Civil Writ Petition No. 14206 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 14206 of 2010 Date of decision:- 29.8.2011 Gurmeet Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. K.L. Arora, Advocate for the petitioner. Mr. Ram Lal Gupta, Addl.A.G. Punjab. RITU BAHRI J. Petitioner is seeking writ of certiorari mandamus directing the respondents to consider the petitioner for the post of Junior Engineer (Civil) in Sports quota. The petitioner has been working as Pump Operator since 1.6.1993 and has served upto 17 years approximately with the Water Supply and Sanitation Department, Punjab. He applied for the post of Junior Engineer (Civil) against Sports Quota and necessary testimonials alongwith demand draft was sent to the authorities. i.e. the Director C-DAC, Sector A-34, SAS Nagar, Mohali. The petitioner appeared for the written test held on 28.3.2010 in Punjab University, Chandigarh. Total 986 candidates appeared for the written test and the result was declared on 31.3.2010. Annexure P-5 is the result showing the petitioner Gurmeet Singh with 26 marks. Parminderjit Singh, who has secured 24 marks had been given appointment. After appearing in the councelling Civil Writ Petition No. 14206 of 2010 -2- petitioner's case has been rejected on the ground that he was over aged. Mr. K.L. Arora, counsel for the petitioner has vehemently argued that the petitioner has been serving with the Department as Pump Operator since 1.6.1993 i.e. from almost 17 years, therefore, he is entitled to relaxation of age as per advertisement dated 4.12.2009 (Annexure P-1). Following conditions have been mentioned regarding age in the advertisement :- “AGE (I) A candidate should not be less than 18 years and more than 35 years of age as on 15.1.2010. (II) Relaxation in Age Upper age limit shall be 45 years in respect of persons already serving Govt. of India or Punjab Govt. or any other State Govt.” He has referred to the judgment of the Supreme Court in Satya Prakash and others versus State of Bihar and others 2010(2) SCT 243 and contends that the petitioner has served for 17 years and is now 42 years and three months and has no chance left with for any Government service if benefit of age relaxation not given to him. Applying the ratio of this judgment, he is entitled to age relaxation. On the other hand Mr. Ram Lal Gupta, counsel for the State has argued that the petitioner was working on muster roll basis as daily wager and he cannot be considered as a regular employer in the State Government, therefore, the benefit of age relaxation can only be given to regular employees of the State of Punjab or any other State. Counsel for the State has placed reliance on Union Public Service Commission versus Girish Jayanti Lal Vaghela and others (2006) 2 SCC 482 to contend that services rendered without following due process of selection as contemplated under Article 16 of Civil Writ Petition No. 14206 of 2010 -3- the Constitution of India cannot be treated as regular service and has referred to paragraph 12 of the judgment, which is reproduced as under :- “A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.” Hence, he is not entitled to any relaxation under the statutory provisions of relaxation of age limit for Government servants. I have heard learned counsel for the parties and have gone through the case file carefully. From the facts of this case it is not disputed that the petitioner was working as Pump Operator with the Department for the last 17 years. Even though the appointment of daily wager is not as per the procedure prescribed and contemplated under Article 16 of the Constitution of India, the petitioner is seeking the benefit of age relaxation as per advertisement dated 4.12.2009 (Annexure P-1). This issue has came up for hearing before the Supreme Court in Satya Prakash and others versus State of Bihar and others (supra). In that case the appellants had been worked on daily wages for the last 10 years and was seeking benefit of regularization. The Supreme Court had an occasion to examine the case Secretary, State of Karnataka and others versus Umadevi and others 2006 (2) SCT 462 in which Constitution Bench has drawn five distinctions in daily wagers and those who were appointed irregularly. There was non compliance of some procedure in the selection process. In paragraph Civil Writ Petition No. 14206 of 2010 -4- 44 of Umadevi's judgment it has been observed as under :- “One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles, settled by this Court in cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover or orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date.” The Supreme Court gave a direction for regularization of service of daily wagers but in a process of regular selection a direction was given to give age relaxation. In Umadevi's case permission was granted to such persons to participate in the selection process giving the age relaxation and giving the weightage to their work and time spent with the Department. The ratio of the judgment Satya Prakash and others versus State of Bihar and others (supra) is applicable to the facts of the present case as the petitioner has been in service for the last 17 years, he is not seeking the benefit of regularization. He has secured his merit in the Sports Quota by securing 26 marks. The last candidate, who has been given appointment has secured only 24 marks and the petitioner was being denied appointment on the ground that he is over age. He Civil Writ Petition No. 14206 of 2010 -5- is of 42 years of age and this is the last chance in his life to get regular appointment. Applying the ratio of Satya Prakash and others versus State of Bihar and others (supra) this writ petition is allowed. The petitioner is entitled to benefit of relaxation of age upto 45 years as per advertisement. A direction is given to the respondents to consider the petitioner eligible for the post of J.E. (Civil) and pass an appropriate order appointing the petitioner. This exercise shall be completed within a period of three months from the date of receipt of certified copy of this order. 29.8.2011 ( RITU BAHRI ) Vijay Asija JUDGE