Manjula Das, Judicial Member:
1. By this O.A., applicant makes a prayer to set aside the order dated 31.05.2013 where he was released from his service and to direct the respondents to reinstate him and regularize his services.
2. Mr. P. Mahanta, learned counsel for the applicant submitted that applicant was initially appointed as Office Assistant (E&A) in the remuneration of Rs. 4500/- p.m. against sanctioned post in DOEACC Centre, Guwahati for a period of three years. It was further submitted by Mr. Mahanta that in pursuance of the advertisement published in the Employment News dated 7-13 January 2006, applicant offered his candidature for the post of Office Assistant in the pay scale of Rs. 4000-6000/-. According to the learned counsel, on being selected for the post of Office Assistant in the above scale, applicant tendered his technical resignation from the earlier post and he was subsequently appointed as such in the pay scale of Rs. 4000-6000/- for a period of five years. However, due to pendency of criminal case, applicant was suspended from service vide order dated 19..12.2008 and thereafter was terminated from service vide Older dated 20.06.2011.
3. Mr. Mahanta further submitted that vide letter dated 26.04.2010, the respondents have finalized the modalities for regularization at all the employees working In term contract basis for five years against vacant posts and accordingly all the similarly placed contract employees were considered for regularization. Being aggrieved by the suspension and subsequent termination order, applicant approached this Tribunal vide O.A. No. 126 of 2011 which was dismissed by this Tribunal vide order dated 07.02.2012. According to learned counsel, during the pendency of the said O.A., applicant was acquitted from the criminal case instituted against him. Applicant assailed the order dated 07.02.2012 passed by this Tribunal before the Hon’ble Gauhati High Court by way of WP(C) No. 2360/2012. The Hon’ble High Court vide its judgment and order dated 27.11.2012, while allowing the writ petition set aside the order of this Tribunal and directed the respondents to revoke the suspension and termination orders. Respondents were also directed to reinstate the applicant in service as contractual employee and then consider his case for regularization with further direction to make payment of wages to the applicant from 01.12.2011 i.e. the date of his acquittal. According to learned counsel, in terms of the aforesaid order, applicant was reinstated in service as contractual employee but vide order dated 31.05.2013, applicant was released from his service on the ground that applicant was found to be over aged.
4. Learned counsel further submitted that the committee constituted to consider his case for regularization is not proper inasmuch as the same was not constituted in terms of the composition prescribed vide letter dated 26.04.2010. Further, the advertisement dated 7-13 January 2006 prescribed no age limit for internal candidates. However, applicant’s case was not considered for regularization on the ground of over-age. According to learned counsel, the action of the respondents in not regularizing his service and releasing him from service is not at all sustainable in low.
Mr. Mahanta vehemently argued that the impugned released order was issued on the basis of the decision of the regularization committee in its meeting held on 29.04.2013 where the committee constituted and the committee is not in accordance with the mandate of the DOEACC instruction dated 26.04.2010.
8. By countering the argument advanced by Mr. P. Mahanta, learned counsel for the applicant, Mrs. S. Bora, learned Addl. CGSC for the respondents submitted that applicant had rightly mentioned that the stipulated upper age limit for the post of Office Assistant in the pay scale of Rs. 3050-75-3950-4590 was 27 years and the applicant at that time was 26 years 6 months 3 days, However, that appointment in 2002 was purely temporary with consolidated pay and did not confer upon the applicant/the status of a regular employee or internal candidate.
6. Mrs. Bora further submitted that the initial suspension of the applicant was in accordance with Rule 10(1) of the CCS (CCA) Rule 1965 due to the pendency of the criminal case against him. It was further submitted that in compliance of the order of the Hon’ble Gauhati High Court the applicant was reinstated in service with effect from 08.02.2013 and his case for regularization of services of the contractual employees which was adopted by the respondent society. According to Mrs. Bora, as per Central Govt. norms which are also followed by NIELIT, those who are in the regular service are treated as internal candidates.
7. We have heard the learned counsel, perused the pleadings and material placed before us. The main issue involve in the present case is apropos the age factor for appointment to the post of Office Assistant (E&A) under DOEACC Society. However, that DOEACC Society subsequently renamed as NIELIT w.e.f. 10.10.2011 which according to respondent authority does not have the requisite age for so appointment. Amongst other, the another issue involve that the decision dated 31.05.2013 for regularizing the applicant in NEILIT in its meeting held on 29.04.2013 on the plea of age is inconformity with the instruction of the Registrar of DOEACC Society instruction dated 26.04.2013.
