V.P. Nirmala v. Central Board of Excise and Customs and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940** ## **OP (CAT).No. 3384 of 2013** **ORDER IN OA 331/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 25-06-2013** ## **PETITIONER/APPLICANT:** **V.P.NIRMALA, D/O.LATE GOVINDAN NAIR, AGED 51 YEARS, WORKING AS SWEEPER (DAILY WAGES), CALICUT COMMISSIONERATE OF CENTRAL EXCISE, CENTRAL REVENUE BUILDING, MANANCHIRA, KOZHIKODE, RESIDING AT VALIYAPARAMBATH HOUSE, MAKKADA (PO), KAKKODI KOZHIKODE- 673 617** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU** ## **RESPONDENTS/RESPONDENTS:** |**1**|**CENTRAL BOARD OF EXCISE AND CUSTOMS**| |---|---| ||**REPRESENTED BY ITS CHAIRMAN, NEW DELHI-110 001**| |**2**|**THE CHIEF COMMISSIONER OF CENTRAL EXCISE AND**| ||**CUSTOMS, KERALA ZONE, COCHIN - 682 033.**| |**3**|**THE CHIEF COMMISSIONER OF CENTRAL EXCISE AND**| ||**CUSTOMS, KERALA ZONE, COCHIN - 682 033.**| |**4**|**COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS**| ||**CALICUT COMMISSIONERATE OF CENTRAL EXCISE,**| ||**CENTRAL REVENUE BUILDINGS, MANANCHIRA,**| ||**KOZHIKODE-673001**| OP (CAT).No. 3384 of 2013 -2- **5 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE DEPARTMENT OF REVENUE, NEW DELHI-110 001.** **BY ADVS. SRI.T.V.VINU, CGC SRI.T.SANJAY CGC** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 14.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP (CAT).No. 3384 of 2013 -3- ## **JUDGMENT** ## **C.T.Ravikumar, J.** **The petitioner who claims to be a versatile person in the field of Sports and Games, filed the captioned original petition challenging the order dated 25.6.2013 in O.A.No.331 of 2012 passed by the Central Administrative Tribunal, Ernakulam Bench. He sought for the following reliefs in the Original Petition:** **“(i) Call for the records leading to Ext P3 order dated 25.6.2013 of the Central Administrative Tribunal Ernakulam Bench and quash the same by issuance of a writ of Certiorari or any other appropriate writ order or direction or in the alternative set aside the same in exercise of the supervisory jurisdiction of this Honble Court.** **(ii) Issuance of a writ of Certiorari or any other appropriate writ order** OP (CAT).No. 3384 of 2013 -4- **or direction and quash Annexure A5 in Ext.P1 as arbitrary, illegal and unjustified.** **(iii) Declare that the applicant is legally entitled to be regularized in Group-D service of the respondents considering her long and continuous service for over 10 years as sweeper in Group-D and having regard to the fact that she is a meritorious sportsperson entitle for appointment to Group-C/Group D post under Annexure A1 OM dated 21.3.1991;** **iv) Issue a writ of mandamus or other appropriate writ order or direction, commanding the respondents to regularize the service of the applicant as Sweeper in Group-D with effect from the date of her initial engagement as Sweeper under the department and grant her all consequential service and monitory benefits.”** **2. The respondents had filed reply** **statement and resisted the claims and contentions of the petitioner. On an earlier occasion, the Tribunal had issued a direction to reconsider the claim of the petitioner for appointment sympathetically and also in the light of the provisions in the office memorandum relating to** OP (CAT).No. 3384 of 2013 -5- **appointments under Sports Quota level. Ext.P3 would reveal that the challenge in the original application was against the order passed after such re-consideration. On perusing the order impugned, the Tribunal opined that the consideration was full, complete and microscopic and went on to hold that it would further go to show that the respondents had really made an endeavor to accommodate the applicant but ultimately found her not eligible. After such consideration, the Tribunal found that there is no illegality, infirmity, arbitrariness or** _**malafides**_ **reflected in the impugned order. Consequently, the original application was dismissed. It is in the said circumstances that the captioned original petition has been filed, challenging the order passed by the Tribunal.** **3. We have heard the learned counsel for** OP (CAT).No. 3384 of 2013 -6- **the petitioner and also the learned Central Government Standing Counsel for the respondents.** **4. This Court passed an interim order on 18.8.2014 in the above original petition to consider the case of the petitioner for appointment against a Group-D post. In** **compliance with the said order, the respondents had considered the claim of the petitioner for appointment and the said consideration had culminated in Ext.R3 order dated 29.12.2014. As per Ext.R3, it was found that the petitioner is not eligible for appointment under sports quota or under any other quota owing to the specific** **reason given thereunder. Subsequent to the issuance of Ext.R3, the petitioner filed I.A.No.391 of 2017, seeking to set aside the same. He has also filed I.A.No.116 of 2018 seeking amendment of the original petition to** -7- OP (CAT).No. 3384 of 2013 **incorporate the challenge against Ext.R3.