IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 OP (CAT).No. 647 of 2010(S) ------------------------------------- OA.257/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH .................... PETITIONERS: 1. UNION OF INDIA,REP.BY THE SECRETARY TO THE MINISTRY OF DEFENCE, NEW DELHI. 2. CHIEF OF THE AIR STAFF, AIR HEADQUARTERS, NEW DELHI. 3. THE COMMANDING OFFICER, 29 P & S (U), AIR FORCE, SURAKSHA COMPLEX,THURAVIKKAL PO, THIRUVANANTHAPURAM-31. 4. THE SENIOR ADMINISTRATIVE OFFICER, 17 FSBU, AIR FORCE, AIR FORCE STATION, BEACH POST OFFICE, THIRUVANANTHAPURAM. BY ADV. SRI.T.SANJAY, CGC RESPONDENTS: 1. V.JAYAN, AGED 48 YEARS, S/O.VARGHESE, WATCHMAN, 29 P & S (U),INDIAN AIR FORCE, SURAKSHA COMPLEX,THURUVIKKAL PO,TRIVANDRUM-31, RESIDING AT TC 6/290,CHALA CHAKKARA PUTHEN VEEDU, KARIMANKULAM, VATTIYOORKAVU PO, TRIVANDRUM-695 001. 2. THE CENTRAL ADMINISTRATIVE TRIBUNAL, REP.BY THE REGISTRAR, ERNAKULAM BENCH, KOCHI-17. ADV. SRI.M.A.SHAFIK FOR R-1 THIS OP (CAT) HAVING COME UP FOR ADMISSIONON 06/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.Basheer & P.Q.Barkath Ali, JJ. --------------------------------------------------- O.P.(CAT)No.647 of 2010 --------------------------------------------------- Dated this the 6th day of April, 2011 JUDGMENT Basheer, J. Petitioners impugn Exhibit P3 order passed by the Central Administrative Tribunal, Ernakulam Bench in this original petition filed under Articles 226 and 227 of the Constitution of India. By the impugned order, the Tribunal has directed the petitioners to regularise the service of respondent No.1 as Group-D Watchman with effect from the date on which he was appointed against the said post in the year 1998. 2. It is beyond controversy that respondent No.1 was initially appointed as Seasonal Anti Malaria Lascar (Temporary) (SAML) on May 16, 1994 at the Air Force Station, Thiruvananthapuram. It is on record that his name was sponsored by the Employment Exchange on a requisition made by the Appointing Authority. It is also the admitted position that respondent No.1 was appointed as a Watchman (Temporary) in Group-D category with effect from April 1, 1998. He is even now continuing in service as Watchman. His grievance before OPCAT 647/10 2 the Tribunal was that he was not being regularised without any justifiable or valid reasons. 3. It was contended by the petitioners before the Tribunal that service of respondent No.1 could not be regularised since his initial recruitment as an SAML was by itself irregular, in as much as, at the time of his entry in service, he was over aged by two years and one month. In other words, respondent No.1 had completed 32 years and one month as on May 16, 1994, his date of birth being July 20,1962. For this purpose, petitioners relied on clause (d) of Exhibit P2 communication dated March 31, 2006 issued by Air Head Quarters, New Delhi. The said clause is extracted hereunder: “The candidate must be within the prescribed age limit on the day of initial engagement, i.e. up to 25 years for General, 28 years for OBC and 30 years for the candidates of SC/ST, if they have to be regularised against Gp 'D' post.” 4. Of course, learned counsel for the petitioners has now raised a further contention that going by clause (e) in Exhibit P2 communication, an SAML engaged by the Unit should be deployed only to Anti Malaria activities. We will deal with this contention a little later. 5. Any how, the Tribunal, after considering the rival contentions of the parties, held that going by the procedure prescribed for filling OPCAT 647/10 3 up Group-D posts, there was no reason why respondent No.1 should not be granted age relaxation equivalent to the period for which he had worked continuously as an SAML. 6. In this context, it may be profitable to refer to sub-clause (iii) of clause (4) in the Scheme 1997. The said clause reads thus: “SAMLs would be allowed age relaxation equivalent to the period for which they worked continuously as SAMLs.” 7. As has been noticed already, respondent No.1 had worked continuously as an SAML from May 16, 1994 till March 31, 1998, viz., for nearly three years and ten months. The case of the petitioners is that respondent No.1 was over aged to the extent of 761 days at the time when he joined the service as an SAML and therefore, his initial engagement itself was irregular. The Tribunal, while considering clause (iii) in the Scheme referred to above, took the view that there is no reason why respondent No.1 should not be given the benefit of relaxation for the period equivalent to the period he had worked continuously as an SAML. 8. However, it is contended by the learned counsel for the petitioners that going by the instruction issued by the Air Head Quarters in Exhibit P2, the service of respondent No.1 could not be regularised, since, as on the date of entry, he was over aged by two OPCAT 647/10 4 years and one month. It is further pointed out by the learned counsel that the Air Head Quarters had issued strict instructions to its subordinates to ensure that the Scheme was implemented in letter and spirit and no deviation would be countenanced. The case of respondent No.1 was considered by the Air Head Quarters and rejected, as could be seen from the communication dated July 24, 2006. Learned counsel has also invited our attention to Exhibit P4 communication issued by the Ministry of Defence, Government of India on December 12, 2001, in which, it has been clarified by the Ministry that those SAMLs, who had been appointed prior to May 1997 (the date on which the Scheme was introduced for the first time), would be given “one time relaxation”. In short, the contention of the learned counsel is that respondent No.1 cannot aspire for regularisation in service, since, as on the date of his entry in service itself, he had crossed the maximum age limit of thirty years. Respondent No.1, being a member of Scheduled Caste community, had already got the benefit of relaxation. 9. We have carefully perused the relevant materials available on record and the order impugned in this original petition. Petitioners do not have a case that the procedure prescribed in the Scheme for filling up Group-D posts among those employees who are already in service is not applicable in the case on hand. To put it differently, it OPCAT 647/10 5 cannot be contended by the petitioners that sub-clause (iii) of Clause (4) in the Scheme would not come to the aid of respondent No.1. The above clause, as we have already noticed, would clearly indicate that an SAML can be granted age relaxation equivalent to the period for which he had worked continuously in that capacity. Respondent No.1 had worked as an SAML for more than three years and ten months. Even assuming his initial recruitment was bad in the eye of law, since he was over aged, it cannot be said that he would not be entitled to get the benefit of relaxation as envisaged in sub-clause (iii) of clause (4) of the Scheme. In that view of the matter, we do not find any error or illegality in the view taken by the Tribunal in holding that respondent No.1 is entitled to get the benefit of age relaxation in tune with the clause referred to above. 10. Coming back to the other contention raised by the petitioner that an SAML engaged for the Anti Malaria activities cannot be deployed to any other duty. It may at once be noticed that respondent No.1 was appointed as a Watchman way back in 1998 itself. Petitioners had also issued a Permanent Pass to respondent No.1 while appointing him as a Watchman and he was deployed in 29 P&S Unit, Air Force at Thiruvananthapuram. Annexure-7 order is a true photocopy of the relevant pages of the Permanent Pass issued by the petitioners to respondent No.1. As rightly pointed out by the learned OPCAT 647/10 6 counsel for respondent No.1, petitioners had never raised the above contention either before the Tribunal or in the memorandum of original petition. 11. Having regard to the entire facts and circumstances of the case, we do not find any reason to interfere with the order passed by the Tribunal. The original petition fails and it is accordingly dismissed. (A.K.Basheer, Judge) (P.Q.Barkath Ali, Judge) tkv