Sunday, October 16, 2011

NO.368/2009 --on ?????????????-08-2011





Dr.Onkara Naik P.,
S/o Late Parasa Naik,
Aged about 48 years,
designated Senior,
Educational Assistant,
Office of the Regional,
Museum of Natural History,
Sidhartha Layout,
Mysore. ...Applicant

(By Advocate Shri Izzhar Ahmed)


1. Union of India,
through the Secretary,
Ministry of Environment and Forests,
Paryavaran Bhawan,
CGO Complex,
Lodhi Road,
New Delhi – 110 003.

2. The Director,
National Museum of Natural History,
Barakhamba Road,
New Delhi – 110 001.

3. The Scientist in-charge,
Regional Museum of Natural History,
Sidhartha Nagar,
Mysore – 570 011. ....Respondents

(By Additional Central Government Standing Counsel Shri S.Prakash Shetty)



This OA is filed on 11.8.2009 under Section 19 of Administrative Tribunals Act, 1985 and raises the issue whether certain age relaxation is available to the applicant or not for considering him for a promotional post.

2. The impugned notification No.G.S.R. 222(E) dated 30.3.2009 is at Annexure A5 and the prayer is -
“to set aside the said notification as illegal, arbitrary and without considering the reasonable class of group so far as age limit is concerned and direct the respondent-01 to consider the case of the applicant to t he post of Scientist-B vide No.C(vii) Post No.7/NMNH in the Newspaper Advertisement No.01/05/2009-P.III dated 20.06.2009 at Annexure A8”.

2. The brief facts of the case are that the applicant is working as Senior Educational Assistant at Regional Museum of Natural History (RMNH for short), Mysore which comes under Ministry of Environment & Forests. He belongs to reserved category namely Scheduled Caste. He claims that within the department he has no channel for promotion. But can compete for direct recruit post of Scientist Grade B within his department.

3. The respondents published a newspaper advertisement for recruitment under the recruitment rules of 1987 as amended on 30.3.2009. The said notification is at Annexure A8, and it appeared on Employment News dated 20-26/6/2009. Under this, three posts were notified for Scientist Grade 'B' by direct recruitment and their categorization was SC-1, OBC-1, unreserved-1. The applicant applied and appeared for the selection for the said post. However, the said notification prescribed an age limit of 35 years and relaxable as per rules for Scheduled Caste candidates. Hence his candidature was rejected, the applicant being over-age. Therefore this OA. He has also requested for interim prayer to allow him to attend the viva-voce Test on the basis of advance copy of the application dated 30.7.2009 and the interim order was granted on 1.4.2010 permitting the applicant to attend the viva-voce test and directing that the assessment made in the viva-voce test are to be kept in a sealed cover till this OA is finally disposed of. Thus the applicant has also attended the viva-voce.

4. The grounds urged by the learned Counsel for applicant are as follows:
A] As quoted in para-6 of the OA the recruitment norms issued by the Government regarding age limit as per the notification dated 23.9.1987 (RR 1987) were as follows:-
Age limit and Experience for Direct recruitment:-

The upper age limit for Scientist grade 'SD' and below shall be 35 years and for grades higher than Scientist “SD” shall be 50 years. There shall be no upper age limit in respect of officers already working in the department. In case of the Government servants other than officers working in the department, the age limit shall be relaxable in accordance with orders issued by the Central Government from time to time in this regard.

Thus, in the RR of 1987, there was no age limit for departmental candidates. The Ministry of Environment and Forests had been following these rules for their various subordinate offices including the office of the RMNH.

The said category 'SD' has been redesignated as Scientist 'C' in the year 2004. Thus the upper age limit for all Scientist by direct recruitment for the grade of Scientist 'C' and below is 35 years, but with no upper age- limit for departmental candidates. The applicant was eligible under this for selection to grade B.

B] The department issued a newspaper notification for the appointment to the post of Scientist 'C' and 'B' under direct recruitment basis as early as in January, 2000. But did not fill all the 3 posts of Scientist 'B' then notified, instead they had left one vacancy as unfilled. This is borne out by Annexure A2. There the department had made it clear that “for candidates already working in
the Ministry of Environment and Forest and its attached and subordinate offices, there shall be no upper age limit”

C] Subsequently another newspaper notification was issued on 19.5.2007 once again for direct recruitment and on the basis of the same RR 1987. They again reiterated that “There shall be no upper age limit for candidates already working in the Ministry of Environment and Forests and its attached and subordinate offices”. However, as the department did not find any suitable candidate, the selection was deferred. Thereafter, once again another notification dated 8.12.2007 was issued in which one vacancy was notified for the post of Scientist 'C' for which the applicant was allowed to appear for selection in the viva-voce conducted on 2.6.2008 but was not found suitable for the post of Scientist 'C' , this third notification also once again reiterated that there would be no age limit for the departmental candidates appearing for this direct recruitment post, and the permission granted to applicant for viva-voce for that post confirms the above principle.

All this tells us above the tradition followed by the department while the RR 1987 was in force.

5. Now we come to the impugned notification issued vide No.GSR 222(E) dated 30.3.2009 which has the effect of amending the earlier RR of 1987. The Rule-6 of the said new set of rules states that “Provided that the upper age limit shall be relaxable in respect of Government Servants upto five years in accordance with the instruction or orders issued by the Central Government”.