8. In pursuance of the advertisement 25th July 2002 made by the Director-in-Charge, CEDT, North East (U) inviting applications for various posts including Office Assistant on Contract Basis, applicant offered his candidature for the post of Office Assistant. The CEDT, North East (U) is a unit of CEDTL New Delhi, an Autonomous Scientific Society of Ministry of Communications and Information Technology, Department of Information Technology, Govt. of India. In the said advertisement, the age limit for the post of Office Assistant as on 01.09.2002 Essential Qualification have been prescribed as under:
'Age Limit on 01/09/2002 : 27 years
Essential Qualification Graduate from recognized University with good working knowledge of Computer.'
The applicant having the prescribe qualification and within the age limit, was selected and appointed for the post of Office Assistant in CEDTI, Northeast (Upper) on contract basis for a period of 3 (three)years on consolidated remuneration of Rs. 4500/- p.m. vide order dated 21.10.2002 and applicant accepted the offer of appointment and joined in his service on 28.11.2002. The CEDTI since all over India (except Mohali) merged with the DOEACC society in December 2002, eventually, the applicant became an employee of the DOEACC society.
10. Before completion of the period of 3 years after joining in the said post, applicant made a representation before the Director, DOEACC Centre i.e. respondent No. 5 praying for consideration of his case for promotion to the higher post of Office Assistant (E&A), having pay scale of Rs. 4000-100-6000/-. On 07.07.2005, the Registrar, DOEACC Society wrote a letter to the Director-in-charge, DOEACC Centre, Tezpur/Guwahati on the subject of Proposal for conversion of mode of appointment from consolidated emoluments to Scale of pay for the post in respect of existing contract employees’. By the said letter, it was intimated the addressee that as per revised Service Rules, which are effective from 01.04.2005, all appointments will be made either on contract or on deputation basis only. The contract appointment shall be made for a maximum period of five years against available regular vacancy/post. The said contract appointment will be made allowing with scale of pay specified for the respective post and the incumbent will be allowed for all allowances as applicable to the regular employees of the Society. It was further decided with the approval of Competent Authority that the positions occupied by the existing contract employees against the sanctioned posts may be advertised by DOEACC Centre, Tezpur/Guwahati under the proposed Recruitment Rules. Further decided that the applicant working on contract basis with consolidated remuneration, may also apply afresh and may be considered along with the other candidates.
11. Situated this position, the respondent authority made an advertisement in the Employment News from 7-13 January 2006 for filling up the various posts including Office Assistant in the pay scale of Rs. 4000-6000/- where the eligibility, experience and educational qualifications etc. required in respect of Office Assistant are mentioned as below:
'06. OFFICE ASSISTANT (ESTT. & ACCOUNTS)
(iv) Age limit as on 31.12.05 : 27 years
(v) Qualification & Experience : Graduate from a recognized University, knowledge of Computer operation/Internet with good communication skills. Preferably Commerce graduate.
12. There is also a General Instructions where against Sl. No. 2 says that - 'There will be no age limit for internal candidates. In case of candidates belonging to Se/ST relaxation will be as per Govt. order.'
In the aforesaid Instructions, it is also specifically says that - 'Those who are working in Govt./PSUs/ Autonomous Bodies must apply through proper channel.'
13. The applicant thereafter, appeared in the interview held on 27. Applicant was found suitable for the post of Office Assistant (E&A) and vide order dated 24.04.2006, applicant was offered the higher post of Office Assistant (A&E) in the pay scale of Rs. 4000-100-6000/- on a term ‘contract basis’ for a period of 5 years. Thereafter. applicant resigned from his earlier post of Office Assistant (P&S) to enable to join into the higher post of Office Assistant (A&E) and applicant tendered his resignation on 24.04.2006 and the same was accepted by the DOEACC Centre. Guwahati vide office order dated 26.04.2006 and applicant joined w.e.f. 27.04.2006.
