PANKAJ KUMAR v. M/O HEALTH AND FAMILY WELFARE

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merit list in view of the ratio laid down by the Hon"ble Apex Court in the „Grih Kalyan Kendra Workers" Union"s case (supra) following which the central govt. decided to grant age relaxation equal to number of years served for recruitment against notified vacancy to the „ad-hoc workers" of the „Grih Kalyan Kendra" and in view of ratio laid down by the Hon"ble Supreme Court vide its recent judgment dt. 25.032021 in Civil Appeal No. 1007 of 2021, titled as University of Delhi v. Delhi University Contract Employees Union & Ors.,."

2. The facts as stated in the OA are that the applicants are working as OT Technicians on contract basis and appointed between August 2017 to May 2018. On 05.04.2021, respondent No. 3 issued a Notification inviting applications from eligible candidates for filing up several Group C posts including 41 posts of O.T. Technician on regular basis. The applicants"

candidature was not considered stating that the applicants are over aged. The applicants made representation for consideration of their candidature and grant of age relaxation. They submit that they possess the essential qualifications and experience and have been appointed against the sanctioned and vacant post of OT Technician. They are performing similar duties and responsibilities as that of full time OT Technician

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and hence are entitled for age relaxation at par with the government employees/officials of the Hospital/Institution.

3. It is further submitted that the applicants acquired the professional qualification of Diploma in the discipline of „Operation Theater & Technology" during the years 2010 to 2014 and that their qualifications would become redundant if they don"t get the opportunity to compete for recruitment to the post of OT Technician on regular basis. According to them, the respondents are obliged to grant age relaxation to the applicants equal to the number of years served with them so as to enable them to compete. They submit that they are covered by the judgment of the Hon"ble Supreme Court in Grih Kalyan Kendra Workers" Union vs. Union of India and another and also by the judgment in University of Delhi vs. Delhi University Contract Employees Union & Ors., C.A. No. 1007/2021, according to which they are not only entitled for age relaxation but also entitled for benefits of extra 5 marks or more while finalizing the merit list qua outsiders.

4. Notices were issued to the respondents who put appearance through their counsel and filed reply. Rejoinder thereto has also been filed.

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5. In Paragraphs 8, 9, 11, 12 and 13 of their counter, the respondents have averred as under:

"8. In reply to the averments made in para 4.7 of the Original Application it is humbly submitted that one has to satisfy the requisite qualification and mandatory eligibility conditions while applying in response to any post in Government Departments. The candidature of the applicants with reference to their applications in response to advertisement published in the year 2017 and 2018, as the case may be, was considered and they were selected for contractual appointment as OT Technician on satisfying the eligibilities conditions as given in the advertisement. It was specifically mentioned that the contractual appointment to the post of OT Technician

"....the appointment is purely on contract basis for a period of one year". It was also mentioned that 'the appointment is on contract basis and will not bestow any claim for regular appointment". Therefore, there is no iota of doubt that there was no promise from the Respondents for any relaxation in age in respect of contractual appointee, hence, the applicants have no legitimate claim for age relaxation.

9. The averments made by the applicants in para 4.8 & 4.9 of the Original Application denied being factually incorrect. The offer of appointments issued to the contractual appointed workmen neither carry the clause of probation period nor they were asked to undergo for police verification, hence the applicants can't claim their case being identical to the regular appointee. The File number given to the Offer of appointment issued to the applicants speak itself "OT-Tech-

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Contract/Admn.-II/2017/5178, dated 23rd August, 2017". Moreover, the applicants were asked to submit a certificate from qualified Medical Practioner whereas in the case of regular recruited candidates, they are required to undergo medical examination through Medical Board.

11. The averments made in para 4.12 of the Original Application vehemently denied being baseless. As per the records, as against the sanction strength of 54 OT Technicians, 14 officials are working on Contract basis with reference to the advertisements issued in 2017- 18 + 23 Contractual OT Technician recruited through GEM. Thus, the calculations worked out by the applicants and placed before this Hon'ble Tribunal are misleading.

