Delhi, in which the same aspect of law, since clarified by the Hon'ble Delhi High Court in the Paragraph 304 (i) and (v) of their judgment had already been clarified by MHA as long back as on 25.07.2002.
20. On the other hand, learned counsel for the respondents submitted that a Review Application had been filed in respect of the said order dated 28.09.2015 in OA 2809/2008, which review was still pending. He also submitted a copy of an order of another Coordinate Bench dated 09.07.2008 in OA no. 2394/2007 (Abhinandan Kumar Vs. UOI and Others), through which that Coordinate Bench, headed by the then Hon'ble Chairman, CAT, had clearly held that even though the superintendence and control of Delhi Police is vested with the Lt.Governor of Delhi, the Delhi Police does not appear to be a Central Government Department, and even if it is so assumed, then the applicant therein, in any case, cannot be a civilian employee. He had, therefore, submitted that the review filed against the order dated 28.09.2015 in OA no. 2809/2008 had been filed on the strength of the earlier judgment/ order dated 09.07.2008 in OA 2394/2007 (Abhinandan Kumar (supra). 13 OA 458/2009
21. He also submitted that in the Writ Petition (Civil) 3584/2007 through the order passed by the Hon'ble Delhi High Court on 15.05.2007, copy produced by him, the order dated 01.12.2006 passed in OA 1782/2005 (Manoj Kumar Verma (supra) had been stayed by the Hon'ble Delhi High Court, as had been admitted by the applicant himself by filing Annexure A-7 of this amended OA. Learned counsel also filed a copy of the order dated 12.02.2012 in OA 4353/2010 (Pankaj Kumar and Ors Vs. Staff Selection Commission through its Chairman and Ors), in which another Coordinate Bench, after considering the order of the Coordinate Bench in Abhinandan Kumar (supra), and after considering the judgment of Hon'ble Delhi High Court in Rajni Dobhal (supra), dismissed the OA, holding that the applicants therein, working as Sub Inspector and Head Constable in Delhi Police, were not entitled to age relaxation, as available in the case of departmental employees for appointment in Central Government posts.
22. Heard. We have given our anxious consideration to the facts of the case and have gone through even the entire judgment of the Hon'ble Delhi High Court dated 04.08.2016 in Government of National Capital Territory of Delhi Vs. Union of India, Writ Petition (Civil) 5888/2015 along with other Writ Petitions, only 5 pages of which detailed judgment had been filed by the learned counsel for the applicant.
23. The full import of the law, as it stands today, is that firstly Delhi continues to be a Union Territory, and that the insertion of 14 OA 458/2009 Article 239AA through the Constitution (69th Amendment) Act, 1991, has not diluted the application of Article 239 in any manner. But when, after going through the contents of Article 239 itself, it is seen that Union Territory can be administered by the President acting through an Administrator to be appointed by him, which Administrator may even be the Governor of a State, or Administrator of adjoining Union Territories, who shall then exercise his functions as such Administrator independently of the Council of Ministers, no portion of that Article 239 lays down the law that just because they are administered by the President through an Administrator, the Union Territories become an arm or wings of the Central Government.
24. Therefore, with or without the application of Article 239 AA, it cannot be held by any stretch of imagination, and legal fiction whatsoever, that the employees of the Union Territory of Delhi, or for that matter of any Union Territories whatsoever, can ever claim to be Central Government Civilian Employees, by virtue of application of Article 239. Actually, in the Scheme of Constitution, the Union of India falls within Part-V, to which Articles 52 to 151 apply, including the Articles falling under Chapter-IV, concerning the Union Judiciary, consisting of Supreme Court, and Chapter V concerning Comptroller and Auditor General of India.
25. Per contra, the States are governed by Part-VI of the Constitution of India, under Articles 152 to 237, including the High Courts in the States under Chapter V of Part VI, and the 15 OA 458/2009 Subordinate Courts under Chapter VI of Part-VI of the Constitution. Part-VII of the Union Constitution was omitted by the Constitution 7th Amendment Act, 1956. The Union Territories only fall within Part VIII, consisting of Articles 239 to 241 of the Constitution, with Articles 242 and 243 having since been omitted. Therefore, it is clear that any employee, whose service is in connection with the Union Territories, under Part VIII of the Constitution of India, under Articles 239 to 241, cannot claim equivalence with either the employees of the Union of India under Part-V of the Constitution, or the employees of the States under Part VI of the Constitution, for any purpose whatsoever, which is the import of the latest judgment of the Hon'ble Delhi High Court dated 04.08.2016 also, in which it was held that just because the Government of Union Territory of Delhi, came to be called as Government of NCT of Delhi, it still did not possess the status available to the Governments of the Sates under Part-VI of the Constitution.
26. Here, in the instant case, the applicant was, and, is an employee of a Hospital run by the Union Territory of Delhi, and the Union Territories continue to be governed by Part-VIII of the Constitution, under the administrator of the Union Territory appointed by the President. Therefore, no employees of the Union Territories, either of Delhi, or of any other Union Territories, can ever claim equivalence with and eligibility to the concessions extended to the employees of the Union of India, who fall within Part V of the Constitution of India. 16 OA 458/2009
27. Therefore, in the overall conspectus of the Constitutional position in this regard, even though certain rules, as are applicable to the Central Government servants, may have been adopted, for the purpose of administrative convenience, by Delhi, or by any other Union Territories also, it is held that none of them shall qualify to be classified as Central Govt. Civilian Employees.
28. Therefore, by virtue of the operation of the very judgment of the Hon'ble Delhi High Court dated 04.08.2016, five pages' portion of which was produced by the learned counsel for the applicant himself, it is found and held that there is no merit in the OA, and the OA is, therefore, liable to be rejected, and is, therefore, so rejected, but their shall be no order as to costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR ) MEMBER (J) MEMBER (A) 'sk'