SURENDER KUMAR AND OTHERS vs GOVT OF NCT OF DELHI AND OTHERS
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 16.02.2024
CM APPL. 7872/2024, CM APPL. 7873/2024, REVIEW PET.46/2024
IN
+ W.P.(C) 9378/2021
SURENDER KUMAR AND OTHERS ….. Petitioners
Through: Mr. Vinay Kumar Garg, Sr. Advocate with Mr. Siddarth Arora and Mr. Gaurav Kumar, Advocates.
versus
GOVT OF NCT OF DELHI AND OTHERS ….. Respondents
Through: Mrs. Avnish Ahlawat, Standing Counsel.
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
J U D G M E N T
ANOOP KUMAR MENDIRATTA, J. (ORAL)
CM APPL. 7873/2024
For the reasons stated in the application, delay of five days in preferring the Review Petition is condoned.
Application is accordingly disposed of.
REVIEW PET. 46/2024 in W.P.(C) 9378/2021, CM APPL.7872/2024
1. A Review Petition has been preferred on behalf of petitioner Vijay Dagar {petitioner No.13 in W.P.(C) 9378/2021 decided on November 02, 2023} under Article 215 of the Constitution of India and Order XLVII Rule 1 of CPC read with Section 151 CPC seeking review of judgment dated 02.11.2023 passed by this Court in W.P.(C) 9378/2021, Surender Kumar and Others v. Govt of NCT of Delhi and Others.
2. Vide judgment dated 02.11.2023, W.P.(C) 9378/2021, W.P.(C) 9539/2021, W.P.(C) 9671/2021, W.P.(C) 9806/2021 preferred by the petitioners, challenging order dated March 25, 2021 passed by the Central Administrative Tribunal, Principal Bench, New Delhi were disposed of in terms of para 22 as under:
22. In the facts and circumstances of the case, we are of the considered opinion that in order to facilitate the contractual employees to participate in the recruitment process in conformity with OM dated June 11, 2019 and July 10, 2019, the respondents are bound to consider and grant the age relaxation to the petitioners as a one-time measure. UPSC is accordingly directed to release the result of the candidates after considering the age relaxation in terms of aforesaid OMs and subject to the petitioners satisfying the other terms and conditions of the advertisement. Writ Petitions preferred by the petitioners are accordingly disposed of. The objections raised on behalf of the intervener Shitize Rao are dismissed. No order as to costs. Pending applications, if any, also stand disposed of.
3. Petitioner seeks review of judgment dated November 02, 2023 primarily on the ground that the petitioner apart from age relaxation in terms of the aforesaid policy/O.Ms. is also entitled to age relaxation for a period of 02 months and 21 days (i.e. to the extent he is falling short of age, to meet the eligibility), since the recruitment process for appointment to the post of APP was not undertaken in between 2015-2021.
4. The emphasis laid by learned counsel for the petitioner is that the aspects of relaxation of age apart from the O.Ms., due to non-conduct of examination has not been considered in the judgment. It is urged that whensoever a selection process is delayed or not undertaken by the State, there is an inherent prejudice to such contractual employees, who become overage by the time the recruitment process is initiated. Reliance is further placed upon Sachin and Others v. Central Reserve Police Force and Another, 2023 SCC OnLine Del 1545 and High Court of Delhi v. Devina Sharma, Civil Appeal No.2016/2022 decided on March 14, 2022.
5. It is imperative to notice at this stage itself that in W.P.(C) 9378/2021, objections were raised on behalf of intervener/objector Shitize Rao, opposing the grant of relaxation in age to the contractual employees (petitioners), since it prejudices the other eligible candidates who meet out the Recruitment Rules, as they may not be finally placed in the merit list, in case of selection of the contractual candidates being granted age relaxation and gaining a higher merit position.
6. Though strictly speaking, contractual employees may not have a legal right for age relaxation but the memorandum/policy issued by the State/department providing for age relaxation has a legal validity and cannot be ignored by the department/exam conducting agency. Keeping the same in perspective, it was held by this Court that the respondents are bound to consider and grant the age relaxation to the petitioners as a one time measure in terms of O.M. dated June 11, 2019 and July 10, 2019. Further, the contention raised on behalf of the intervener/objector Shitize Rao, opposing the grant of age relaxation to the contractual employees working in the department, was dismissed.