12. In reply to the averments made in para 4.13 of the original application, it is humbly submitted that the contractual workmen do not fall in the category of 'Departmental Candidates', as the incumbents appointed on regular basis on civil posts are recognized as Government servant and departmental candidates. The service rendered on ad-hoc basis or on contractual basis does not bestow any such claim which are admissible to the Government servant appointed on civil posts on regular basis. The matrix of the judgment passed by Hon'ble Supreme Court in the matter of Grih Kalyan Kendra Workers' Union V. Union of India and another do not squarely cover the case of applicants of this original application. It is pertinent to mention here that the Hon'ble Supreme Court vide its land mark judgment in the case of Secretary, State of Karnataka & Others Vs. Umadevi & Others has specifically held that Courts should desist from issuing orders preventing regular selection

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or recruitment at the instance of persons who are only ad-hoc/ contractual/casual employees and who have not secured regular appointments as per procedure established. The Supreme Court has further observed that passing of orders preventing regular recruitment tends to defeat the very constitutional scheme of public employment and that powers under Article 226 of the Constitution of India therefore cannot be exercised for perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment".

13. The averments made in para 4.14 of the Original Application denied being factually incorrect. The case of the applicants is not squarely covered with the matrix of the judgment passed by the Hon'ble High Court in Civil Appeal No. 1007 of 2021 titled University of Delhi V. Delhi University Contact Employees Union & Ors and applicants are not similarly placed workmen."

6. Heard the learned counsel for the parties, perused the records and appreciated the legal position.

7. The applicants have, in support of their case, relied upon the judgment of Hon"ble High Court of Delhi in LPA No. 989/2013 & CM Nos. 20764/2013, 10976/2014 titled Delhi University Contract Employees' Union and Ors. vs. University of Delhi and Ors., it has been observed as under:

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"Result

102. In view thereof, this appeal is disposed of with a direction to the University of Delhi to design and hold an appropriate test for selection in terms of the notification dated 6th November, 2013 having regard to the fact that the persons working on contract basis covered under the notification dated 6 November, 2013 had obtained their essential qualifications much before the fresh applicants; that they have rendered satisfactory service and bring with them the benefit of the knowledge acquired by experience gained while working on contract basis with the Delhi University.

103. It is also clarified that the same persons who shall be so tested would be those who would be eligible pursuant to the advertisement dated 6^thNovember, 2013."

8. Further, in Civil Appeal No. 1007 of 2021, arising out of the above judgment in LPA No. 989/2013, the Hon"ble Supreme Court has held that :

2. While allowing the Letters Patent Appeal preferred by the Delhi University Contract Employees' Union ("the Union" for short) & Others, following conclusions were arrived at and directions were issued by the Division Bench of the High Court:-

"Conclusion

I. The decision of the University of Delhi to grant one time age exemption to all contract labour who may have served for over a year on such basis for participating in the selection in effect is in the nature of the Scheme postulated by the Supreme Court in para 53 of Umadevi. It cannot be denied that such opportunity to participate in the selection process has to be meaningful.

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II. In view of the age relaxation given by the University of Delhi, an opportunity to undergo the selection process was made available to all contract employees who had worked for one year or more on contract. As a result of such opportunity, the contract workers were rendered entitled to be tested on a realistic and fair scale and benchmark. There is substance in the grievance of the contractual employees that to test them on the same standards as new applicants is to deprive them of a fair and meaningful opportunity to participate in the selection process.

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4. In the present case, it cannot be and could not be disputed that employment to be given pursuant to the posts which have been advertised by the advertisement dated 6.11.2013 is with respect to regular posts or permanent posts. Accordingly, in view of the ratio of the judgment in the case of Umadevi, and more particularly para-4 thereof, this Court cannot interdict the regular selection process. I may note that the learned senior counsel for respondent no. 1 states that regular employment in the posts now advertised could not be given. earlier because of a ban on regular recruitments imposed by UGC. Since that ban has been lifted, regular posts are now being advertised for being filled in. I may note that I take the statement on record made on behalf of respondent no. 1 that the University is going to give age relaxation to all candidates in its employment which would be the length of service which has been rendered by that employee in the employment of respondent no. 1-University while working on

casual/adhoc/temporary status basis. This statement is made pursuant to the letter dated 5.12.2013 which is placed on record.

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18. We, therefore, direct that all the concerned contract employees engaged by the University be afforded benefits as detailed in paragraphs 6 and 7 of the affidavit dated 09.03.2021 with following modifications:

(a) The benefit of age relaxation as contemplated in paragraph 6 of the affidavit without any qualification must be extended to all the contract employees.

