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Judgment
L. Narasimha Reddy, J
The applicant had completed study of MS in the year 2010. He rendered services in District Hospital, Devas, MP as PG Medical Officer, and as a Senior Resident in a Government hospital at Indore up to the year 2012.
The Employees State Insurance Corporation (ESIC), the 2nd respondent herein, advertised posts of Senior Resident in the ESIC Model Hospital, Indore on temporary tenure basis for a period of three years. The applicant responded to the same and submitted an application. He was selected through memorandum dated 27.02.2012. The 2nd respondent appointed the applicant as Senior Resident on temporary tenure basis for a period of three years.
The 2nd respondent issued advertisement for recruitment of Insurance Medical Officers, Grade-II (Allopathic) on 30.08.2013 (Annexure A-2). The maximum age limit for that post was mentioned as 30 years. However, provision is made for relaxation of age limit to the extent of five years, for candidates belonging to SC/ST/OBC/PWD/Ex. Servicemen and Other categories, and in-service candidates of ESIC.
The applicant was successful in the written test. He was short listed for interview. He submitted an application claiming the benefit of relaxation of age. He pleaded that in view of his appointment as Senior Resident in ESIC itself, he deserves to be treated as employee of ESIC, and thereby he is entitled to be extended the benefit of relaxation of age limit. However, his request was not acceded to. As a result, he was not considered for appointment as Insurance Medical Officer Grade-II (Allopathic).
This OA is filed with a prayer to direct the respondents to extend the benefit of relaxation of age limit to the applicant, and thereafter to appoint him in that post, duly protecting his position in the seniority. The relief of consequential benefits is also claimed.
The applicant contends that in Annexure A-2 itself, it was mentioned that upper age limit is relaxable up to 5 years for the employees of ESI Corporation and Government servants, and being an employee of the ESI Corporation, he is entitled for age relaxation. It is also pleaded that the insistence of the respondents that the employment should be against a regular vacancy cannot be supported, having regard to the clauses contained in the advertisement.
On behalf of the respondents, counter affidavit is filed. It is stated that the applicant is working as Senior Resident in ESI Corporation Hospital, Indore. As regards the claim of the applicant for relaxation of age, it is stated that the relevant clause in Annexure A-2 was inserted on the basis of para 12 of the Office Memorandum dated 27.03.2012 (Annexure R/1) issued by the DoP&T, and a plain reading of the said clause does not enable the applicant to get the benefit of relaxation of age limit.
We heard Shri Ashwani Bhardwaj, learned counsel for the applicant and Ms. Sneha Verma for Shri Gaurang Kant, learned counsel for the respondents.
It is a matter of record that the applicant is working as Senior Resident in the ESI Corporation Hospital, Indore. He was offered appointment as Senior Resident vide Memorandum dated 27.02.2012 and the applicant had joined on 10.03.2012. Though the tenure of appointment of the applicant was for three years, it is being extended from time to time.
The advertisement Annexure A-2 was issued for the purpose of recruiting Insurance Medical Officers. The selection of candidates is on the basis of written test conducted for that purpose. This was to be followed by interview. The age limit fixed for the candidates is 30 years as on 07.10.2013. Age relaxation up to the extent of five years is provided for the employees of ESI Corporation and government servants in accordance with the instructions or orders issued by the Central Government.
Similar facilities were extended to the candidates belonging to SC/ST/OBC/PWD/Ex-Servicemen candidates etc.
The applicant submitted his application in response to the advertisement and he has even participated in the written test. He was also short listed for interview. At that stage, the respondents refused to consider the candidature of the applicant on the ground that he crossed 30 years of age. They refused to extend the benefit of age relaxation to the extent of 5 years to the applicant on the ground that he is not a regular employee of the ESI Corporation.
The relevant clause in Annexure A-2 reads as under:-
"C. Age Limit: Not exceeding 30 years as on 07.10.2013. Upper age limit is relaxable upto 5 years for employees of ESI Corporation and Government servants in accordance with the instructions or orders issued by the Central Govt. Upper age limit is also relaxable to SC/ST/OBC/PWD/Ex-Servicemen & other categories of persons as per rules/instructions of Govt. of India."
This, in turn, is based upon the office memorandum dated 27.03.2012 (Annexure R-1). Clause 12 thereof, which applies to departmental candidates with three years continuous service in Central Government, reads as under:-
"Departmental Candidates with three years continuous service in Central Government."
In column under the heading "Extent of Age Concession", it is mentioned as under:-
"5 years for posts which are in the same line or allied cadres and where a relationship could be established that the service already rendered in a particular post will be useful for the efficient discharge of the duties of post."
A perusal of the clauses contained in Annexure A-1 as well as Annexure R-1 discloses that nowhere it was mentioned that three years of service of a departmental candidate must be in the form of regular service or in a cadre post. The expression used is "employee of corporation". That the applicant is an employee of ESI Corporation, even now, is beyond any pale of doubt.
Though the appointment was initially for a period of three years, it is being extended for the past six years. He is subjected to the same terms and conditions as any other regular employee. His emoluments are in the form of pay scale, and not in the form of consolidated salary. He is precluded from undertaking any private practice and he is extended all the benefits including leave, as are admissible to temporary employees. He was prevented from leaving the station without handing over the charge to the reliever. He was also subjected to medical fitness test before he joined duty.
Once the applicant answers the description of employee of ESI Corporation, there is no basis to deny him the benefit of relaxation of age limit. Since the applicant has already cleared the written test, he can be issued orders of appointment after due verification of other particulars, and, if necessary, by subjecting him to interview in the same fashion as the other selected candidates were subjected to. If he is found otherwise fit and is appointed as Insurance Medical Officer Grade-II (Allopathic), his seniority deserves to be fixed on the basis of rank assigned in the selection process. However, he shall not be entitled to be extended any financial benefit for any period during which he did not function as Insurance Medical Officer, Grade-II.
We, therefore, allow the OA holding that the applicant is entitled to be extended the benefit of relaxation of age limit for the purpose of recruitment to the post of Insurance Medical Officer Grade-II (Allopathic) in the 2nd respondent organization, i.e., ESI Corporation. If the applicant is found fit to be appointed on being extended the relaxation of age limit and subjected to interview, he shall be placed at appropriate place in the seniority list on the basis of marks secured by him. However, he shall not be entitled to any financial benefits prior to the date of appointment as an Insurance Medical Officer, Grade-II (Allopathic).
There shall be no order as to costs.