7. The Special Leave Petition (Civil) 1721-1724/2024 preferred on behalf of intervener Shitize Rao, challenging the judgment passed by this Court has been dismissed vide order dated January 25, 2024 by the Honble Apex Court.
8. The contention raised by the learned counsel for the petitioner that the aspect of relaxation of age on account of non-conduct of examination in between 2015-2021, apart from the age relaxation in terms of the policy of Govt. of NCT of Delhi has not been considered by this Court, is fallacious. The findings of this Court in para 17 to 20 of the judgment may be beneficially reproduced:
17. Office Memorandum dated June 11, 2019 and July 10, 2019 referred to above were duly issued with the approval of the competent authority for extending relaxation in upper age limit to the contractual employees working in the Govt. of NCT of Delhi. The Standard Operating Procedure in terms of aforesaid guidelines clarify that the one-time relaxation in upper age limit would be upto maximum period of five years as a one-time relaxation subject to number of years spent in the department on contract basis. Further, such employees should have worked for at least 120 or 180 days in a particular academic year depending upon whether the same pertains to the teaching post or other administrative posts. The relaxation in upper age limit is further confined only in respect of the department in which the contractual employees had been working. It also specifies that the contractual employees who had already availed one time age relaxation granted by respective department, would not be eligible under the scheme. The age relaxation is further not to be extended in respect of the employees whose services were terminated due to unsatisfactory work during their contractual employment.
18. It is pertinent to observe that depending upon exigencies, the government has a right to appoint employees on contract basis/casual labour along with set of regular employees who form a separate class. The process of regular employment is mandated and envisaged under the Rules but due to unforeseen circumstances or the policy of the government, at times, the process of regular employment may be delayed. It is well settled that such regular vacancies cannot be filled except by way of regular recruitment on permanent basis and the contractual employees cannot be regularized as settled by the Honble Apex Court in Uma Devi (supra).
Whenever a candidate who is appointed by adopting a due selection procedure on a contractual employment, there is a legitimate expectation of participating in the regular recruitment process undertaken for filling up of the posts. Wheresoever, such a selection process is delayed or not undertaken by the State/Department, there is an inherent prejudice to such contractual candidates who become overage by the time the recruitment process is initiated, though there may not be express promise by the State for any such relaxation. The State definitely gains in case such contractual employees with appropriate experience, having worked in the department, are given a fair opportunity to compete with other candidates in an examination conducted by UPSC/State Public Service Commission. It may be difficult to accept the contention raised on behalf of the intervener/objector Shitize Rao that such age relaxation to the contractual employees working in the department, would per se perpetuate an illegality or is in violation of Article 14 of the Constitution of India. It needs to be kept in perspective that though strictly speaking there may not be a legal right to conferred on such contractual employees but the memorandum/policy issued by the State/Department providing for age relaxation has a legal validity and cannot be ignored by the department/exam conducting agency.
19. It may further be observed that Clause (1) of Article 320 provides that it shall be the duty of the Union Public Service Commission and State Public Service Commission to conduct examinations for appointment to the service of Union and service of State respectively. Clause (3) of Article 320 further enumerates that UPSC or State Public Service Commission, as the case may be, shall be consulted in respect of the matters mentioned in sub-clause (a) to (e) referred therein.
It is not the case of UPSC that policy directive in respect of OM No.F.19(11)/2015/S-IV/1751-1756 dated June 11, 2019 and OM No.F.19(11)/2015/S-IV/2021-2025 dated July 10, 2019, referred to above, were not issued by the competent authority or was in violation of any regulations. The aforesaid memorandums providing for relaxation of age were issued with the objective that contractual employees may not be adversely impacted on account of non-holding of examination by the department/State within a reasonable period of time. The said policy is in vogue and has not been withdrawn by the Govt. of NCT of Delhi. The aforesaid memorandums issued by Govt. of NCT of Delhi fulfill the test of legitimacy, suitability, necessity and balancing the values and fall within the domain of Executive.
In view of above, we do not see any reasons to interfere in the realm of the aforesaid memorandum/policy notified vide OM No.F.19(11)/2015/S-IV/1751-1756 dated June 11, 2019 and OM No.F.19(11)/2015/S-IV/2021-2025 dated July 10, 2019 by the Govt. of NCT of Delhi and the same do not offend Article 14, 16 or 21 of the Constitution of India.
