Central Council for Research in Unani Medicine v. Dr. Merajul Haque Anwarani

2. We 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 respond~nt no.1 (hereinafter referred to as the "respondent") herein'on the groundthat,he was already overage,,'.. -,); " as on 10 th October, 2005, which ~~~ thte': closing date fo~ receipt of,. • 't 1 " -.,..'. applications and therefore, was:i,neligible',to apply for selection to the, l' subject post., ~.:',:r, f>,;,>

3. In the impugned ora'ei:d~t6d",'tSt~~:,May, 2017, the Tribunal rejected the plea afthe petiti;'netihat;~¢';ki~andentwas ineligible far.,' ".._...., appointment to the subject post for the reasorl,that on the closing date for receipt of the applications"i(~;:' 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 WP(C) No.11407/2017 Page 2 0[10 ) which the servIces of three other similarly placed officers were regularized by the petitioner.

4. Before dealing with the submissions of the learned counsel for the petitioner, we may elucidate the relevant facts. On 1st 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.issue'befol"e;,'lJ~ hinges on the age of the....,:,,'.' '-< ><:: >".,~~. '" -',' respondent, we may reprodu;ce','hFr~:~rib~lo~ the relevant portion of • 1. ~!.' para 1 ofthe Advertisement n6J/2bO?':~':;;,..':,. ',',:,,~~,~.~..,'.:~>.~,:'J'j,.:,,'::;:: /··;~1:~·';i "1. Researcb'QffJcer,,((jifCihi).:,'04 (SC-O[1],.ST-O[1], GBC-1, Gen.:.O))${qte'·j~lRhYi{s.8000-275-13500 Age upto 35 yedrs::;:,:P::'~.:~_;';-;;~-{,.'~'-·;'-

5. In response to the aforesaid advertisement for the subject post,;.:.::. ~ a prescribed application' fbini'··~~S~-.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 ofbirth, which he did in the following manner:- WP(C) No.11407/2017 Page 3 0/10 "a) Date ofBirth 16.02.1970 (Based on Matriculation or School leaving certificate. An attested copy ofthe certificate must be attached). b)" Age as on 1st January ofrecruitment year: IMonths 10.[5] "

6. The 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 Commi~ee,' ~i:s\:rhi~~ ·appeared at serial no.1 in the panel of the selected candidates prepared by the petitioner. Vide • l". ~.,:,i. ) 1,;', ":,," t'., Memorandum dated 15 th Jub~,~)~..20~QJ); r,!he petitioner offered an.. ~i·:r~·~,~,~}j~~:'~·'·:" ~: '::':':;)<~::~.-:'~::;", appointment to the respond~p.t""Q¥"ihe"Ji[9],$f6(~esearch Officer (Unani) "\/.:LN:::":~·1\;<":'~;:::!\y 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 WP(C) No.11407/2017 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.

7. Per 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 plac~d~:fficers had been regularlsed by the petitioner w.e.f. 26th Dece;~ber;..iQ14. She also stated that the.:,> advertisement itself stipulat~~r'th~i~;the"-6~~ial date for determination -:. '.:',."J> '.:.~~ ','>,[1] ~".•..',:",:~/~....""~~~'~'" ~':~/":l':'-,9f the age of the candidate wa'~~_'r!:JJ1/fu?iry of the recruitment year' and nowhere did the said advertisement stateJhat the dosing date for "',.'-,', the receipt of the applicaticln,'w6hfd br;t~k~~';as 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. WP(C) No.11407/2017 PageS 0/10

8. After considering the submissions made by learned counsel for the parties, the Tribunal allowed the Original Application filed by the· respondent in the following terms:-

WP(C) No.11407/2017 Page 6 0/10 9. l 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 1st 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)...~hd:-others (supra), being..'" r... ~..) distinguishable on,:facts;,is ',of·no avail to respondent no'.2-CCRUM....\ ' " _.,,'

8. In the light' of our 'above discussions, we hold and declare that,',', the,:applicant is entitled to regularization of his:. s~rvic:¢s as Research Officer (Unani) with ~~feqF::;froih~}(~2.2014, i.e., the date when the serVtcesi:otJhr:~eI:other similarly placed persons, nam¢Jy,-pKJ~y~dlJ'll,an[1] 'Siddiqui, Dr:Usama - Akram and Iif.M~11:~;:!~Jam:;L~rwere 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 26.12~20i[4],_aIlCi;~'gr~ii.t.'him- all consequential benefits as have been granted to the aforesaid three persons." Aggrieved by the aforesaid judgment, the petitioner has filed the present petition.

10. Mr.Sunil, learned counsel for the petitioner states that the Tribunal has committed a patent error by directing regularisation of _ WP(C) No.11407/2017 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 ofthe non-applicability of the Recruitment Rules to the respondent which w:a.~duly:::p?int~,d.a,ut to the Tribunal, the impugned order ought not toJia~ebe~~:p~&~ed. -,: ";'..~,.'"

11. Ms.Oberoi, learned couns~lforth~ 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·.§ij~~~s::~: ~h~:{(t~e petitioner has always, ' "..' ~:,':'~i ~I'" ~h' • considered the age as on lirJdbi1a~~~~'rhlrecruitment year and for this reason, Advertisement no.1I2005 did n()tmention any date on.::.::;' which the criteria of agew~s t61Se\.~xarriiri~d-'a~d 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 WP(C) No.11407/2017 Page 8 0[10 applicant to indicate the age 'as on r l January of the Recruitment Year'.

12. We 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 ofthe 'candidate as on 15t January of the recruitment year i.e. of the,year 2POS':;,Once the respondent had,'"\,. correctly mentioned his d~te~~ birth','as on 15t January of the recruitment year according to ~hi,(;hp'~s age was thirty four years and _..,.'.'~. ten and a half months, base.d'wb'e~~oh~he',:Wfl~ appointed to the subject,:~/" 'j,:, -'<;~~:'":.-::/'.:')" ' post and continued to serve-f()rJ~e'~_t_e,tj:y'ea.is, 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

13. In 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 pre~ent 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