ORDER
V.K. Agnihotri, Member (A)
1. In this case the applicant has challenged the Memo of the respondents dated 29.12.2006 whereby his request for relaxation of age for recruitment to the post of Dialysis Technician in Dr. R.M.L. Hospital, New Delhi has been rejected.
2. The brief facts of the case are that the applicant was appointed as Dialysis Technician in Dr. R.M.L. Hospital, New Delhi on ad hoc basis for a period of one year w.e.f. 19.04.2004. His services were accordingly terminated by an order dated 19.04.2005. Thereafter, on 12.05.2005, respondents notified the Dialysis Technician (Group ‘C’post) Recruitment Rules, 2005 [Recruitment Rules, for short]. As per the Recruitment Rules, the age limit for direct recruitment is between 18 to 25 years, which is relaxable for Government servant upto 40 years. This was followed by an advertisement dated 30.07.2005 for filling up of the post of Dialysis Technician. Thereupon, the applicant, along with another, filed OA No. 2139/2005, inter alia, seeking relaxation of age and consequential appointment as Dialysis Technician. During the pendency of the OA, this Tribunal directed the respondents to allow the applicants to participate in the selection process on provisional basis. The applicant was accordingly interviewed. The said OA was finally disposed of by an order dated 09.05.2006 with the following direction:
10. In the present OA, the question of age relaxation is to be considered at the stage where the applicant having worked for one year earlier on has already succeeded in the selection on merit wherein he appeared on the interim directions of the Court. In view of the above discussion, this appears to be a case in which the scales would tip in favour of taking a positive view of the matter. The respondents are, therefore, directed to seek the consideration and approval of the competent authority for the grant of concession in age to applicant no. 1 in relaxation of the rules, keeping in view our observations above. Appropriate orders be passed within a period of three months from the date of receipt of this order. The application is disposed of as above. No costs.
As per the directions of this Tribunal, the respondents have considered the case of the applicant, in consultation with the appropriate authorities, i.e. Department of Personnel and Training, and Ministry of Health and Family Welfare, culminating in issue of the impugned Memo dated 29.12.2006.
3. The basic facts of the case are that the applicant had put in ad hoc service of one year as Dialysis Technician and his services were terminated on 19.04.2005, i.e. before the issue of the Recruitment Rules dated 12.05.2005 and the subsequent advertisement dated 30.07.2005. His interview was taken by the respondents in terms of the interim direction of this Tribunal and, therefore, it did not create any vested right in favour of the applicant. Thus the ratio of the judgment of the Hon ble Supreme Court in the case of State of Bihar and Ors. v. The Secretariat Assistant Successful Examinees Union, 1986 and Ors., is not applicable to the present case. Clearly, in the present case the impugned order of the respondents states that the benefit of age relaxation is available only to departmental candidates, who have rendered not less than three years continuous service. The applicant, having not rendered three years continuous service, is not eligible for the benefit of age relaxation and, therefore, cannot seek a direction to the respondents to exercise their power to relax the upper age limit for his appointment, in terms of Rule 5 of the Recruitment Rules ibid.
4. Most of the averments made by the applicant in the present OA were already examined in the earlier OA No. 2139/2005 (supra) (Avnish Kumar and Anr. v. Government of India and Anr.) and this Tribunal had arrived at the final findings in that regard:
5. We have heard the learned Counsel for both sides and perused the pleadings. Admittedly the selection of the applicants by an interview on the lines of the proposed RR was on ad hoc basis and not in accordance with the RRs which were issued later on wherein the age limit as well as the mode of recruitment were quite different from those in the RR that was proposed. The advertisement dated 30.7.2005 does not support the contention of the applicants that the appointment was to be made on ad hoc basis again. It cannot be said that the appointment by Deputation (including short term contact)/ Absorption could be construed to mean ad hoc appointment because such appointment was to be made in accordance with the RRs. Besides, there are no acceptable reasons advanced by the applicants as to why a short term contract per se should be equated with an ad hoc appointment. Since the RRs have not been challenged there is no scope for us to go into that question.
6. Having carefully gone through the rules and instructions annexed by the respondents with the counter reply, we have no doubt that the stand taken by them is in conformity with the same. The authorities were well within their rights to evolve the RRs as considered appropriate and there was no compulsion on them to adhere to the proposed RRs received by them from the Hospital. The Hon ble Supreme Court in State of Andhra Pradesh and Anr. v. Sadanandam and Ors. has held:
The mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgement over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive.
As such we find no sufficient grounds to accede to the prayer of the applicants that the advertisement dated 30.7.2005 and the order of termination of services dated 19.4.2005 should be quashed and the respondents directed to reinstate the applicants in service.
5. We have heard the learned Counsel for the applicant at length and perused the material on record.
6. Taking the totality of facts and circumstances of the case into consideration, we come to the conclusion that the applicant has failed to establish his vested right for being considered for appointment as Dialysis Technician by relaxing the upper age limit in his favour in terms of Recruitment Rules ibid….
7. In the result, the OA is devoid of merit and is, therefore, dismissed in limine.