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Judgment
N. Kumar, J.—The Director of Census Operations, Government of India, has preferred this writ petition challenging the order passed by the Central Administrative Tribunal where a direction is given to them to appoint the respondents herein in the regular vacant posts forthwith.
For the purpose of convenience, the parties are referred to as they are referred to before the Tribunal.
The three applicants are physically handicapped. They were engaged in the Department of Census for the purpose of compilation of the 1991 Census on a consolidated salary of Rs. 1,050/- per month and assigned the work of checker/coder. Their services were terminated in the year 1994 by different orders and on different dates. Aggrieved by the said order, they filed applications in O.A. Nos. 8/1994 and 197 to 206/1994 along with the others before the Tribunal. The Tribunal, by order dated 22.02.1994 directed the respondents as hereunder:
"We hope that in future if any vacancy arises which can be manned by these applicants subject to their eligibility under Rules, their cases must be considered on top priority basis. It will be advisable for the department to maintain a comprehensive list of employees whose services are terminated in the manner indicated under the impugned orders. The department should not follow the policy of pick and choose, instead strictly recall the candidates in accordance with their seniority reflected by the said list and appoint them in a regular fashion."
As in terms of the said order, no action was taken, the applicants again approached the Tribunal in O.A. No. 392/2000 and 401/2000. The said applications were allowed on 11.04.2002 and the respondents were directed to consider the case of the applicants, in the light of the earlier quoted judgments, which in itself supported by the judgment of the Supreme Court reported in 1997(1) SCC 530, mandating that retrenched employees are required to be given preference. The said order was challenged by the respondents before this Court by preferring writ petitions, which came to be dismissed, by this Court, by an order dated 18.03.2005. Inspite of the same, as no relief was forthcoming, a contempt petition came to be filed in Contempt Petition No. 3/2008 in O.A. No. 401 and 402/2000. The said contempt petitions were dispose of on 09.01.2005 with the following observation:
"........When the matter came up for hearing today, the counsel for the respondents has produced a letter dated 07.01.2009 undertaking that the orders have been complied with. Copy of the letter may be kept on record. Both counsels agreed that the contempt petition be closed. In the circumstances, contempt petition is dropped. No costs. Notices issued if any is withdrawn."
The letter dated 07.01.2009, quoted in the said order categorically states that the applicants shall be considered in accordance with law and as per their eligibility criteria. Again, when no relief was forthcoming, the applicants preferred the present applications with the following prayer:
"i) to direct the respondents to immediately consider the case of the applicants and provide them suitable employment in pursuance of Annexure-A/8, dated 07.01.2009 and
ii) to grant such other relief/s as this Tribunal deems fit in the circumstances of the case."
After service of notice, the respondents entered appearance, filed a detailed statement of objections and contended that a Notification was published in the Employment News for the week of December, 2010 wherein applicants were invited for the said posts and examination date was fixed as 27.02.2011. The applicants neither applied nor offered to take the examination. Therefore, their case was not considered. After hearing the learned counsel for the parties, the Tribunal was of the view, the interpretation of the undertaking dated 07.01.2009 given by the respondent is not acceptable. The applications were not accepted, to be subjected to the process of selection by way of examinations as prescribed in the Notification. As the applicants processed the requisite educational qualification and the age criteria, as on the date of termination, which is 1994, they should have been appointed as against the regular vacant posts and therefore, they issued directions accordingly. Aggrieved by the said order, the present writ petitions are filed.
The learned counsel for the petitioners, assailing the impugned order contends, the undertaking given to the Court is to the effect that the applicants shall be considered, in accordance with law and as per the eligibility criteria. The order passed by the Tribunal, the specific words used are subject to eligibility under the Rules. Therefore, to a person to become eligible for being appointed to the said post should not only possess educational qualification and age criteria but he must also pass in the examination conducted. When no examination was conducted, he was not eligible to be appointed as against the said post. Therefore, the interpretation placed by the Tribunal is not in accordance with law and he prays that the order be quashed.
Per contra, the learned counsel appearing for the applicants submits that the undertaking given is that the applicants case shall be considered, in accordance with law and as per the eligibility criteria, means that the applicants should satisfy the age criteria as well as the qualification, which they possess. Taking an examination in terms of the Notification was not required and therefore, she submits that the impugned order passed by the Tribunal is correct and no case for interference is made out.
