Khan, (J)

1. Petitioners are seeking regularisation of their services on LDC/Stenographer post without being subjected to a competitive examination to be held by Staff Selection Commission (SSC) - a requirement under rules for filling of such posts on regular basis.

2. Petitioners were engaged between 1987 and 1989 on adhoc/daily wage basis against the post of LDC/stenographer through Employment Exchange after they were screened and put to typing and stenography test in National Waste Lands Development Board. They were initially so engaged/appointed for 120 days or till regular incumbent joined the post whichever was earlier. However, neither any extension order was passed to extend their tenure nor were steps taken to fill up the posts help by them substantively under rules and as a result they continued working against the posts for as good as 10 years. Meanwhile their services were shifted to National Forestation & Eco Development Board under Ministry of Rural Development and their scales of pay also fixed.

3. Petitioners say that they apprehended termination and filed OA Nos. 17, 18 & 19/98 for direction to respondents to regularise their service on the ground that they should be treated to have been regularly appointed under the rules even though they had not taken or qualified the SSC examination and that they were also entitled to regularisation on the analogy of regularisation of some similarly placed persons. They complain that they were not afforded any opportunity of taking the SSC examination when they had asked for it and that they could not be held responsible for respondents failure to take steps to make regular appointment to these posts.

4. Tribunal turned down their plea and required them to take the requisite examination after relaxation in their age bar.

5. Petitioners have now filed this petition challenging Tribunal order on the plea that it had failed to appreciate their case in correct perspective by assuming that their engagement/appointment was de hors the rules and that they had to be subjected to SCC examination necessarily along with other eligible candidates.

6. Respondents case is that petitioners were working against cadre posts under the Central Secretariat Stenographers Service and Central Secretariat Clerical Service, which were liable to be filled up through candidates to be nominated by Department of Personnel and Training on their qualifying the SCC examination under Rules. But DOPT had already rejected their request for age relaxation to make them ineligible to paper in the SCC examination. It is admitted that petitioners had taken some tests at the time of their engagement but these were only skill tests and no substitute for SCC examination and they were engaged and continued because of non-availability of sufficient number of suitable nominated candidates. It is pointed that relaxation of eligibility criteria, as contained in Rule 12(1)(b) of Central Secretariat Clerical Service Rules was to be granted by the Department of Personal & Training which had already rejected their request for relaxation of age bar.

7. What emerges is that post of LDC/stenographer is a cadre post to be filled up in accordance with two sets of rules namely Central Secretariat Clerical Service Rules 1962 and Central Secretariat Stenographers Service Rules 1969 which prescribe by and large a similar mode of appointment to the post and amongst other things stipulate that 90% of the vacancies, as may be determined by DOPT, are to be filled by direct recruitment on the basis of competitive examination held for the purpose by SCC. It also comes that DOPT had not nominated any qualified candidates for filling up these posts constraining respondents to make adhoc/daily wage arrangements which in some cases were also suitably adjusted.

8. Petitioners claim that though they were not nominated by DOPT and had not qualified the SCC examination but since they were engaged/appointed because of non-availability of qualified nominated candidates by DOPT, they be treated appointed in accordance with provisions of proviso to Rule 12(1)(b) of the Central Secretariat Clerical Service Rules and, Therefore, their appointment could not be said to be in breach of the Rules. Since provisions in both sets of Rules are similar, it would suffice to extract the relevant proviso of Clerical Rules which reads thus:-

"(b) Ninety percent of the vacancies or such higher percentage as may be determined by the Central Government in the Department of Personnel and Administrative Reforms in the Ministry of Home Affairs in accordance with the proviso to clause (a) shall be filled by direct examination held for the purpose by the Staff Selection Commission.

Provided that to the extent a sufficient number of qualified candidates of the competitive examinations referred to in clauses (a) and (b) are not available for appointment on the results of such examinations, the vacancies may be filled, provisionally or on regular basis, in such manner as may be prescribed by the Central Government in the Department of Personnel and Administrative Reforms in the Ministry of Home Affairs."

9. Petitioners assert that they should be deemed appointed on regular basis under this proviso because it was respondents own case that they were so appointed due to non-availability of nominated qualified candidates by DOPT and to that extent their engagement/appointment could not be said to be irregular or having been made contrary to rules to warrant denial of regularisation to them.

10. This plea may sound a little far fetched but it cant be also overlooked that it was respondents own inaction that they had allowed petitioners to continue for as long as 10 years without requiring them to qualify the SSC examination or by filling up the posts substantively through DOPT nominated qualified candidates. They had neither sought DOPT qualified nominated candidates nor treated petitioners appointed on regular basis in terms of proviso to Rule 12(1)(b) creating an anomalous situation in the process.

11. Therefore, considering that respondents had failed to fill up the posts held by petitions substantively for as good as 10 years and had in the process foreclosed all avenues of employment to them after they had become age barred and disabled to seek any alternative employment and that they had, on their own showing, made adjustments by regularising the services of similarly situated persons, it would be unjust at this stage to oust petitioners summarily for their failure to take SCC examination and of their ineligibility created by their age bar now for such examination. This anomalous position which was of respondents own making, could, in our view, be remedied if petitioners could be considered for regularisation of their services in relaxation of rules as one time exception regard being had to the fact that both sets of rules provided such power of relaxation on the competent authority vide Sections 24 and 46. If there was any hitch in this, at lease their age bar could be relaxed to enable them to take the examination.

12. We are conscious of the legal position that adhoc/temporary appointments made in breach of the recruitment rules were not liable to be regularised nor was power of relaxation of rules exercisable where it was not conferred such power by Rules. But the present case warranted some viable arrangement to be made to the mutual satisfaction of both sides. This petition is accordingly disposed of by providing as under:-

"Petitioners may make a representation to the competent authority of relaxing the rules and for regularisation of their services as one time exception. The concerned authority, on receipt of such representation, shall examine their case in terms of proviso to Rule 12(1)(b) of Central Secretariat Clerical Service Rules and the identical provision in other set of rules and taking in regard peculiar facts and circumstances of the case and pass appropriate orders for regularisation of petitioners services or alternatively for relaxing their age bar to enable them to take the SCC examination. Meanwhile, status quo shall be maintained in respect of their service status till such orders are passed and should these go against them, they shall be allowed to remain at their posts for one month to enable them to seek any further legal redressal.