$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 18.12.2014
+ W.P. (C) 2208/2011
GNCT OF DELHI AND ORS ..... Petitioners
Through: Ms.Latika Chaudhry, Adv.
versus
ARUN RAWAT & ORS ..... Respondents
Through: Ms.Jyoti Singh, Sr.Advocate with Mr.Sameer Sharma and Ms.Tinu Bajwa, Advs.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI S.RAVINDRA BHAT, J. (OPEN COURT)
1. The narrow question which the petitioner i.e., the Delhi Subordinate Services Selection Board (DSSB) urges, in these proceedings challenging the order of the Central Administrative Tribunal (CAT), Principal Bench in OA No. 3193/09, is whether the respondent-applicant was eligible to apply and secure appointment as Junior Engineer (Civil). It is urged by DSSB that the applicant had exceeded the age limits prescribed.
2. Briefly the facts are that the applicant was selected as an LDC through the Staff Selection Commission in the Employees Provident Fund Organisation, which he joined on 09.06.2003. He continued in that position till 24.02.2005. He was selected as an LDC in the Ministry of Defence which he joined on the later date i.e., 25.02.2005. He continued with the Central Government till 30.03.2007. In the interregnum, he had W.P.(C)2208-11 Page 1 applied to the post of JE (Works) in the Railways and also with the Uttaranchal Peyjal Sansadhan Vikas Evam Nirman Nigam (in short 'UPN') and was selected. He was selected and worked with the Western Railways for the period 03.04.2007 to 21.10.2007. He later was appointed in the UPN, as Junior Engineer (Civil) on 03.10.2007. In this background, he applied for the post of Junior Engineer (Civil) in the MCD in July, 2008. At that time he was 30 years and the norms which prescribe the age limit mandated that the candidate ought to be 27 years, but, in exceptions as in the case of serving government servants and employees of Municipal Corporation, 5 years relaxation was permissible. The said rule notified in the advertisement reads as under:-
"(3)JUNIOR ENGINEER(CIVIL) IN MUNICIPAL CORPORATION OF DELHI. POST CODE - 018/08 Number of Vacancies : 268 (UR-118, OBC-86, SC-42, ST-22 (including 06 vacancies reserved for PH and 01 for Ex.Servicemen) Essential Qualifications: (a) Degree in Civil Engineering from a recognized University or equivalent. OR
(b)(i) Diploma in Civil Engineering from a recognized institution or equivalent; and (ii) 2 years professional experience as Civil Engineer, counted from the date of completion of the qualifying diploma examination.
Pay Scale: 5000-8000/- ; Group - „C‟; Probation Period; Two years; Age Limit : Not exceeding 27 years (Relaxable for SC/ST-5 years, OBC-3 years, PH-10 years, PH & SC/ST-15 years, PH & OBC-13 years & Relaxable for Govt. servants and employees of Municipal corporation of Delhi upto 5 years in accordance with the instructions or orders issued by the Central Govt.) (R.NO.A.O. (Estt.)-II/CED-II/2008/4343, DATED: 26.02.2008)"
(emphasis added)
3. The applicant was selected but was not formally appointed, and W.P.(C)2208-11 Page 2 therefore approached the CAT, which, after considering the materials on record and after interpreting the rules, held that the respondent-applicant was eligible, and directed that he will be given appointment.
4. DSSB argues that the impugned order of the CAT is flawed. It is highlighted that the employee i.e., the applicant never joined the Ministry of Defence and actually worked for 6-7 months with Railways and, therefore, all the while, maintained a lien with Ministry of Defence, where he did not in fact work. Counsel also emphasised that the applicant in fact worked with the UPN, and in these circumstances the maintenance of lien could not be construed as 'employment' or service with the Government or of its department, so as to qualify for the age relaxation exception. The CAT in its impugned order reasoned as follows:-
"10. Age relaxation as per Govt. of India instructions, which is fortified into the statutory rules, the upper age relaxation is no more res integra and are followed by MCD, as promulgated by the Govt. The appointment of the applicant in Railways was permanent and he was holding his lien there and had joined UPN with memorandum of appointment dated 3.7.2010 clearly states that the appointment is temporary and the applicant would be on probation for two years. As per FR 13 a government servant who had acquired lien on a post holds the lien while holding a temporary post. In the light of the above, as the applicant was appointed on a temporary post in UPN was still holding his lien with the Railways. Holding a civil post has to be treated as government servant and relaxation of age cannot be denied to him on that basis. Moreover, MCD has sent a clarification to the respondent-DSSB on 19.2.2010 where it is stated that as the rule provides admissibility of benefit of age relaxation to the candidates who have resigned from Government service for joining autonomous bodies, lien in Government post is not available with the Board. By quoting the example of applicant it is stated that the applicant resigned on 30.3.2007 to join Ministry of Railways, yet the fact that he was having lien for two years on temporary post, even assuming with the Railways, his claim being a government W.P.(C)2208-11 Page 3 servant cannot be brushed aside.
11. It is pertinent to note that while Ministry of Defence accepted the resignation of the applicant on 30.3.2007 his lien for two years was maintained by letter dated 27.5.2007, appended at page 55 of the paper book. In the above view of the matter, as per DoP&T OM No.8/14/70-Estt.(C) dated 6.3.1974 even a temporary or quasi-permanent Central Government employee who tenders resignation, his lien is maintained, which is maintained by the Ministry of Defence, entitles applicant to claim the status of a government servant to seek age relaxation."
5. Undeniably, the respondent at the time of his selection was about 30 years and 11 days. It is a matter of record that, for a considerable period, he worked with the Employees Provident Fund Organisation and was later selected by the Central Government, Ministry of Defence. As to whether he actually served the latter Ministry or the Western Railways or merely maintained the lien and whether the maintenance of his lien can be construed as employment is not an enquiry that the DSSB, in the opinion of this Court, ought to have engaged itself with. The rules pertaining to maintenance of lien, to enable a public employee to work in another organisation, have been prescribed. It is open for the public employer to deploy him or her on deputation basis or create some other temporary arrangement, because possibly even the public employee may chose to join some other organisation with the objective of permanent absorption, but later decide to revert back to his or her parent organisation. In these circumstances, it cannot be said that the applicant was not a government employee, thus disentitled to the age relaxation norms in the exception carved out by the relevant eligibility condition. We also note that this is not the stand of the MCD or the Government of NCT Delhi or even the Union Government. In these circumstances, the impugned order of the W.P.(C)2208-11 Page 4 CAT is hereby affirmed. The writ petition is dismissed.
6. The respondent no.2 i.e., MCD is hereby directed to ensure that the appointment letter of the applicant is issued and he is permitted to report for duties within four weeks from today in compliance with the impugned order of the CAT. All consequential benefits including seniority, notional fixation in the pay, annual grant of increments also have to follow and separate orders be passed within the same period. The applicant will however not be entitled to arrears.
Order dasti.
S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) DECEMBER 18, 2014 mb W.P.(C)2208-11 Page 5