Ms. Monika Chandel vs Upsc & Others
2009 Latest Caselaw 4018 Del

*                  HIGH COURT OF DELHI : NEW DELHI

               Judgment reserved on: September 18, 2009
                Judgment delivered on: October 06, 2009

+                       W.P. (C) No.1353/2006 and
                           C.M. No. 1176/2006

%      Ms. Monika Chandel                      ...   Petitioner
                 Through:      Ms. Aishwarya Bhati and Ms. Sweta
                               Rani, Advocates

                                 versus

       UPSC & Others                            ...  Respondents
                Through:       Ms. Barkha Babbar, Advocate for Union
                               of India
                               Mr. Naresh Kaushik, Ms. Aditi Gupta
                               and Ms. Amita K. Chaudhary,
                               Advocates for UPSC.
                               Ms. S. Chatterjee, Respondent No. 5 in
                               person.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.     Whether the Reporters of local
       papers may be allowed to see
       the judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be
       reported in the Digest?

SUNIL GAUR, J.

1. In the year 2004, in pursuance to the advertisement (Annexure

P-4) Petitioner had applied for selection to the post of Master in

English in the Respondent - College. At that time, Petitioner was

working on ad-hoc basis on the post of Master in English, which is a

Gazetted Group-B post with the Respondent - College. Vide letter of

W.P. (C) No.1353/2006 Page 1 22nd December, 2005, (Annexure P-6), Petitioner was called upon to

appear for the interview for the said post and to produce her

experience certificate, etc. Petitioner had claimed age relaxation on

the basis of 'No Objection Certificate' of 6th August, 2004, (Annexure

P-5), which disclosed that the Petitioner was working as Master in

English on ad-hoc basis since April 2001 with break in service in each

year.

2. When the Petitioner had appeared for interview on 23rd

January, 2006, she was purportedly told that she was not

Government Employee as per the new Rules of Department of

Personnel Training (hereinafter referred to as 'DoPT'). According to

the Petitioner, Respondent - Commission was not justified in refusing

to interview the Petitioner on the basis of Communications of 31st

December, 2002 (inadvertently referred to as of the year '2005') and

of 5th December, 2005 of 'DoPT' (Annexure P-7). It is pointed out that

communication of 5th December, 2005 indicates that it has to be

uniformly applied to the regular as well as ad-hoc employees.

According to the Petitioner, exclusion of ad-hoc government

employees for the grant of age relaxation on the basis of

Communication (Annexure P-7) is not only illegal but is also arbitrary,

as age relaxation has been already granted to one Mr. Satyendra

Mishra, who had worked on ad-hoc basis.

3. The relief sought in this petition is of quashing of the

Communication (Annexure P-7) denying benefit of age relaxation to W.P. (C) No.1353/2006 Page 2 the Petitioner by arbitrarily drawing a line of distinction between the

ad-hoc and regular employees. The alternate relief sought is of

regularization of the Petitioner as Master in English in the

Respondent - College.

4. The response of Union Public Service Commission (UPSC) to

this petition is as under:-

"Sh. Satinder Mishra was working as Master in Chemistry on ad-hoc basis and pending clarification from the Department of Personnel and Training whether ad-hoc employees are also to be extended the benefit of age relaxation as permissible to Government servants or not, he was called for interview conditionally. As the clarification received from DOP&T had not reached the officials conducting the inter views as on the date of interview (i.e. 22.12.2005) in that case, his conditional candidature was not cleared at the time of interview and he was interviewed conditionally subject to receipt of the requisite clarification from the Department of Personnel and Training. However, the DOP&T clarification dated 5th/7th December, 2005 that "Only regular Govt. employees are eligible for benefit of age relaxation ..." had been received by the officers‟ associated with the interview before 23.1.2006 when Ms. Monika Chandel reported for interview and accordingly, she was not interviewed. The conditional candidature of Shri Satyendra Mishra has also since been cancelled in view of the clarification of the DOP&T dated 5/7.12.2005. Copy of the „DoPT‟ O.M. order is annexed as Annexure-„A‟."