The Supreme Court had an occasion to consider a similar matter in the case of Union of India and others Vs. Dinesh Kumar Saxena and others, . At paragraph No. 18, it has been held as under:
"The facts of the present case are closer to those of Sandeep Kumar v. State of U.P. than the other cases cited earlier. Here also the respondents had been temporarily employed to handle work which was of a limited duration. It was not possible, therefore, to direct the framing of any scheme for their being regularized in the Census Department since there was not enough work of a permanent nature to keep these extra employees busy throughout. We also do not see how these employees, who had been engaged on a contract basis for a limited and fixed duration and on a fixed pay, could be directed to be absorbed in any other department of the Government. Ends of justice will be met if the Directorate of Census Operations, U.P. is directed to consider those respondents, who have worked temporarily in connection with 1981 and/or 1991 census operations and who have been subsequently retrenched, for appointments in any regular vacancies which may arise in the Directorate of Census Operations and which can be filled by direct recruitment, if such employees are otherwise qualified and eligible for these posts. For this purpose, the length of temporary service of such employees in the Directorate of Census Operations should be considered for relaxing the age bar, if any, for such appointment. Suitable rules may be made and conditions laid down in this connection by the appellants. The appellants and/or the Staff Selection Commission may also consider giving weightage to the previous service rendered by such employees in the Census Department and their past service record in the Census Department for the purpose of their selection to the regular posts. It is directed accordingly."
In the aforesaid decision, it is clear that the directions are issued by the Tribunal to consider the case of the applicants, if the applicants possess the requisite educational qualification. In so far as the age criteria is concerned, age relaxation can be done. In addition to that, as these applicants are already worked in the department, some relaxation should be given for the service rendered. But the eligibility criteria of being appointed to those posts is that the applicants should be successful in the written examination, to be conducted, unless they take the written examination and succeed in the examination, it cannot be held to be eligible for being appointed to the said posts. In the instant case, Notification was issued, age relaxation was given. Admittedly, the applicants possess the requisite qualification. All that they were expected to do was to take the written examination and pass the same, certainly their case could have been considered. They are seeking relaxation for the services so called rendered by them and if there are more than the requisite number of vacancies, the obligation of seniority list has to be maintained by the department of all the persons who are working and should have been retrenched and depending on their seniority, their cases should have been considered. In the instant case, as the applicants did not take up the examination, at all, they did not possess the requisite eligibility criteria to be appointed to the said posts. It appears from the material on record, that the applicants have not understood the directions issued on an earlier occasion by the Tribunal in a proper perspective. They seemed to think by virtue of the directions issued earlier, as they possess the requisite qualification and they satisfy the age criteria, they would be automatically appointed against the said posts. The said assumption is wholly misconceived and therefore, unfortunately, though they were given an opportunity, they did not avail the said opportunity and secure an appointment. Therefore, the orders passed by the Tribunal is contrary to law as declared by the Apex Court in the case stated supra and cannot be sustained. Accordingly, it is hereby set aside. However, by the virtue of the interim order granted by this Court, three posts were not filled up. All the three posts are permanent posts. Now, that these proceedings have culminated, by this order.
The parties are at liberty to initiate appropriate steps for filling up those permanent posts by direct recruitment. If and when such Notification is issued, calling for applications, the petitioners are at liberty to apply for the said posts. As the applicants possess the requisite qualification, at any rate, as on the date they were terminated, they satisfy the requirement of qualification. In so far as the age relaxation is concerned, they have been agitating the matter before this Court and therefore, they have no bar in so far as these applicants are concerned, for appearing for examination as they already put in two years of service prior to the retrenchment, in view of the aforesaid judgment of the Apex Court, due weightage has to be given. Thereafter, taking into consideration, their performance and marks obtained in the written examination, their case has to be considered for appointment as against the aforesaid three posts or any additional posts, which may have become vacant, which would be the subject matter of Notification. Hence, we pass the following order:
"(a) The impugned order is hereby set aside.
(b) A direction is issued to the respondents to consider the case of the applicants, if they take the examination in terms of the Notification to be issued and qualify in the said examination for being appointed to the said post of Coder/Multi Tasking, without insisting on age requirement or qualification in respect of these applicants.
(c) Parties to bear their own costs."