6. Applicant claims that prior to this amendment in the new RR of 30.3.2009, the department had 3 vacancies for the post of Scientist 'B' hence he made a
- 5 -
representation dated 16.6.2009 to the department for considering him against one of those posts but the same was rejected on the ground that amended recruitment rules dated 30.3.2009 under which an age relaxation of only 5 years was applicable and the applicant had already crossed the age limit after age relaxation. In the meantime a newspaper notification dated 20-25/6/2009 was also issued for filling up the post of Scientist 'B'

7. Hence he must be given the benefit of unlimited age relaxation as was the norm prior to 30.3.2009 because these posts include vacancies which existed prior to the new RR and which were carried forward. The new rule which purports to restrict the age relaxation for departmental candidates only up to 5 years should not be made applicable to his case and his chance of promotion as Scientist 'B' should not be restricted on the ground of age bar in persuasion of new rules. If permitted, this would be his last chance for getting the higher post as his present post has no promotional avenue

8. The learned Counsel for applicant has cited from AIR 1983 SC 852 – Y.V.Rangaiah and others Vs.J.Sreenivasa Rao and others and State State of Andhra Pradesh and another Vs. J.Sreenivasa Rao and others.

“ In that it was laid down by the Apex court that vacancies which occurred prior to amended rules would be governed by old rules and not by new rules. Hence a panel should have been prepared in 1976 and transfer or promotion should have been made out of that panel”.

9. The learned Counsel for respondents have argued that the OA should be rejected in limine. He agrees that the old Rule-6 of the Department of Environment, Forests and Wildlife Scientific Group “A' posts Rules, 1987 had a
provision that there shall be no upper age limit for the candidates who are working in the Department, where as for all others the upper age limit was thirty-five years for posts below Scientist “C' [erstwhile Scientist 'SD']. As per the new Rules, however, the age relaxation available to the departmental candidates appearing for viva-voce against the down graded post for Scientist 'B' is not available. The applicant claims that the chart showing vacancy position as at Annexure A11 has not been revealed by the respondents. Only on demanding under RTI by the applicant, the respondents have furnished a reply on 20.8.2009 stating that the vacancy position had occurred prior to the amendment of RR 1987 Annexure A10.

10. Further during the course of hearing the learned Counsel for applicant had filed MA No.195/2010 dated 2.6.2010 which was a prayer for filing additional rejoinder. The same was allowed by order dated 4.6.2010 and the respondents' reply to the additional rejoinder has also been taken on record. However, we find that the said additional rejoinder does not state any new material fact regarding the original application, but informs us that in pursuance of the interim relief granted to the applicant on 1.4.2010, he was allowed to appear for viva-voce on 27.4.2010. Thereafter, in para-5,6,7,8 & 9 the additional rejoinder seeks to point out some alleged violations of the norms for actually forming the selection parameters and conduct of the interview by the selection board. That being so, we are not inclined to consider the questions raised in the additional rejoinder, in so far as actual conduct of interview is concerned.

11. From all these arguments of the respondents, the only one important ground which has been mentioned again and again is as stated in para-1 of the additional reply namely that notification (advertisement dated 1.5.2009) must be under existing rule (i.e., amended rule of March 2009) and not under a dead rule
(i.e., earlier RR of 1987). Department may have their own reasons for not filling up vacancies arising several years back. But whenever respondents are ready to fill up the vacancies, that recruitment must be as per RR then existing. Therefore, Y.V.Rangaiah's case is not applicable in this case.

12. We have heard both the learned Counsel carefully and also gone through all the material kept on record by them. We do agree with the learned Counsel for applicant that when the vacancies were available in the earlier years but were not filled up, the department cannot justify why the chance is denied to the applicant. We should make it clear that we agree with the learned Counsel for applicant only in part. There is a good logic when the learned Counsel for respondents says that the new notification must be under the new rules and also that the department may have their own reasons for not filling up the vacancies in the past. However, the reason for agreeing partly with the learned Counsel for applicant is the peculiarity of this OA. Here is a case of only one employee and not of a large number of employees. The employee is presently in such a cadre where he has no promotional avenue. Being allowed a fair chance to be interviewed for the selection of Grade 'B' Scientist is in relaxation of his over age, especially when such relaxation was available under older rules is his only demand and we consider it a fair demand. Therefore, we are inclined to allow the OA partly and to direct only for the purpose of the present OA and for the present applicant, that the prayer at para 8.1 and 8.2 is granted. The respondent department is directed that the applicant shall be considered for the post of Scientist 'B'. As per the interim order passed earlier by this Tribunal on 1.4.2010, the respondents have already been directed to allow the applicant for interview and keep the result in a sealed cover. Since we declare him as eligible for the interview, the sealed cover results should be declared by the respondent department and if the applicant is found suitable he should be offered the promotion for Group 'B' Scientist. Needless to mention that in case the results of the sealed cover reveal that he was found unfit on the ground of overage, then that ground shall be ignored and his suitability will be decided only on the basis of what has been mentioned regarding his educational qualification and his delivery of work as reflected in ACR.

13. OA is allowed as above. There shall be no order as to costs.



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