5. The Government response to this petition is as follows:-

W.P. (C) No.1353/2006 Page 3 "The O.M. dated 10.4.1969 only points out that though the age relaxation considered by the UPSC (in terms of the clause put by it in the notice of the advertisement) is strictly speaking, intended for persons who are regular Government servants, this Office Memorandum observed that it had not been practical for the Commission to make a distinction between a person who holds the appointment on ad-hoc basis and other who holds it on regular basis, and, therefore the clause "age limit for Government servant has thus to be applied uniformly in all cases of Government servants whether they hold appointments on ad-hoc basis or otherwise". This only implies that in view of the practical difficulties, this clause regarding age relaxation for the Government servants has thus to be applied (by UPSC) in all cases irrespective of whether they were regular employees or ad-hoc employees. The absence of the word "by UPSC" in this Office Memorandum is creating an impression that it contains a policy direction of DOP&T conveying age relaxation for all employees (regular as well as ad-hoc) for all cases of direct recruitments, which is not the case as would be seen from the background explained. What the Office Memorandum impressed upon the Ministries and Departments was that as the UPSC is unable to make a distinction, the various Ministries/Departments while making ad-hoc appointment should ensure:

(a) That a person appointed on ad-hoc basis conforms to the age relaxation prescribed under the Recruitment Rules at the time of ad-hoc appointment (so that UPSC does not extend the benefit of age relaxation to those who were over aged at the time of ad-hoc appointment itself) and

W.P. (C) No.1353/2006 Page 4

(b) That he should be eligible in terms of educational qualification and experience, (so that there is no situation where the ad-hoc appointee to a post is not even considered eligible for regular selection)."

6. In the rejoinder filed by the Petitioner, it was disclosed that the

similarly placed ad-hoc employees, i.e., Mr. Prashant Kumar and

Mr.Brijesh Chauhan were granted age relaxation and were appointed

as Masters in the Respondent - College on regular basis. To meet the

aforesaid stand, Respondent - UPSC has filed a short affidavit

stating that these two masters/teachers Prashant Kumar and Brijesh

Kumar had produced experience certificate showing that they had

worked as Government servant, whereas the certificate produced by

the Petitioner indicated that she had worked as Government servant

on ad-hoc basis. The selected candidate was impleaded as

Respondent No. 5 in this petition but she has not chosen to file any

response to it.

7. Counsels for the parties have been heard and the record of this

case has been perused.

8. Much reliance has been placed by Petitioner's counsel upon an

extract from Communication (Annexure P-7), which reads as under:-

"Perhaps, this was a standard clause in all

advertisements issued by the UPSC irrespective of

whether the Recruitment Rules provided for age

relaxation or not. In such cases, where the advertisement

W.P. (C) No.1353/2006 Page 5 was issued by UPSC, the Commission found it difficult at

scrutiny stage to differentiate between regular

Government servants and ad-hoc employees. Therefore,

as UPSC was considering age relaxation for ad-hoc

appointees also, if became imperative to ensure that such

ad hoc appointees were within the prescribed age limit at

the time of ad hoc appointment and were also eligible to

hold the post in all respects."

9. The contention of the Petitioner is that the Petitioner was

appointed on ad-hoc basis vide Appointment Letter (Annexure P-1)

and Petitioner's ad-hoc appointment was published in a Gazette

(Annexure P-2) and it was as good as a regular appointment and

therefore, the Petitioner, in terms of the above extracted

Communication of 5th December, 2005, is eligible for age relaxation.

Counsel for the Petitioner refers to decisions reported in (2008) 2

SCC 717; (2006) 4 SCC 1; (2005) 11 SCC 304; (1998) 8 SCC 583;

(1998) 9 SCC 81; (2006) 11 SCC 731; AIR 1996 SC 1529; (2006) 2

SCC 482, to claim age relaxation on the basis of experience gained

while working on ad-hoc basis. The submission advanced is that the

weightage of ad-hoc service has to be granted by relaxing the age, in

the matter of regular appointments.

