Asheesh Kumar vs Himachal Pradesh State Electricity Board Ltd. & Ors

Jyotsna Rewal Dua, J

The petitioner has challenged an office order dated 19.8.2016 whereby his appointment as junior T-Mate (contract basis) was cancelled. Pursuant to the interim order passed in the petition, petitioner is continuing to serve as such and as per the statement made during hearing of the case, by learned counsel for the petitioner, his services have been regularized on 6.12.2019 during the pendency of the petition.

2(i) On 19.7.2014, the respondent-Board issued an advertisement inviting applications for 677 posts of junior T-Mate from eligible candidates belonging to specified categories. Seven posts of junior T-Mate were meant for general (WFF), three posts were meant for OBC (WFF) and three posts were meant for SC (WFF) category. No posts were advertised for the category-ward of Ex-servicemen.

2(ii) The petitioner applied under the advertisement. Respondents allowed him to participate in the selection process. The result was declared on 6.8.2015 wherein name of the petitioner figured at serial No. 191 in the list of selected candidates. He was eventually appointed as junior T-Mate (contract basis) on 10.8.2015.

2(iii) On 21.5.2016, a show cause notice was issued to the petitioner by the respondents to the effect that under the advertisement dated 19.7.2014, the age of the applicant should have been between 18 to 30 years as on 1.1.2014. The upper age limit was relaxable by five years for the candidates belonging to scheduled castes/schedule tribes/other backward classes/children-grand children of freedom fighters/Ex servicemen. The petitioner with his date of birth as 14.5.1982 had crossed the upper age limit. The petitioner had not submitted any certificate along with his application form, under which benefit of relaxation in upper age limit as provided under the advertisement/R&P Rules, could be granted to him. Therefore, show cause notice was issued to him as to why the appointment made in his favour on 10.8.2015 be not withdrawn.

2(iv) The petitioner on 18.7.2016 replied to the show cause notice. It was asserted in this reply that petitioner's grand father Shri Govind Ram was a freedom fighter and was awarded a 'Tamar Patra' in this regard on 15.8.1972. The petitioner asserted to have handed over this certificate to the authorities at the time of his interview, for availing benefit of age relaxation.

2(v) The respondents were not satisfied with the explanation offered by the petitioner to the show cause notice and proceeded to cancel his contractual appointment vide office order dated 19.8.2016. Aggrieved against the cancellation of his appointment, the petitioner preferred instant petition on 24.8.2016. Pursuant to stay of impugned order, granted on 26.8.2016 by the erstwhile learned H.P. State Administrative Tribunal, petitioner is continuing to serve till date. As per the statement made during hearing of the case by learned counsel for the petitioner, his services have been regularized on 6.12.2019 during pendency of present petition.

Heard learned counsel for the parties and gone through the records of the case.

Learned counsel for the petitioner submitted that alongwith his application form, the petitioner had appended 'Tamar Patra' (Annexure A-3) awarded on 15.8.1972 in favour of his grand father Shri Govind Ram. Being grandson of a freedom fighter, the petitioner was entitled to relaxation by five years in the upper age limit set down in clause-3 of the advertisement in question. Therefore, learned counsel contended that the appointment of the petitioner could not have been cancelled.

Learned counsel for the respondent-Board contended that the pleas taken by the petitioner are based on incorrect factual position. The petitioner had never applied as grand son of freedom fighter, rather he had applied as ward of Ex-servicemen. However, no post for ward of Ex-servicemen was reserved in the advertisement issued on 19.7.2014. The appointment was inadvertently given to the petitioner. Therefore, it was required to be cancelled. While cancelling the appointment, the procedure in accordance with law was followed. Due opportunity of hearing was given to the petitioner. While responding to the show cause notice, petitioner for the first time put forward the plea of his being grand son of freedom fighter and therefore eligible for relaxation in upper age limit fixed under the advertisement.

5(i) The advertisement issued on 19.7.2014 invited applications for filling-in 677 posts of junior T-Mate. Admittedly, no posts were advertised for the category of Ex-servicemen or wards of Ex-servicemen. However, seven posts were advertised for Gen.(WFF). Following age limit was prescribed in the advertisement:-

"3. Age: The applicant should be between 18 to 30 years as on 01-01-2014. Upper age limit is relaxable by five years for candidates belonging to Scheduled Caste, Scheduled Tribe and Other Backward Classes & Children/Grand Children of Freedom Fighters of Himachal Pradesh. The upper age relaxation is also available to Ex-Servicemen candidates of H.P. as per provision of relevant rules/instructions of H.P. Govt."