20. The case of the petitioners stands squarely covered under the policy. The burden lay on the concerned department to invariably indicate the clause of relaxation in upper age limit to the contractual employees while sending requisition for direct recruitment of vacancies to UPSC, which is the concerned recruitment agency. The failure of the department as well as UPSC to notify the advertisement in terms of said OMs cannot be read adversely against the petitioners, who were duly entitled to age relaxation in terms of aforesaid OMs dated June 11, 2019 and July 10, 2019 notified by the Govt. of NCT of Delhi. Further, the department concerned in terms of the said OMs was bound to issue the certificate to the petitioners by indicating the quantum of age relaxation. UPSC was bound with the memorandum/policy directions, which stood issued by the Govt. of NCT of Delhi with the approval of the competent authority. The equity in favour of petitioners outweighs, as they cannot be termed to be irregularly or illegally appointed against the contractual vacancies. Having gained sufficient experience while working as contractual APPs, any deficiency in age relaxation stands compensated by the valuable experience gained by them. The contentions raised on behalf of the objector/intervener Shitize Rao as well as the respondents are without any merit.
9. It was duly noticed by this Court that the very purpose of aforesaid memorandums dated June 11, 2019 and July 10, 2019 itself, was for providing relaxation of age only to the contractual employees to ensure that they may not be adversely impacted on account of non-conduct of examination by the department/State within a reasonable period of time. The objective of the memorandums was not to provide the relaxation of age generally over and above the relaxation in terms of O.M. dated June 11, 2019 and July 10, 2019. Petitioner No.13 Vijay Dagar joined as APP on 17.07.2020 and his contractual service for period of 06 months 15 days was only required to be considered in terms of the policy. The age relaxation cannot be exclusively extended to the petitioner over and above the provisions of the policy since the conditions of meeting eligibility of age apart from the relaxation in terms of the policy, is uniformly applicable to all the candidates. No exception can be carved in favour of the petitioner merely because he has qualified the examination or on the ground that the examination could not be conducted for recruitment of APPs for a particular period. The authorities referred to by learned counsel for the petitioner are distinguishable on facts.
10. It is important to note that nothing precluded the petitioner to approach this Court seeking a mandamus for advertising the posts of APP, for enabling him to apply when he was within the age limit, and had not joined in the department on contractual basis. Having been aware that the petitioner may not meet the conditions of advertisement even after age relaxation in terms of the policy, the petitioner took a chance only at the last moment for enabling him to appear in the said exam. The exam has been conducted by UPSC on PAN India basis and a selective relaxation in favour of the petitioner over and above the age relaxation in terms of the policy cannot be considered, merely on the ground that the exam was not conducted for a particular period.
11. In Amant Kumar and Others v. The Commissioner of Police and Others, W.P.(C) 14022/2023 decided by this Court on November 07, 2023, petitioners therein had sought age relaxation on the ground that the examination had not been conducted in 2021 and 2022, despite the legal mandate to conduct the examination twice a year, in terms of the relevant rules under Delhi Police (Appointment and Recruitment) Rules, 1980. Reliance was also placed by the petitioners therein on Sachin and Others v. Central Reserve Police Force (supra), as well as High Court of Delhi v. Devina Sharma (supra). It was observed by this Court that in case the relaxation as claimed is granted, it would create a separate class/category of applicants with vested rights for age relaxation which is not the intention of the Recruitment Rules. Further, granting of relief of age relaxation would create a situation where the potential applicants who could not come to the Tribunal would be deprived of such an opportunity. Further, creating such type of class and vested rights in favour of applicants therein would be in violation of Article 14 and 16 of Constitution of India, because it will discriminate other potential candidates who would have applied had they known that such relaxation would be granted. Also, the judgments referred to above as relied on behalf of the petitioners were found distinguishable on facts.
12. For the foregoing reasons, the Review Petition preferred on behalf of the petitioner is without merits and is accordingly dismissed. Pending applications, if any, also stand disposed of.
(ANOOP KUMAR MENDIRATTA)
JUDGE
(V. KAMESWAR RAO)
JUDGE
FEBRUARY 16, 2024/sd
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