10. It is true that the objective behind granting the benefit of age

relaxation is to bring experience on a level playing field by giving

preference to Government employees, who have been in service, if W.P. (C) No.1353/2006 Page 6 they are otherwise found fit (eligible), so that their experience

could be used for betterment of the institution. The difficulty

experienced by Union Public Service Commission in distinguishing

between persons, who hold appointment on ad-hoc basis and others

who hold it on regular basis, has been highlighted in the

Communication of 5th December, 2005 (Annexure P-7) with a view to

highlight the need of making ad-hoc appointments within the

prescribed age limits and of eligible persons.

11. Apex Court in "State of Haryana vs. Charanjit Singh & Others",

JT 2005 (12) 475, had negated the claim for age relaxation by

equating ad-hoc/contractual appointment with regular appointment by

noting that the ad-hoc/contractual employees is not governed by the

relevant service rules and do not enjoy the privileges of the regular

employees and cannot be subjected to the minor penalties which can

be imposed upon regular government employee and above all, the

appointment of ad-hoc employee is 'de hors' the Rules.

12. In the light of the aforesaid, what is required to be seen is

whether the appointment of the Petitioner on ad-hoc basis was in

accordance with the Rules or not. Respondent - College has its own

Rules, which are duly notified on 3rd March, 2004, and these rules are

called the 'Rashtriya Indian Military College (Master) Recruitment

Rules 2004'. Advertisement of July - August, 2004 (Annexure P-4) is

in terms with these Rules. The Schedule appended to the aforesaid

Rules of 2004 as well as advertisement (Annexure P-4) prescribes W.P. (C) No.1353/2006 Page 7 that three years teaching experience in a recognized educational

institution is an essential qualification. Petitioner's ad-hoc

appointment vide letter of November, 2000 (Annexure P-1) was in

pursuance to the advertisement of May, 2000 in the Employment

News. The record produced by the Respondent - College reveals that

the advertisement of May, 2000 for ad-hoc appointments, provided

for teaching experience of one year only as an essential eligibility

condition. Though, Petitioner's ad-hoc appointment was not in

consonance with the aforesaid Rules of 2004, which required three

years teaching experience, but that would not make any difference

because Petitioner's ad-hoc appointment has to be in consonance

with the Respondent - College Recruitment Rules of 1986, which

were applicable then, i.e., in the year 2000. Since, Respondent -

College has not placed on record the erstwhile Recruitment Rules of

1986, therefore it cannot be said that Petitioner's appointment was

„de hors‟ the Rules.

13. Now reverting back to basic issue of entitlement of the

Petitioner to age relaxation by taking into account the ad-hoc service,

it is primarily based upon a passing reference in Communication

(Annexure P-7) by the Government to Union Public Service

Commission regarding difficulty in differentiating between regular and

ad-hoc employees at the scrutiny stage. Union Public Service

Commission in its counter affidavit has categorically stated that after

'DoPT' clarification (Annexure P-7), the candidature of similarly

W.P. (C) No.1353/2006 Page 8 placed person Mr. Satyendra Mishra has been cancelled. Short

affidavit of Respondent - UPSC clarifies that Prashant Kumar and

Brijesh Chauhan were given age relaxation because their Experience

Certificate of January and February, 1999, simply stated that they

had the required experience as a Government servant. Since it was

not recorded in the Experience Certificate of Prashant Kumar and

Brijesh Chauhan that they were Government servants on ad-hoc

basis, therefore, they were granted the benefit of age relaxation.

Simply because benefit of age relaxation stand granted to Prashant

Kumar and Brijesh Chauhan by inadvertent lapse or bona fide

omission, it would not entitle the Petitioner to have the benefit of the

same.

14. Impugned Communication (Annexure P-7) is between 'DoPT'

and the Union Public Service Commission and by relying upon OMs

of 20th July, 1976 (Annexure R-2) and OM of 9th April 1981 (Annexure

R-3), it has been stated that the regular Government employees are

eligible for benefit of age relaxation. Although, OM of 9th April, 1981

(Annexure R-3) and of 24th October, 1985 (Annexure R-4) holds the

field but much reliance has been placed by counsel for the Petitioner

on the OM of 10th April 1969 (Annexure R-1) to claim the relaxation of

age limit, by asserting that it has to be applied uniformly to ad-hoc as

well as regular employees. It is evident from OM (Annexure R-4) that

the earlier instructions issued by Office Memorandum have been

reviewed and neither in the OM of 1981 (Annexure R-3) nor in OM of

W.P. (C) No.1353/2006 Page 9 1985 (Annexure R-4), it has been said that the clause regard age

relaxation would apply to ad-hoc employees also.