14. It is noted that vide certificate dated 24.04.2007, Sri K. Baruah, Director, DOEACC Centre, Guwahati, MC & IT, Govt. of India certified that the applicant has been working in DOEACC Centre Guwahati under Ministry of Communications & Information Technology, Govt. of India since 28.11.2002 till date. Further certified that the applicant had joined the Organisation (Formerly - Centre for Electronics Design & Technology of India) in the post of OA (SA-II) on 28.11.2002. Subsequently on 27th March 2006, the applicant was promotion to OA (SA-III), the post in which he is currently serving. Meanwhile, the applicant was placed under suspension vide order dated 19.12.2008 on the ground that due to pendency of the criminal case against the applicant. Thereafter, on 20.06.2011, the respondents issued an order terminating the service of the applicant on the ground that the contract of the applicant expired on 15.06.2011.
15. While the respondents passed the order of termination on 15.06.2011, reference was made that the criminal case numbered as Case No. 100/08 pending before the learned court of Chief Judicial Magistrate, Kamrup, Assam. In the meantime, applicant was acquitted from the criminal case instituted against him. Being aggrieved, applicant approached before this Tribunal vide O.A. No. 126 of 2011 wherein this Tribunal vide judgment and order dated 07.02.2012 dismissed the said O.A. Applicant thereafter approached before the Hon’ble Gauhati High Court vide W.P.(C) No. 2360/2012 where the Hon’ble High Court allowed the said petition vide judgment and order dated 27.11.2012 with a direction to the respondent authorities to revoke the orders of suspension and the subsequent termination order dated 19.12.2008 and 20.06.2011 respectively. Hon’ble High Court further directed the respondent authorities to reinstate the applicant in service as a contractual employee. In compliance with the judgment and order dated 27.11.2012, the respondent authorities reinstated the applicant vide order dated 21.01.2013 and the applicant on 08.02.2013 resumed his duties and was performing the same.
16. It is noted that thereafter, the respondent authority vide office order dated 31.05.2013 released from service on the plea that the applicant was found to be over aged at the time of filing application for the post of Office Assistant (E&A) and as on 31.12.2005, his age was found as 29 years 10 months and 3 days against the eligibility age of 27 years. As per the DOEACC advertisement dated 7-3 January 2006, which specified 1 post for Office Assistant, the prescribed rule incorporated the age limit as on 31.12.2005 is ‘27 years’.
Admittedly, on making of application, applicant was not in the age limit and as per respondents, he is over aged as he was found to be 29 years 10 months 3 days old as on 31.12.2005.
17. There is d general instruction for appointment of the advertised sold post which stipulates against Sl. No. 2 that 'There will be no age limit for internal candidates.'
Now the point is to be decided as to whether the applicant will be taken on account as ‘internal candidate’ or ‘outsider fresh’?
18. The Hon’ble Gauhati High Court in WP(C) No. 2360/2012 vide order dated 27.11.2012 observed in paragraph 36 as under:
'36. In the present case, the consequences of the petitioner’s acquittal were that he ought to have been reinstated even if he was no longer, in effect, in the service of the respondent society and, on his reinstatement, the respondent society ought to have considered his case for the purpose of regularization, as had done in the case of other contractual employees by the respondent society in terms of the policy, which had been adopted, at the relevant point, of time by the respondent society. As this aspect, too, of the petitioner’s case appears to have not been given due consideration by the learned Tribunal. We feel constrained to interfere with the learned Tribunal’s orders, which stand impugned in this writ petition.'
19. While the Hon’ble Gauhati High Court allowing the said Writ Petition, also directed the respondent authorities to consider his case for the regularization in terms of the erstwhile policy of regularization of services of the contractual employees, which was adopted by the respondent society as indicated above.
20. On 29.04.2013, a committee was held comprising of the, following for considering probation clearance/regularization of services of Group Band C employees of NIELIT Shillong and NIELIT Guwahati:
1) Director, Director NIELOT Tezpur/Guwahati Centre-Chairman.
2) Shri S. Borgohain, Scientist-C. NIELIT Guwahati-Member
3) Shri A. Verma, Assistant Director (Adm), NIELIT HQ-Member
4) Shri N. Biswal, Assistant Director (F), NIELIT Guwahati-Member.
As per minutes of the committee appeared in Annexure-P, page 73-74 to the O.A., has taken decision as under:
'4. On scrutiny of the service records, records of appointment of Shri Rana Sharma and other relevant records, the Committee observed that the appointment of Shri Rana Sharma in 2006 as Office Assistant (pre revised scale of pay of Rs. 4000-6000) was found to be an erroneous appointment. It was observed that an advertisement for filling up the various posts at the Centre was published in Employment News 7-13th January 2006 Edition and the last date of receipt of applications was prescribed as 25th January 2006.