5(ii) The application form submitted by the petitioner against this advertisement has been placed on record by the respondents as Annexure RA-2. As per clause-8 of this application form, the petitioner had applied as "general Ex-Servicemen children" meaning thereby that the petitioner had applied as ward of Ex-servicemen (general). The petitioner has not disputed this application form. The fact that petitioner had applied as ward of Ex-servicemen (general category) is also substantiated by the fact that along with his application form, petitioner had annexed certificate reflecting his father Shri Roshal Lal as an Ex-serviceman. As per clause No. 6 of the advertisement, all the documents in support of the application, were to be sent along with the application form. It is apparent that the petitioner had actually applied as ward of Ex-servicemen (general category) and had appended certificate of his father reflecting the latter to be an Ex-serviceman. However, no post of T-Mate was reserved for wards of Ex-servicemen (general category). As a general category candidate, the petitioner had crossed the upper age limit fixed in the advertisement. The respondents, however, allowed the petitioner to participate in the selection process. His name figured in the list of selected candidates and was eventually appointed as junior T-Mate on contract basis on 10.8.2015.

5(iii) Realizing the mistake in respect of determining the eligibility of the petitioner viz-a-viz his age and his contractual appointment as Junior T-Mate, the respondents issued show cause notice to him on 19.6.2016. In response to this show cause notice, the petitioner stated that he is grand son of Shri Govind Ram, a freedom fighter, an awardee of 'Tamar Patra' . He further submitted that the 'Tamar Patra' issued on 15.8.1972 in favour of his grand father Shri Govind Ram was produced by him at the time of interview/alongwith application and, therefore, he was entitled for age relaxation.

5(iv) The sum total of factual position is that the petitioner had applied for the post of junior T-Mate as ward of Ex-servicemen (general category). He had appended the certificate of his father reflecting the latter as an Ex-serviceman in support of his claim. However, admittedly, no post for ward of Ex-Servicemen (general category) was advertised. In response to the show cause notice issued to him for cancellation of his appointment, the petitioner stated that he had furnished a certificate of his grand father being a freedom fighter and therefore, as a grand son of freedom fighter, he was eligible for five years relaxation in the age limit admissible for the candidates belonging to the ward of freedom fighter in terms of the advertisement. As already noticed above, the petitioner had not applied as ward of freedom fighter. The certificate at Annexure A-3, the Tamar Patra reflects the name of awardee as Shri Govind Ram, whereas the Ex-serviceman certificate of petitioner's father Shri Roshan Lal reflects that Roshan Lal is son of Shri Lobhi Ram. Learned counsel for the petitioner submitted that Govind Ram is also known by the name of Lobhi Ram. Respondents have not contested or disputed the fact that Govind Ram, the awardee of 'Tamar Patra' (Annexure A-3) is grand father of petitioner. Be that as it may.

5(v) it is not the case of the respondents that the recruitment of the petitioner was through back door. Petitioner had participated in a selection process under taken by the respondents in terms of advertisement dated 19.7.2014. No facts were concealed by him while applying for the post of junior T-Mate (contract basis). There had been no misrepresentation on his part. No fraud has been alleged to have been committed by the petitioner. The error, if any, lies with the respondents in not scrutinizing petitioner's form properly. As per the respondents, the petitioner, as a general category candidate, was not eligible and could not have been appointed as he had crossed the maximum prescribed age limit of 30 years as on 1.1.2014. The benefit of age relaxation by five years was admissible to candidates belonging to SC/ST/OBC/Wards of Freedom Fighters/Ex-servicemen. Respondents have not disputed that petitioner was ward of ex-serviceman and grand son of freedom fighter. A certificate in respect of petitioner being ward of ex-servicemen was admittedly appended alongwith his application form whereas a certificate reflecting his grand father as a freedom fighter was statedly produced by him during interview and admittedly appended alongwith reply to the show cause notice. Petitioner was appointed as a junior T-Mate on contract basis on 10.8.2015. He has continued to serve the respondent board in that capacity till date. His services have been regularized by the respondent board on 6.12.2019 during the pendency of the present petition. At present, he has become overage for the post in question. Cancellation of appointment of the petitioner in the facts and circumstances of the case would be very harsh upon him. Therefore considering all the facts and attending circumstances and without treating it to be a precedent, this petition is allowed in exercise of equitable jurisdiction. Impugned office order dated 19.8.2016 is,therefore, quashed and set aside. Petition stands disposed of alongwith pending application(s), if any.