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2019 DIGILAW 1543 (HP)

Sher Singh v. Union of India

2019-10-18

DHARAM CHAND CHAUDHARY, L.NARAYANA SWAMY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. The petitioner, an ex-service man after having discharged from the Indian Army on completion of qualifying service on 31.10.2009, as is apparent from the certificate of discharge, Annexure P-2, was appointed as Chowkidar vide order dated 15.07.2014, Annexure P-3 under the Ex-servicemen Contributory Health Scheme (hereinafter referred to as the 'scheme' in short) in ECHS Polyclinic Type-D, Dehra Gopipur, District Kangra, initially for a period of one year. He executed agreement, Annexure R-2 dated 1.8.2014. Subsequently, extension upto 1.8.2016 was granted in his favour on execution of fresh agreement, Annexure R-3 by him. The 3rd and last extension was granted to him till he completes the age of 55 years vide Annexure R-4 to the reply. 2. The respondents have advertised the post of Chowkidar occupied by the petitioner vide advertisement, Annexure P-4. The petitioner aggrieved by the issuance of fresh advertisement to fill-up the post of Chowkidar occupied by him has preferred this writ petition with the following prayers: "(i) That the impugned advertisement contained in Annexure P-4 may be quashed and set aside. (ii) That the respondents may be directed to allow the petitioner to continue against the post of Chowkidar in Government ECHS Polyclinic, Dehra, Gopipur, District Kangra." 3. The relief has been sought on the grounds inter-alia that he is working as Chowkidar to the entire satisfaction of the respondents. There is no complaint against him. Also that, in a similar case registered as CWP No. 4 of 2017 titled Bir Pal vs. Union of India and others, this Court by way of an interim order has restrained the respondents from making fresh selection. Also that, against the dismissal of the Civil Writ Petition No. 9093 of 2014 titled Pawan Kumar vs. Union of India vide judgment dated 2.12.2016, SLP No. 36359 of 2016 titled Sonu Kumar vs. Union of India was filed. The Apex Court vide order dated 15.12.2016 has ordered to maintain status quo and the respondents were directed not to make any fresh appointment to the post(s) held by said Shri Sonu Kumar. The petitioner allegedly has been selected by a duly constituted Selection Committee, therefore, appointment of respondent No. 4 in his place is stated to be wrong, illegal and arbitrary. 4. The petitioner allegedly has been selected by a duly constituted Selection Committee, therefore, appointment of respondent No. 4 in his place is stated to be wrong, illegal and arbitrary. 4. The respondents in reply to the writ petition while admitting that the petitioner was appointed as Chowkidar vide order, Annexure P-3 has stated that the maximum age for employment under the scheme is 55 years. As per instructions dated 25.2.2014, Annexure R-1 of the Government of India, the maximum period of such appointment is two years. Therefore, at the time of appointment of an ex-service man, his age should be 53 years. The petitioner was selected as Chowkidar on 10.4.2014, at a stage when he was 52 years and 4 months old. He executed the agreement, Annexure R-2 on 1.8.2014 and started working as Chowkidar in ECHS Polyclinic, Dehra Gopipur, District Kangra. The contract was extended further by 12 months w.e.f. 2.8.2015 to 1.8.2016 vide fresh agreement, Annexure R-3 executed by the petitioner. He, however, was given 3rd extension w.e.f. 5.8.2018 till attains the age of 55 years vide order, Annexure R-4. The petitioner has now attained the age of 55 years long back on 22.4.2017 and, as such, he is not entitled to continue any further as Chowkidar. The post has rightly been re-advertised vide Annexure P-4. It is denied that the case of the petitioner is identical to that of Bir Pal and Sonu Kumar. The issue involved in those cases is stated to be the termination of the contract after the completion of tenure, however, in the case of the petitioner, he has become ineligible as per procedure to hold the post of Chowkidar after attaining the maximum age of 55 years. The writ petition, as such has been sought to be dismissed. 5. The application registered as CMP No. 8698 of 2017 has been filed by the respondents for vacation of interim order on the ground raised in reply to the writ petition and also that the interim order dated 21.04.2017 has been ordered by the Apex Court in a case where the issues raised are completely different and there is no challenge to that part of the scheme prescribing 55 as the maximum age to continue in the employment under the scheme. 6. 6. We have heard learned counsel for the petitioner and learned Assistant Solicitor General of India and also gone through the record of the case. 7. The Ministry of Defence, Department of Ex-service Men Welfare, New Delhi has issued the circular dated 25.2.2014, Annexure R-1 conveying thereby the sanction of the President for the procedure to be followed in contractual employment of staff for ECHS Polyclinic. Item No. 5 in the tabulated information, the part and parcel of the procedure provides for employment of Chowkidar under the ECHS Polyclinics. The maximum age for employment has been mentioned as 53 years, whereas, the appointment on contractual basis upto 55 years. The petitioner, admittedly, has attained the age of 55 years on 21.04.2017. The employment under the scheme as per Annexure P-1 will normally be for a period of two years at the maximum with extension upto the age of superannuation subject to review of the conduct and performance. The age of superannuation as per procedure, Annexure R-1 is 55 years as there is no provision of further extension beyond 55 years. Learned counsel representing the petitioner has failed to spell out any other and further age of superannuation under the scheme, if it is not 55 years. The petitioner started working as Chowkidar after execution of first agreement, Annexure R-2 on 1.8.2014. His employment was further extended for a further period of 12 months w.e.f. 20.8.2015 to 1.8.2016 on execution of fresh agreement, which is Annexure R-3. Third extension has also been given to the petitioner on and w.e.f. 5.8.2016 till he completes the age of 55 years. Admittedly, he has completed the age of 55 years on 22.04.2017. He, therefore, is not entitled to hold the post of Chowkidar beyond the age of 55 years. Anyhow, pursuant to the interim order passed in this writ petition on 21.04.2017. He is still continuing as Chowkidar irrespective of more than 57 years of age. The petitioner, therefore, cannot be said to have any complaint against the initiation of fresh process vide Annexure P-4 for appointment of his substitute as by now he is over age. Anyhow, pursuant to the interim order passed in this writ petition on 21.04.2017. He is still continuing as Chowkidar irrespective of more than 57 years of age. The petitioner, therefore, cannot be said to have any complaint against the initiation of fresh process vide Annexure P-4 for appointment of his substitute as by now he is over age. As regards the case of Sonu Kumar, pending disposal in the Apex Court, nothing has been brought to our notice to belie the stand of the respondents in reply to the writ petition and application, CMP No. 8696 of 2017 that the question of maximum age of 55 years provided under the scheme for continuation in employment as Chowkidar is not involved therein. 8. In view of what has been said hereinabove, there is no merit in this writ petition and the same is accordingly dismissed. The application, CMP No. 8696 of 2017 also stands disposed of.