5. In view of the above, the Committee could not consider his case of regularization of services at the Centre due to the erroneous appointment.'
On the basis of said decision of the committee, the Assistant Director (F), NIELIT, Guwahati vide impugned letter dated 31.05.2013 intimated the applicant that the regularization committee could not be considered his case for regularization due to non-fulfillment of eligibility criteria of appointment as he is found to be 29 years 10 months & 3 days old as on 31.12.2005.
21. To arrive the decision, we take a note of service rendered by the applicant in CEDTI which is merged in DOEACC and subsequently renamed as NIELIT. Initial appointment of the applicant was on the basis of the advertisement where the applicant fulfilled all the criteria incorporated in the earlier advertisement. The contract period was 3 years end before completion, applicant made application in pursuance of advertisement dated 7-13th January 2006 issued by the DOEACC where the appointment is in dispute. In the said advertisement along with the general instruction, where the details advertisement in the web site for the post of Office Assistant as well as others, eligibility, experience and essential qualification as required in respect of the post are also appended and there IS a prescribed criteria how to apply and it was also mentioned that the candidates who are working in Govt. Organisation/Autonomous bodies/PSUs must apply through proper channel. In pursuance of the said advertisement, the applicant did make application through proper channel which was considered by the selection committee and found him eligible for being appointed for the advertised post of Office Assistant (E&A), Thus) the initial interpretation of the selection committee be taken into note that the selection committee followed the guideline as ‘Internal Candidate’ and the applicant found suitable for appointment where he was appointed vide order dated 24.04.2006.
22. It is also noted that the applicant did resign from the post of Office Assistant (S&P) on consolidated pay as contract basis on 24.04.2006 which was also accepted by the DOEACC Society on 26.04.2006,
It is also noted from the Annexure-L i.e. the certificate of Director, DOEACC Centre Guwahati dated 24.04.2007 who certified that the applicant has been working in DOEACC Centre Guwahati under Ministry of Communications & Information Technology, Govt. of India since 28.11.2002 till date. Further certified that the applicant had joined the Organisation (Formerly - Centre For Electronics Design & Technology of India) in the post of OA (SA-II) on 28.11.2002. Subsequently on 27th March 2006, applicant was promoted to OA (SA-III), the post in which he is currently serving.
Further it is noted that the applicant while submitted his resume on 16.01.2006, he has mentioned his date of birth as 28.02.1976/29 years 10 months. After long 7 years of service in regular advertised post, the respondents took a decision for regularizing the applicant by taking the age factor that he is over aged.
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From the entire episode, it emerges that the selection committee while sitting for the selection of candidates for sole post i.e. one post of Office Assistant (E&A), applicant was found suitable by taking into note of that age of 29 years 10 months as per the resume. 'It is very importantly noted that the guideline for constitution of a regularization committee at whose decision, the impugned release of the applicant was issued on 31.05.2013, the said committee was not consisted as per the instruction and guideline dated 26.04.2010 issued by the DOEACC Society as appeared from Annexure-N to the O.A. The said guideline provides for constitution of a committee in order to regularize the services of the officers and staff at DOEACC Centre who have been appointed against the vacant posts on term contract basis for a period of 5 years where it was directed to constitute the following composition: 'i) Centre Director : Chairman ii) One Officer from HQ/Centre* : Member iii) One outside expert* : Member (*Atleast 2 levels above the Officer/staff concerned).' 24. But from perusal the minutes dated 29.04.2013 by which it was set for considering probation clearance/regularization of services of Group Band C employees, said committee was consisted with Chairman and 3 Members, who are all from ‘NIELIT’ and not from ‘outside expert’ and in our view, the committee was not constituted in accordance with the instruction dated 26.04.2010 and as the corum is not constituted, thus the decision rendered by the committee in its meeting held on 29.04.2013 and consequential order 31.05.2013 is not sustainable under the law. Accordingly, we have no hesitation to interfere with the matter and to set aside the order dated 31.05.2013 and to direct the respondent authority to reinstate the applicant forthwith and consider his case for regularization in accordance with law. We order accordingly. 25. With the above observation and direction, O.A. stands disposed of. There shall be no order as to costs.