Delhi High Court
Suneel Tyagi vs Union Of India And Ors. on 20 August, 2019
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20.08.2019
+ W.P.(C) 3946/2018 & CM APPL. 15605/2018
SUNEEL TYAGI ..... Petitioner
Through Mr.Vishwendra Verma, Adv.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through Mr.Gigi C. George, Adv. with
Mr.R.M. Tripathi, Adv. for R-1, 2 &
4.
Mr.Naveen Chawla, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
1. Vide the present application, the petitioner seeks direction thereby
setting aside the order No. 3-IWAI/Estt/3/2015/Part dated 23.03.2018 issued
by the respondent no. 3 and to treat the vacancy reserved for persons with
locomotor disability. Further seeks direction thereby directing the
respondents nos.1 to 3 to consider the petitioner for appointment to the post
of Assistant Hydrographic Surveyor in accordance with the terms and
conditions contained in the advertisement published by respondent no.3 vide
their advertisement dated 04.10.2016 and if selected, appoint him to the
post.
2. Also seeks direction to respondent no.3 to withdraw their
advertisement published on 13.10.2017 and not to take any action for filling
up of the post in question.
3. The case of the petitioner is that the respondent no.3 invited
applications for filling up of three posts of Assistant Hydrographic Surveyor
by direct recruitment vide their indicative advertisement published in the
New Delhi Edition of the Hindustan Times Newspaper dated 04.10.2016.
Out of the three vacancies, one was reserved for SCs, one for OBCs and one
vacancy was Unreserved. The said post of Assistant Hydrographic Surveyor
is a Group A post in level 10 of the pay matrix of 7th Pay Commission. The
upper age limit prescribed for the post in question, according to the
advertisement published on 04.10.2016 was 35 years as on the closing date
of receipt of applications. The petitioner is an Ex-serviceman who retired on
13.07.1996 from the Indian Navy after putting up of a total service of more
than 15 years. He falls within the definition of Ex-Serviceman and is entitled
to all benefits available to the Ex-Serviceman.
4. Counsel for the petitioner submits that Rule 5 of the Ex-Serviceman
(Re-employment in Central Civil Services and Posts) Rules, 1979 as
amended by the Ex-Serviceman (Re-employment in Central Civil Services
and Posts) Amendment Rules, 2012 provides that for appointment to any
vacancy in Group A and Group B services or posts filled by direct
recruitment otherwise than on the results of an Open All India Competitive
Examination, the upper age limit shall be relaxed by the length of military
service increased by three years in the case of ex-servicemen and
commissioned officers including Emergency Commissioner Officers or
Short Service Commissioned Officers.
5. Counsel further submitted that the petitioner is a person with
disability and is orthopaedically handicapped. The post in question is an
identified post for the persons with disability suffering from orthopaedically
handicapped. The respondents are bound to give reservation to persons with
disabilities in accordance with the persons with disabilities Act of 1995 and
the Rights of the Persons with Disabilities Act, 2016. Even if any vacancy
has not been earmarked reserved for persons with disabilities, the
respondents are bound to give age relaxation to orthopaedically handicapped
persons as prescribed and consider them for appointment against the post
without making any discrimination on the ground of disability.
6. Counsel for the petitioner further submits that the petitioner rendered
55 years service in force, thus, he is entitled 5 years age relaxation,
therefore, the respondents are bound to consider the candidature of the
petitioner upto 55 years. Whereas the respondents have rejected his
candidature on the ground that upper age limit for the Ex-servicemen and
physically handicapped is 45 years.
7. On the other hand, learned counsel appearing on behalf of the
respondents submits that the upper age limit for the said post was 35 years
as on the date of closing of receipt of application. The said post was again
re-advertised for two vacancies on 13.10.2017. One position was for
general category and another position for the OBC's. In the second
advertisement, the age limit was reduced to 30 years as on the date of
closing of receipt of application, which was subsequently revised to 35
years, with uploading of Corrigendum No.2 dated 28.11.2017, in the website
of IWAI. The petitioner had applied for the position for general category for
which the age limit was 35 years as per advertisement dated 13.10.2017.
8. Learned counsel for the respondents further submits that the case of
the petitioner is that he was eligible for the said general category post and
respondent no. 3 ought to have short listed him as he qualified the required
age for the said position as per Rule 5 of Ex-servicemen (Re-employment in
Central Civil Services and Post) Rules 1979 as amended in October 2012
read with DoPT Office Memorandum no.15012/2/2010-ESTT (D) dated
27.03.2012. Accordingly, the petitioner is seeking combined benefit under
two notifications and is clubbing both exemptions in order to get within the
capping of the age limit prescribed by respondent no. 3 for the said position.
