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2024 DAILYLAW 2302 (CAL)

Union Of India v. Prodip Kumar Das

2024-06-19

Ajoy Kumar Mukherjee, Sabyasachi Bhattacharyya

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JUDGMENT : SABYASACHI BHATTACHARYYA, J. 1. The petitioner-authorities have challenged an order of the Central Administrative Tribunal whereby the Tribunal set aside an order dated February 14, 2021 issued by the Director of Health Services, Andaman and Nicobar Administration whereby the petitioners refused to give double age relaxation to the respondent, both as a departmental candidate with 3 years continuous service in the Central Government and as a candidate falling under the Other Backward Classes (OBCs). 2. The facts, in a nutshell, are that the respondent is working as Health Worker (Male). The Health Department of the Andaman and Nicobar Administration had published a revised vacancy notice on June 21, 2019 and a newspaper publication was made to that effect on June 23, 2019. The age limit for candidates were stipulated therein. The said notice provided that for the post of Health Educator, for which the respondent applied, the age relaxation shall be allowed in accordance with the instructions issued by the Government of India and the Andaman and Nicobar Administration from time to time. 3. The governing provisions as to relaxation of age was the Office Memorandum dated March 27, 2019 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training), bearing No.15012/2/2010-Estt.(D). In the said O.M., for the category “Other Backward Classes”, the extent of age concession was provided as 3 years under Sl.No.2 whereas under Sl.No.12, age relaxation in case of Departmental Candidates with 3 years’ continuous service in Central Government for appointment to Group-A and Group-B posts, under which the petitioner comes, filled through the UPSC (other than those filled on the basis of comparative examination) and posts which are exempted from the purview of UPSC (where the recruitment is made by the organisations themselves), the age relaxation was 5 years. Such relaxation was for posts which are in the same line or allied cadres and where a relationship could be established that the service rendered in a particular post will be useful for efficient discharge of the duties of post, which criterion otherwise applies to the respondent. 4. Such relaxation was for posts which are in the same line or allied cadres and where a relationship could be established that the service rendered in a particular post will be useful for efficient discharge of the duties of post, which criterion otherwise applies to the respondent. 4. There is no dispute between the parties as to the respondent being otherwise eligible for the said post, except the fact that the respondent was over-aged at the time when he applied for such post in pursuance of the said vacancy notice, even after grant of 5 years’ extension under the category of Department Candidate having 3 years’ experience. However, if an additional 3 years’ extension was given under the head of OBC as well, he would come within the eligible age. 5. The respondent claims that he is entitled to a combination of the age relaxation available to him under the OBC category and under the category of department candidate with 3 years’ continuous service in Central Government. Under the former, the respondent is entitled to 3 years’ age relaxation whereas under the latter, to 5 years age’ relaxation. 6. The petitioner-authorities, however, by the order impugned before the Tribunal, chose to grant 5 years relaxation to the respondent under the category of departmental candidate with 3 years continuous service but refrained from granting the benefit of further 3 years under the OBC category. 7. As per the interpretation of the petitioner-authorities, the concerned OM does not permit a combination of any two categories, unless specifically provided for. 8. The respondent preferred a challenge against such decision before the Tribunal and succeeded, against which the present challenge has been preferred by the petitioner-authorities. 9. Learned counsel for the petitioners argues that the OM governing the vacancy in question does not permit of clubbing of age relaxation granted under two separate categories. In the absence of any such provision in the O.M, it is argued that the respondent is not entitled to such benefit. It is argued that the learned Tribunal proceeded on the basis that there is no specific bar to grant of concession under more than one category whereas there is no provision in the O.M. dated March 27, 2012 to club such concessions under two heads. It is argued that the learned Tribunal proceeded on the basis that there is no specific bar to grant of concession under more than one category whereas there is no provision in the O.M. dated March 27, 2012 to club such concessions under two heads. In the absence of any such provision, it is argued that the Tribunal proceeded on the basis of a patent error of law in granting such relaxation not provided under the O.M to the respondent. 10. It is contended that the provisions of other recruitment notices and advertisements relied on by the respondent before the Tribunal do not apply in the present case. It is argued that a particular case has to be decided on the facts of the said case and provisions of other vacancy notices cannot be looked into for interpreting the respondent’s case. 11. Controverting such submission, learned counsel for the respondent argues that in the absence of any specific bar, the age relaxations ought to be construed in favour of the respondent, as rightly done by the Tribunal. It is contended that there is no reason as to why benefits of both the categories - OBC and Central Government departmental candidate having 3 years’ continuous service, should not be given to the respondent since the respondent qualifies under both the said categories. Depriving the respondent from one of the exemptions would be contrary to the concerned OM, in the absence of any specific bar to do so. 12. On a careful perusal of the Office Memorandum dated March 27, 2012, which governs the present vacancy, it transpires that the same is a compendium of several notifications and office memoranda operating in the field. The O.M. dated March 27, 2012 is, thus, a consolidating memorandum wherein all the existing memoranda and notifications governing the field have been compounded. 