(b) In modification of paragraph 7 of the affidavit, those employees who were engaged in the year 2011 be given the benefit of 10 marks in the ensuing selection process while for every additional year that a contract employee had put in, benefit of one more mark subject to the ceiling of 8 additional marks be given. In other words, if a contract employee was engaged for the first time in the year 2010, he shall be entitled to the benefit of 11 marks, while one engaged since 2003 shall be given 18 marks, as against the appointee of 2011 who will have the advantage of only 10 marks. The contract appointees of 2012 and 2013 will have the advantage of 9 and 8 marks respectively.

(c) The Public Notice inviting applications from the candidates shall specifically state that the advantage in terms of the order passed by this Court would be conferred upon the contract employees so that other candidates are put to adequate notice..

(d) All the contract employees shall be entitled to offer their candidature for the ensuing selection in next four weeks and in order to give them sufficient time to prepare, the test shall be undertaken only after three

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months of the receipt of applications from the candidates.

19. We hasten to add that these directions are premised on two basic submissions advanced by Mr. Santosh Kumar, learned advocate for the University that;

(i) the total marks for the test will be 300 marks and thus the maximum advantage which a contract employee will have is of 18 marks which in turn is relatable to advantage of 6% as against other participants in the selection process;

(ii) all the contract employees are otherwise entitled and eligible to participate in the selection process.

9. Reliance is also placed upon judgment of the Hon"ble High Court of Delhi in W.P (C) No. 14160/2009, S.K. Chaudhary & ors. Vs. GNCTD and anr., the relevant paras are quoted hereunder:

2. Noting various decisions and in particular the Constitution Bench decision of the Supreme Court reported as 2006 (4) SCC

1 Secretary, State of Karnataka & Ors. vs Umadevi & Ors. the view taken by the Tribunal is that the respondents before it i.e. Government of NCT of Delhi and Delhi State Industrial Development Corporation should hold a selection for the posts of Junior Engineers through Delhi State Staff Selection Board (DSSSB) and while so doing age relaxation benefit would be given as also due weightage to the experience gained while working with DSIDC shall be granted.

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5. While serving DSIDC some of the writ petitioners were later on inducted as Junior Engineers on ad-hoc basis and some as Assistant Engineers on ad-hoc basis.

6. As per the notified Recruitment Rules the educational qualification prescribed for the post Junior Engineer is a Diploma in Engineering and relevant would it be for us to note that all writ petitioners possess either a Diploma in Engineering or a Degree in Engineering.

8. One more fact of importance needs to be noted. 35 posts of Junior Engineers are sanctioned as also created in DSIDC and when writ petitioners were, after induction in service as Work Assistants/Technical Supervisors made to perform duties as Junior Engineers or Assistant Engineers, 11 vacant posts of Junior Engineers and Assistant Engineers existed in DSIDC.

11. The decision in Umadevi's case would reveal the shifting currents in judicial opinions on the subject of persons working for years together as daily wage employees, muster roll employees, temporary employees or ad- hoc employees and they having a claim to be regularized against the State. The case projected by these employees was that a model State cannot resort to practices which are akin to unfair trade practices. They urged that a model State cannot resort to a strategium of employment where regular hands are required perennially and yet in spite thereof regular posts are created. Appointees given benefits of regular public employment and others who are engaged on daily wage basis, muster roll basis, ad-hoc basis or temporary basis are being discriminated.

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19. Now, a procedure or manner of appointment which goes to the root of the appointment would be where a person who is ineligible is appointed and there is no sanctioned post; eligibility, with reference to the educational, experience and age requirement is ignored.

20. So understood, the facts of the instant case would bring out that the writ petitioners were irregularly appointed and not illegally appointed.

21. Thus, all writ petitioners would be entitled to the benefit of the observations of the Supreme Court and the law declared in Paragraph 53 of the opinion in Umadevi's case (supra).

22. Thus, the respondents would be obliged, as a one-time measure, to undertake the exercise to fill up the vacant sanctioned posts and while so doing, would be obliged to consider the 19 writ petitioners.

24. However, to advertise the posts, is the direction issued by the Tribunal that the selection would be through DSSSB and after notifying the vacancies to be filled up by one and all and while so doing, after subjecting the writ petitioners to the tests conducted by DSSSB which would be written as well as an interview to give weightage to the writ petitioners with reference to their past experience.

25. Now, making petitioners compete with fresh graduate Engineers whose theoretical knowledge, being immediately out of college, would be most unfair.

