Central Council for Research in Unani Medicine (Through Its Director General) v. Dr. Merajul Haque and Anr

".' c. • ""J':-: " '/ \ * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 20th December, 201'7 + W.P.(C) 11407/2017 CENTRAL COUNCIL FOR RESEARCH IN UNANI MEDICINE (THROUGH ITS DIRECTOR GENERAI" ). Through " ' .... Petitioner Mr.S. Sunil, Adv. with , MrJagdish N., Adv. " '-" .. -., versus" : -." , , ' ,,', .' , I DR. MERAJUL HAQUEANn',ANI}' ..... Respondents Oberoi, Adv. for .",', ':. Lakshmi, CGSC with . ;'.:, R. Rai, Adv. for R-2. , , '.', '}:, \. , - , .. . , ' • .',' < ' ,\ , ' , ,', CORAM: :,'.' ,y:::' HON'BLE MS. JUSTICKHJIMAKOHLI HON'BLE MS. JUSltCl{iiEKHA<PALLI HIMA KOHLI, J (ORAL)

¶1" ,. I : f ' • 1"" .' " ; :.- , .; .... ,J -, --".- The present petition has been filed by the petitioner/Central Council for Research in Unani Medicine, assailing the judgment dated 15th May, 2017, passed by the Central Administrative Tribunal, , Principal Bench, New Delhi, in OA No.4341/2013, filed by the respondent no. 1 herein and three others, praying inter alia for WP(C) No.1 1407/201 7 Pagel 0/10 Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. e regularisation of their servIces with retrospective effect with all consequential benefits.

¶2We may note that during the pendency of the Original Application, out of the four applicants before the Tribunal, the petitiorier had regularised the services of three applicants as Research Officer (Unani) w.e.f. 26th December, 2014, but it had declined to regularise the services of the no.1 (hereinafter referred to as the "respondent") herein 'on the ground that ,he was already overage , ,' .. - ,) ; " as on 10th October, 2005, which thte': closing date receipt of ,. • 't " - . , . .' . applications and therefore, was :i,neligible',to apply for selection to the , l' subject post. , :' ,:r, f>,;,>

¶3In the impugned 2017, the Tribunal rejected the plea afthe was ineligible far .,' " .. _ .... , appointment to the subject post for the reasorl,that on the closing date for receipt of the orl:':.:i;'oth':;October, 2005, he had already become overage, having crossed 35 years. The Tribunal held that the respondent was entitled to regularization of his services as Research Officer (Unani) w.e.f. 26th December, 2014, i.e. the date on Page 2 0[10 ) which the servIces of three other similarly placed officers were regularized by the petitioner.

¶4Before dealing with the submissions of the learned counsel for the petitioner, we may elucidate the relevant facts. On 1 st October, 2005, the petitioner issued Advertisement no. 112005, inviting applications to the post of Research Officer (Unani). The closing date for receipt of the applications was 10th October, 2005. The age limit prescribed by the petitioner for the:'subjec{ post in the advertisement , , " was upto 35 years. As the hinges on the age of the ... .,: ,,' .' '-< >< :: > "., '" -',' respondent, we may the relevant portion of • . para 1 of the Advertisement ;;, . .' :,. ',' , . ., , . :,,':: ;:: i " 1. Researcb' QffJcer,,((jifCihi).:,' 04 (SC-O 1, . ST-O 1, GBC-1, Age upto 35

¶5In response to the aforesaid advertisement for the subject post, ;.:. : :. a prescribed application' fbini' re4uired"to be filled up by the respondent as a general category candidate. A copy of the same has been filed with this petition as Annexure AA-2. The said form . contains several columns. In clause 4, the respondent was required to mention his date of birth, which he did in the following manner:- Page 3 0/10 "a) Date of Birth

16.02.1970 (Based on Matriculation or School leaving certificate. An attested copy of the certificate must be attached). b)" Age as on 1st January of recruitment year: I Months

10.5 "

¶6The respondent participated in the written test and the interview conducted by the petitioner and ·oii"·the .basis "'of the recommendations r" " ' ' • .' ; '., • made by the Selection ·appeared at serial no.1 in the panel of the selected candidates prepared by the petitioner. Vide • l". ,: ,i. ) ,;', " :,," t'., Memorandum dated 15th . r,!he petitioner offered an . . ;", appointment to the Officer (Unani) "\/ .:L on an ad hoc basis, till furtheF:brdersLor till a regularly appointed candidate joins the post, whicheyer is earlier.' Similar Memorandums " . -", , . - l) .. :.: - were issued by the petitioner to the other three applicants who have " later on, been regularised on the subject post during the pendency of the Original Application. The respondent accepted the terms and conditions prescribed in the Memorandum and joined on the post of Research Officer (Unani) on an ad hoc basis. He continued on the Page 4 0[10 / ) subject position for over six years and finally approached the Tribunal with three others, seeking, regularization to the subject post. Counsel for the petitioner contended before the Tribunal that the respondent was already overage on the closing date of receipt of the application i.e. on 10th October, 2005 and he could not be' regularised to the subject post for this reason.