13. Notably, for the post of Health Educator, for which the respondent applied, the vacancy notice provides that the age relaxation shall be given in terms of the provisions made in that regard by the Central Government and Andaman and Nicobar Administration from time to time. 14. The respondent places reliance on certain provisions regarding age relaxation in cases of other employments, having no connection with the present vacancy. 14. The respondent places reliance on certain provisions regarding age relaxation in cases of other employments, having no connection with the present vacancy. Thus, the provisions of the said employments, which respectively governed such vacancies, cannot have any manner of bearing on the present case, nor can any such provision be construed as an external aid to interpret the provisions of the present O.M. which operates in its independent field. 15. For example, in the Recruitment Notice dated November 7, 2020 issued by the Indian Council for Medical Research, in Clause 7 relating to age relaxation, it has been specifically provided in Item 2 that for Central Government civilian employees (OBC) who have rendered not less than 3 years regular and continuous service as on the closing date for receipt of application, the age relaxation for Group-A and Group – B posts would be 8 (5+3) years. 16. Again, in Advertisement No. 07/2021 issued by the Union Public Service Commission inviting online recruitment application for recruitment of certain other posts than the present one, there was a specific clause which provided that the upper age limit is relaxable for Central/ UT Governments up to 5 years as per instruction issued by the Government of India from time to time. The said statement is immediately followed by the sentence that this implies that Schedule Caste/Schedule Tribe category candidates would get maximum 10 years’ age relaxation including 5 years age relaxation meant for the respective categories and similarly, OBC candidates would get maximum relaxation up to 8 years including 3 years age relaxation meant for OBC category. 17. Thus, by specific enumeration in both the said cases relied on by the respondent, provisions were made for compounding age relaxations under different categories. 18. As opposed to the said case, however, the Office Memorandum dated March 27, 2012 did not provide for any such compounding insofar as categories of OBC under Item 2 and departmental candidates with 3 years continuous service in Central Government under Item 12 are concerned. 19. The logic on which the Tribunal granted such remedy to the respondent, being that there was no specific bar to do so, cannot be accepted for the simple reason that a concession is not a matter of right of a proposed employee or an applicant for a vacancy. 19. The logic on which the Tribunal granted such remedy to the respondent, being that there was no specific bar to do so, cannot be accepted for the simple reason that a concession is not a matter of right of a proposed employee or an applicant for a vacancy. It is entirely the discretion of the employer whether or not to give relaxation of age and, if so, to what extent. Such relaxation can be granted selectively in respect of different categories and the employee cannot have a say in the same, unless there is discrimination between applicants belonging to the same category and/or standing on similar footing. 20. OBC and department candidates with 3 years continuous service in Central Government are two completely separate and distinct classes for whom different relaxation periods have been stipulated in the instant case. 21. In the absence of anything in the Office Memorandum to indicate that there was a provision for compounding relaxations under two different heads, the same could not be assumed as a matter of course by the Tribunal. 22. A right of relaxation of age, be it under a single head or by cross- category compounding, being a concession, is to be specifically conferred by way of the governing Memorandum; if not, the same cannot be construed to have been given in the absence of specific conferment in as many words. 23. It would also be clear from the language of the relevant O.M. that the intention of the Government of India was not to give such compounded benefit across the two categories to which the respondent belongs. 24. This would be evident from the fact that although the OBC category and the category of departmental candidates with 3 years continuous experience do not contain any provision for compounding, as opposed thereto, in Item 3 in respect of Persons with Disabilities (who form a class by themselves and have been given relaxation of 10 years), the authorities also chose to add that in case of SC/ST persons with disabilities, the relaxation would be 15 years, being the sum-total of 10 years as Person with Disabilities and 5 years as SC/ST candidates. 25. 25. In similar tune, whereas under Item 3 itself Persons with Disabilities have been given 10 years’ age relaxation under a separate head, for OBC persons with disabilities, the benefits of both the OBC category and the category of persons with disabilities have been given, by extending relaxation to a total period of 13 years (3 years for OBC and 10 years for persons with disabilities). 26. Hence, by specific exclusion, although for certain other classes compounded cross-category benefits have been given in the same O.M., the concerned O.M. chose not to confer such benefit between Item 2 (OBC) and Item 12 (departmental candidates with 3 years continuous service in Central Government). 27. The petitioner-authorities having deliberately chosen not to confer such benefit in the O.M., which governs the present vacancy, the said compounding benefit could not be given to the respondent in any manner whatsoever. 28. The maximum age relaxation out of the two distinct heads applicable to the respondent, being 5 years, having been given to him, the respondent could not claim the lesser relaxation of 3 years under the OBC head as well. 29. In such view of the matter, the Tribunal acted without jurisdiction and de hors the provisions of the governing Office Memorandum dated March 27, 2012 in giving such benefit of compounded cross-category age relaxation to the respondent. 30. Accordingly, the judgment of the Tribunal is not sustainable in law and ought to be set aside. 31. Hence, WP.CT/22/2024 is allowed on contest, thereby setting aside the judgment and order of the Tribunal dated November 28, 2023. 32. No order as to costs. 33. Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities. I agree. - Ajoy Kumar Mukherjee , J.