15. Furthermore, there is no challenge to the legality of OMs

Annexure R-3 and Annexure R-4, which are applicable; therefore,

challenge to the Communication (Annexure P-7) would not suffice.

16. The stand of Department of Personnel and Training ('DoPT')

regarding office memorandums, referred to above, speaks volume

and is as under:-

"It is further submitted that DP&AR Office Memorandum dated 10.4.1969 (copy annexed as Annexure R-1 to the counter affidavit) does not contain the policy decision of Government for allowing age relaxation to ad-hoc employees. The benefit of age relaxation as general provision for all Central Government employees was introduced only in 1976 vide Office Memorandum dated 20.7.1976 (copy annexed as Annexure R-2 to the counter affidavit). Prior to this, UPSC was indicating in the Notifications for examinations a provision for age relaxation for Government servants, this provision did not flow from any general policy provision for age relaxation issued by Government (DOP&T). This Office Memorandum dated 10.4.1969 was only advisory in the context of the UPSC‟s Notifications providing for age relaxation to Government servants and the Commission finding it difficult in making a distinction between a person holding appointment on ad-hoc basis and another holding a post on regular basis. In this perspective, this Office Memorandum contained

W.P. (C) No.1353/2006 Page 10 certain guidelines for the Ministries to be borne in mind while making ad-hoc appointments. Consequent on issue of DP&AR Office Memorandum dated 20.7.1976, circulating the policy decision on age relaxation being admissible to Central Government employees, subject to fulfillment of certain conditions, all cases of direct recruitment including appointments made by UPSC, were to be regulated by the provisions of these instructions in the matter of grant of age relaxation (except those posts where special provisions of age relaxation were/are prescribed in the Recruitment Rules).

This Department‟s letter dated 5.12.2005 only clarified/pointed out to the UPSC the above perspective of DP&AR Office Memorandum dated 10.4.1969 and also clarified the scope of applicability of the provisions of age relaxation contained in DP&AR policy Office Memorandum dated 20.7.1976 and the subsequent Office Memorandum dated 9th April 1981 (copies of Office Memorandum dated 20.7.1976 and Office Memorandum dated 9.4.1981 is annexed as Annexure R-2 and R-3 respectively to the counter affidavit). The Respondent department‟s earlier letter dated 31.12.2002 to UPSC has also clarified the implications of these policy circulars on age relaxation and has stated that the benefit is admissible to Central Government employees appointed on regular basis. As these letters of 2002 and 2005 contain clarifications on the policy circulars on age relaxation and do not consist of or convey a fresh decision taken in the matter, there is no question of giving retrospective effect to these letters, as contended by the Petitioner."

W.P. (C) No.1353/2006 Page 11

17. During the course of the argument, counsel for the Petitioner

had given up the prayer for direction to the Respondent - College to

regularize the Petitioner on the post of Master in English. Challenge

to the communication (Annexure P-7) without an effective challenge

to the OMs, Annexure R-3 and Annexure R-4, is meaningless.

Moreover, Petitioner fails to show that the required experience for

regular appointment to the post of Master in English in the year in

question, i.e., 2000 was one year only. This was required to be so

done because the minimum teaching experience required vide

advertisement (Annexure P-4) was three years for regular

appointment.

18. In view of the aforesaid, this petition challenging

Communication (Annexure P-7) without questioning its basis, i.e.,

Office Memorandums (Annexure R-3 and Annexure R-4) fails and is

hereby dismissed. Pending application is disposed of as infructuous.

19. It is made clear that it is still open to the Petitioner to challenge

the Office Memorandum (Annexure R-3 and Annexure R-4) and

anything said herein shall not be construed as opinion on validity of

these Office Memorandums.

20. No costs.

Sunil Gaur, J.

October 06, 2009
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W.P. (C) No.1353/2006                                                      Page 12