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Judgment
O R D E R
BY MALLIKA ARYA, AM:-
In this case relating to regularization, the applicant has sought for the following relief:-
“8(8.1) That, the Hon’ble Court may please to direct the respondents to grant age relaxation and preference/priority against publication dated 30/5/15 for the post of Mazdoor in the office of respondent no.4 looking to his past long continuous service.
8.2That or else to regularize the services of the applicant as causal labour thereby passing appropriate order on the representation of the applicant
8.3Any other relief which this Hon’ble Court deems fit and proper.
The facts of the case in brief are that the applicant was appointed as a casual labour on 01.07.1996 after requisitioning his name from the employment exchange. The applicant was in continuous service since 1996 till July 2015 and was working under the administrative control of respondent No.4. The respondent No.4 issued an advertisement in 2015 for the post of Mazdoor in the regular pay scale of Rs. 5200-20200+1800 grade pay. The applicant applied for the said post in prescribed Performa on 11.06.2015 with all relevant documents. As the applicant was overage at the time of submission of application, he made a representation to the respondent authority on 01.07.2015 (Annexure A-11) seeking age relaxation in view of the past service rendered by him. However, no action has been taken on the representation of the applicant till date. Hence this O.A.
The respondents have filed their reply wherein it has been submitted that supply depot ASC Jabalpur has been operating Defence Indane Gas Agency for issue of LPG as part of free rations entitled to troops of dependent Army units. The applicant was working as a Staff person of "Gas Sewa Agency" which is a Regimental institute and his salary was being given out of funds of the agency. The services of the agency were terminated w.e.f. 10.10.2014, following the Govt. orders. For the services rendered in "Gas Sewa Agency" the applicant is not entitled for status of Casual Labour. All payments have been made to him from private funds. As far as, Defence Indane Gas Agency is concerned the services of the applicant were hired on part time basis. The respondents have further submitted that as per latest policy of the Govt. all cases of regularization of services of casual labourers for grant of temporary status (CLTS), are required to be considered and approved by DOP&T. There is no provision under the existing Govt. instructions either to grant temporary status to casual labourer who are not covered under DOP&T instructions dated 10.09.1993 or to regularize the services of casual labourers who have not been conferred temporary status. Accordingly, the applicant can not be considered against a direct recruitment vacancy, with relaxation of age limit, as the age relaxation is admissible only to departmental candidates holding regular posts in Govt. in India.
The applicant has filed the rejoinder to the reply filed by the respondents wherein he has re-iterated his earlier stand as taken in the O.A.
We have heard both the learned counsel for the parties and perused the pleadings and the documents on record. We have also perused the findings given in various judgments relied upon by counsel for both the parties.
It emerges from the records that the applicant was hired on part time basis by Gas Sewa Agency which was a regimental institute. The said agency is not a government agency and has been closed since 2014. It is not is dispute that the respondents issued notification in 2013 for filling up the post of Mazdoor in compliance with the orders of CAT, Jabalpur wherein specific directions were issued to consider the case of the applicant for regular appointment as and when a regular vacancy arises. The applicant was given a fair chance for selection to the post of mazdoor. Since the applicant was not having the requisite qualification of matriculation in 2013, his case could not be considered. The respondents have time and again considered his claim in light of directions issued by CAT Jabalpur.
It is a settled principle of law that appointment to any post under the State can only be made after issuance of an advertisement inviting applications from eligible candidates and selecting such candidates on merit through written examination or interview as provided under the recruitment rules. The respondents in their reply have submitted that the provision of age relaxation cannot be extended to the applicant in terms of the advertisement dated 30.05.2015 as he was not working in the respondent department. He was a part time worker working with a private gas agency which is a regimental institute. The benefit of age relaxation cannot be given as he is not a departmental candidate. There was an age bar prescribed under the notification for general candidates which was 18 to 25 years and for OBC it was 18 to 28 years. There is no provision for age relaxation under the said notification. The educational requirement of having matriculation or equivalent qualification could not be fulfilled by the applicant.
A co-ordinate Bench of this Tribunal in the case of Govinda Chadra Samal vs. All India Institute of medical science, passed in O.A. No. 167/2020 passed on 07.03.2024 has stated as follows:-
“Next submission of the learned counsel for the Applicant is that in the advertisement it was specifically provided that 'qualification and experiences as prescribed may be relaxed in exceptional cases at the discretion of the Competent Authority. The experiences will be counted as on the last date of submission of application" and, thus, the Respondents should have condoned the short fall period of experience so as to select him to the post in question. This was contested by the Respondents' counsel. It may be noted that a candidate has got no absolute right to claim relaxation of Rules by exercising the discretion by the authority concerned is the law of the land. Further, it is well settled law that when and at what point of time and under which circumstances such discretion can be exercised is absolutely within the domain of the authority concerned but one cannot find fault for non exercise of discretion of relaxation of RR in his/her favour; especially when adequate number of eligible and entitled candidates are available for selection and appointment. In the RR no such provision of relaxation of essential qualification is vested with the Recruitment Authority.”
It is a settled law that once the experts have taken a decision that the candidate meets the eligibility conditions of the advertisement, the Court could not have interfered with and set aside the appointment. Hon'ble Apex Court in the case of University of Mysore vs. C. D. Govinda Rao, AIR 1965 SC 491, Tariq Islam vs. Aligarh Muslim University (2001) 8 SCC 546 and Rajbir Singh Dalal vs. Chaudhary Devi Lal University (2008) 9 SCC 284, has taken a view that the Court shall not generally sit in appeal over the opinion expressed by expert academic bodies and normally it is wise and safe for the Courts to leave the decision of academic experts who are more familiar with the problem they face, than the Courts generally are.
Hon'ble Apex Court in the case of Dalpat Abasaheb Solunke vs. Dr. B.S. Mahajan, 1990 (1) SCC 305 has held:
"It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is it for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved mala ides, affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant status. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."
The Hon'ble Apex Court in the case of Secretary, State of Karnataka and others vs. Uma Devi (3) and others, (2006) 4 SCC 1 has held that :-
"....only the duly qualified persons in duly sanctioned vacant post who had continued to work for 10 years or more without intervention of Court or Tribunal, in such case, the State Government and their instrumentalities should take steps to regularize as a one-time measure. Further, it was held that there is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis to claim that they have a right to be absorbed in service. They cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirement of Article 14 and 16 of the Constitution. The right to be treated equally with other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating inequals as equals."
In backdrop of the aforesaid dicta laid down by the Hon'ble Apex Court and discussions made hereinabove, we do not find any legal infirmity to interfere with the orders passed by the respondents.
Accordingly, the O.A. stands dismissed. No costs.
As a sequel thereof, pending Miscellaneous Application(s), if any, shall also stands disposed of.