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26. Noting that neither in Umadevi's case nor in M.K. Kesari's case the Supreme Court rendered an opinion as to what process of regularization should be adopted in cases where initial appointment was irregular and not illegal, we expand upon this subject by opining that the process through which irregular appointments need to be subjected to convert the same into regular appointments has to be a selection process devised where only the irregularly appointed employees are uniformly tested with respect to the minimum theory; keeping in view the experience gained by them. In other words, the test has not to be theoretical but an application based selection process.

28. Such petitioners who clear the selection process, which would be limited to the writ petitioners, would be inducted permanently against the posts they are currently holding.

10. The respondents opposed the contentions of the applicants and have also relied upon a judgment of the Hon"ble Supreme Court in Delhi Subordinate Services Selection Board & Ar. Vs. Seema Kapoor, Civil Appeal No. 4461 of 2021, wherein it has been observed in paras 1, 5, 8 and 9 as under:

"1. The challenge in the present appeal is to an order passed by the Delhi High Court on 20.2.2019 affirming the order passed by the Central Administrative Tribunal, Principal Bench, New Delhi on 5.9.2018 whereby an original application (OA) filed by the respondent herein was allowed, holding that she was entitled to age relaxation of five years

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for appointment to the post of PGT (English) Female.

5. Learned counsel for the appellants argued that as per the conditions of advertisement, the age could be relaxed in case of Government servants and departmental candidates. It is argued that the respondent is not a government servant nor a departmental candidate, therefore, the benefit of age relaxation is not permissible. It is also argued that the Circular of the Government of India dated 27.3.2012 in respect of relaxation of upper age limit allowed to various categories of various Government servants are applicable only to Central Government civilian employees holding civil posts and are not applicable to the personnel working in the autonomous/statutory bodies, public sector undertakings etc. which are governed by regulations/statutes issued by the concerned administrative Ministries/Departments….

8. We have heard learned counsel for the parties and find that the order passed by the Central Administrative Tribunal and that of the High Court are not sustainable. Firstly, the High Court has quoted a wrong provision in the order passed relating to subsequent advertisement. Secondly, the benefit of age relaxation is permissible for government servants and departmental candidates. It is not even the stand of the respondent that she is a government servant and, rightly so, as she is employed in an autonomous body i.e. Municipal Corporation established under a specific statute. The expression „Departmental Candidates" is in respect of the candidates who are working in the concerned Department i.e. Education. The Circular of the Government of India dated 27.3.2012 has

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made it explicitly clear that the benefit of age relaxation is only meant for civil employees of the Central Government and not to the employees of the autonomous bodies, public sector undertakings etc. Therefore, the respondent, as an employee of the

autonomous body, i.e. the Corporation, is not entitled to age relaxation either as a departmental candidate or as a government servant.

9. The argument that the respondent is in the feeder cadre and should be treated as a departmental candidate is again not sustainable. The Recruitment Rules mentioned by the respondent provides a promotion channel to the teachers working in the Municipal Corporation. Such channel of promotion is in no way comparable for appointment to the post as direct recruit. The respondent would be entitled to be considered for promotion in terms of the statutory rules on the basis of her seniority. Therefore, the respondent is not entitled to age relaxation as she cannot be considered as a departmental candidate for appointment by way of direct recruit.

11. We have gone through the judgment relied upon the learned counsel for the applicants in the case of Delhi University Contract Employees Union and Others (supra)

where the Apex Court has not only directed the respondents to consider the case of those contract employees but age relaxation as contemplated in the Rules shall be given to them to the extent of the number of years of service rendered by

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them. Also, while considering their case for regularization, benefit of 10 marks in the ensuing selection process be given to the contract employees.

12. In the present case, the respondents may evolve a system based upon the aforementioned judgment in Delhi University Contract Employees Union and Others (supra) in order to consider the applicants herein for regularization in terms of the number of years of service rendered by them. Though, learned counsel for the applicants has relied upon the above cited judgment, we are of the view that we leave it upon the respondents to evolve such a policy because whatever the respondents decide, it will be future guidelines for other contractual employees too.

13. In view of the above, the present OA succeeds. We hereby direct the respondents to consider the case of the applicants for regularisation, within a period of thee months from the date of receipt of a certified copy of this order. No order as to costs.

(Dr. Anand S. Khati) (Ashish Kalia) Member (A) Member (J)

/NS/