¶7Per contra, Ms.Oberoi, learned ,counsel for the respondent no.l had pointed out that the respondent waS working on the subject post 1 ,=,'" for a decade and refusal to', regulatise his service was discriminatory , . :' '.. inasmuch as three other similarly had been regularlsed by the petitioner w.e.f. 26th .. iQ14. She also stated that the .:,> advertisement itself date for determination -: . '.:' , . "J> '.: ',' >,1 .• . . ',:" .... , 9f the age of the candidate of the recruitment year' and nowhere did the said advertisement state Jhat the dosing date for "', .'-,', the receipt of the applicaticln,'w6hfd the crucial date for determining the eligibility viz. a viz. the age, which plea had been taken by the petitioner as a sheer after thought. PageS 0/10

¶8After considering the submissions made by learned counsel for the parties, the Tribunal allowed the Original Application filed by the· respondent in the following terms:- "7. Admittedly, the Advertisement No.1 of 2005(ibid) did not stipulate that the crucial date for determination of the age of the candidates shall be the closing date for receipt of applications. In terms of the Advertisement No.1 of 2005, the application form had to be obtained froin the Assistant Director (Admn.) of respondent _ no.2-CCRUM. As noted earlier, vide clause.4 of.. the prescribed application form, the candidate. . to mention hislher date of birth January ofrecrultment year. It is, thus;' 'appar¢nV:that respondent no.2-CCRUM ::.'daken a decision to determine the age:'ofthe'canClidates as on 1st January of the recruitment The applicant had correctly mentioned his;;:dat6:, of birth as 16.02.1970 '. •• ' t t'l, , " . and his age as year, i.e., 2005, as 34 He had not It is not the case of respondent subsequent to the issuance of the Advertisement No.01l2005, any other addedunmlcorrigendum was issued by them clarifying the.ciuc.ial d.8:te,for::determining the age of the candidates 'shall ·be 'tliedosing date of receipt of applications. Therefore, about a decade' after selection and appointment of the applicant and others on ad hoc basis, respondent no.2-CCRUM cannot be allowed to change the position and say that the crucial date for determining the age of the candidates shall be the closing date for receipt of applications: In the application form, enclosed with the Advertisement No.2 of 2012, respondent no.2 also required the candidates to indicate their date of birth and age as on Page 6 0/10

¶9l 1st January of the recruitment year. Respondent no.2-CCRUM only changed the application form when they issued Advertisement No.2 of2014 and required the candidates to mention therein the date of birth and age "as on the last date of receipt of application". Thus, it is clear that respondent no.2-CCRUM had been following the principle for determination of the age of the candidates as on the 1 st January of the recruitment year till 2012. In the above view of the matter, the decision taken by respondent no.2-CCRUM declining regularization of services of the applicant as Research Officer (Unani) with effect from 26.12.2014 is unsustainable in the eyes of law. The decision in Rakesh_Kumar Sharma Vs. State (NCT of DelhI). .. :-others (supra), being . .' " r ... . ) distinguishable on,: facts; , is ',of· no avail to respondent no'.2-CCRUM. . .. \ ' " _. ,,'

¶8In the light' of our 'above discussions, we hold and declare that,',', the ,:applicant is entitled to regularization of his:. as Research Officer (Unani) with 14, i.e., the date when the similarly placed persons, 'Siddiqui, Dr:Usama - Akram and Iif regularized by respondent no.2-;;CCRUM.( Accordingly, we direct respondent no.2-CCRUM to regularize the services of the applicant as Research Officet:.(Unani) with effect from all consequential benefits as have been granted to the aforesaid three persons." Aggrieved by the aforesaid judgment, the petitioner has filed the present petition.

¶10Mr. Sunil, learned counsel for the petitioner states that the Tribunal has committed a patent error by directing regularisation of _ Page 70[10 the respondent no. 1 for the subject post, having failed to appreciate the stand of the petitioner that the amended Recruitment Rules for the subject post prescribing a maximum age of 40 years as on 1st January of the Recruitment year, could not be made applicable to the respondent as he was appointed much prior to the amendment of the Recruitment Rules which were notified on 29th August, 2013. He submits that in view of the non-applicability of the Recruitment Rules to the respondent which .a,ut to the Tribunal, the impugned order ought not -, : " ;' ..

¶11Ms.Oberoi, learned te'spondent no.l, opposes the. " , , f' \1 present petition and states that, the';;'aPi¢hdment to the Recruitment Rules at a later date als..o· petitioner has always , ' " . .' :, • considered the age as on recruitment year and for this reason, Advertisement no.1I2005 did n()tmention any date on .::.:: ;' which the criteria of it only stipulated that the age of the applicant must not be more than 35 years. She further points out that the prescribed form required to be filled up by the applicant pursuant to the advertisement, specifically required the Page 8 0[10 applicant to indicate the age 'as on r l January of the Recruitment Year'.

¶12We have carefully considered the arguments advanced by learned counsel for the parties, perused the impugned judgment and the documents placed on record and are of the view, that there is no illegality, arbitrariness or infirmity in the impugned order. The Tribunal has rightly held that the petitioner had taken a conscious decision to determine the age of the 'candidate as on 15t January of the recruitment year i.e. of the,year 2POS':;,Once the respondent had ,'"\, . correctly mentioned his birth','as on 1 5t January of the recruitment year according to age was thirty four years and _. . , . ' . ten and a half months, appointed to the subject 'j,:, :.-::/'.:')" ' post and continued to it cannot be stated that he had withheld any material information fr()m the petitioner. The . ,'I very fact that the petitioner" lia(I'dulY '-processed the case of the respondent no.1 and appointed him on an ad hoc basis, which appointment has continued till date, shows that the petitioner had also always considered the age criteria with reference to 15t January of the recruitment year. ltVP(C) No.11407/2017 Page 9 0[10 /0

¶13In the above facts and circumstances, we are of the opinion that the impugned order does not suffer from any infirmity which would merit any interference in the petition, which is, accordingly dismissed in limine, being devoid of merits. ! -.... DECEMBER 20, 2017/aa ...... :,' , . " ,' . .!. .. :.: . WP(C) No.11407/2017 . . . \';.- (HIMA KOHLI) JUDGE Page 100/10