Learned counsel submits that clubbing is fundamentally wrong and the
petitioner cannot take benefit of two different categories which are
specifically for a particular category of persons.
9. The petitioner is taking benefit of Rule 5(b) of the Ex-servicemen
(Re-employment in Central Civil Services and Post) Rules 1979 as amended
in October 2012, which reads as under:
"for appointment to any vacancy in group A and group B
services or posts filed by direct recruitment otherwise
than on the results of an Open All India Competitive
Examination, the upper age limit shall be relaxed by the
length of military service increased by 3 years in the case
of ex-servicemen and commissioned officers including
emergency commissioned officers or short service
commissioned officers."
10. The petitioner claims to have put in 15 years of service in the Indian
Navy and thereafter retired from the services. Thus, the petitioner is seeking
18 years of benefit under Rule 5(b) of the Ex-servicemen Rules 1979 as
amended in October 2012. The petitioner further claims benefit of age
relaxation as provided in Clause 3 in DOPT Office Memorandum no.
15012/2/2010-ESTT (D) dated 27.03.2012, which is reproduced as under:
Persons with In case of direct 5 years
Disabilities OM recruitment to Group A
No.36035/3/2004-ESTT and Group B where
(res) dated 29.12.2005 recruitment is made
SC/ST persons with otherwise than through 10 years
disabilities open competitive
OBC persons with examination. 8 years
disabilities
11. The petitioner seeks 5 years further benefit under Clause 3 which
gives age relaxation to persons with disabilities. Accordingly, the petitioner
is claiming a total age relaxation of 23 years i.e., 18 years under Rule 5(b) of
the Ex-servicemen Rules (Re-employment in Central Civil Services and
Post), 1979 as amended in October 2012 and further additional 5 years under
Clause 3 of DOPT Office Memorandum dated 27.03.2012.
12. The petitioner claims to be born on 01.01.1963. The petitioner thus
claims that the upper age limit in his case was 58 years as on 03.11.2016 for
the post advertised on 04.10.2016 and that the petitioner was 53 years 10
months and 2 days as on 03.11.2016. Thus he was fully qualified for the said
general post of Assistant Hydrographic Surveyor.
On perusal of the impugned order passed by respondent no.3, the Ex-
servicemen Rules, 1979 as amended in October 2012 and also DOPT Office
Memorandum dated 27.03.2012, it is revealed that the said office
memorandum has a specific clause being Clause 9 for disabled defence
personnel. The said clause 9 reads as under:
9. Disabled Defence Services a) Group C & 45 years (50
personnel erstwhile D years of SC/ST)
O.M. No.14/42/65-Estt. (D) posts filled
dated 29.03.1966 and O.M. through
No.13/35/71-Estt. (C) dated employment
24.12.1971. exchange
b) Group A & B 45 years (50
posts filled years of SC/ST)
otherwise than
through
Competitive
Examination by
UPSC
O.M.No. 39016/5/1981-Estt. c) all posts filled 3 years (8 Years
(C) dated 21.02.1981 by Competitive for SC/ST)
Examination subject to the
condition that
they would not
be allowed to
avail of a larger
number of
chances in
respect of
recruitment to a
service, or group
of services, than
the maximum
number of
chances
permissible to
any general
candidate under
the age limit.
13. The said OM clearly provided that for Disabled Defence Services
personnel who have applied for Group A and B Posts which are filled
otherwise than through Competitive Examination by UPSC, the age
relaxation would be 45 years. No further age relaxation has been provided
under the said clause. Thus, while taking the said clause 9 into
consideration and also considering the OM dated 29.03.1966, the
respondents came to a conclusion that the petitioner was 8 years and 10
months above the prescribed age limit of 35 years. The age of the petitioner
on the closing date of application was 53 years and 10 months.
14. Since there was a specific category mentioned for Disabled Defence
Personnel, in clause 9, in the DOPT Office Memorandum dated 27.03.2012,
there was no reason for the petitioner for clubbing the age relaxations
mentioned under two separate provisions of law. Thus, the petitioner is
trying to take advantage of the two separate provisions, dehors of the fact
that the legislation was conscious even for the Disabled Defence Personnel,
that it had created a special category for age relaxation for them.
Therefore, I note that at paras 4, 6 & 11 while referring to OM dated
29.03.1966, the same was erroneously typed as OM dated 29.03.2016.
However, the correct position of law under the clause 9 of DOPT
notification vide Office Memorandum dated 27.03.2012, the petitioner was
found to be over aged , for the said position which was advertised by
respondent No.3.
In view of above facts, I find no merit in the present petition and the
same is, accordingly, dismissed.
15. Pending application stands disposed of.
(SURESH KUMAR KAIT)
JUDGE
AUGUST 20, 2019
ab