** **5. We have heard the rival contentions and also perused the material on records. The very claim of the petitioner is that she was initially appointed as sweeper on daily wages, considering her meritorious achievements in Athletics. She claimed that she had achievements to her credit in National and International levels** _**“in various recognised sports events including Power Lifting, Arm Wrestling, Volley Ball, Weight Lifting, Kho-kho, Judo, Handball, Football and Athletics”**_ **. Virtually, the petitioner herself would admit the fact that she represented the Nation only in Arm Wrestling. Be that as it may, the crucial question is whether the contention of the petitioner that she was initially appointed as sweeper on daily wage** OP (CAT).No. 3384 of 2013 -8- **basis, considering her meritorious achievements in Athletics is true to facts or not. Despite the careful scrutiny of the materials on record, we could not find any material which would reveal her representation of the Nation in any international events. In fact, the respondents would submit that she was not actually engaged as sweeper on daily wage basis by them and it is their specific case that the petitioner was engaged as sweeper by a private contractor. In this context, it is to be noted that the petitioner had not produced any material whatsoever to show that she was actually engaged** **on daily wage basis as sweeper by the respondents. But, the fact is that from 26.5.1999 onwards, the petitioner has been doing sweeping work in the office of the third respondent. This aspect is not in dispute. The** OP (CAT).No. 3384 of 2013 -9- **materials on record would also reveal that the petitioner had some achievements in games, especially in Arm Wrestling, in which event she represented the Nation. It is taking into account such aspects that this Court issued the aforementioned interim order requiring the respondents to consider her claim for regular appointment/regularisation. In this context, it is also to be noted that when the petitioner herein moved the Kerala Administrative Tribunal, the Tribunal also had issued an interim order requiring the respondents herein to consider the claim of the petitioner. It is that order, viz; Ext.P3, which was challenged before the Tribunal. As noticed hereinbefore, the Tribunal ultimately observed that the consideration under Ext.P3 was full, complete and microscopic and it would also reflect the endeavour on the part of the** OP (CAT).No. 3384 of 2013 -10- **respondents to accommodate the applicant, though not under sports quota. The Tribunal also held that it would reveal that the respondents had considered her case sympathetically. It is after such careful consideration that the Tribunal had arrived at the conclusion that there is no illegality or infirmity, arbitrariness or malafides in the impugned order. On perusing the order impugned before the Tribunal, we do not find any reason to disagree with the said view of the Tribunal. As noticed herein-before, pending consideration of the tenability of the contentions raised by the petitioner against the order passed by the Tribunal, this Court passed an interim order as mentioned herein before. It is the consideration of the claim of the petitioner for regular appointment/for regularisation, in the light of the said order,** OP (CAT).No. 3384 of 2013 -11- **that culminated in Ext.R3 order. We have no hesitation to hold that Ext.R3 order would also reflect a careful, sympathetic consideration from the part of the respondents. They considered the eligibility of the petitioner for appointment treating her as a meritorious sports person under the recruitment rules of the year 1979 and also of the year 2013. On such consideration, they came to a conclusion that the petitioner did not fulfill the essential requirements for appointment of meritorious sportsman under the recruitment rules of those years. As noticed herein before in the reply statement filed before the Tribunal, they had categorically stated that the petitioner herein was not appointed or engaged by them and she was engaged by a private contractor. In this context, it is relevant to note that no document whatsoever was available on** OP (CAT).No. 3384 of 2013 -12- **record which would reveal that she was either appointed or engaged by the respondents by issuing any specific written orders. As stated earlier, the petitioner had not produced any material to establish that she was appointed/engaged as sweeper by the respondents. At the same time, it is to be noted that from 26.5.2009 onwards, she has been doing the duties of a sweeper on daily wage basis in the office of the third respondent. In Ext.R3, as also in the pleadings before the Tribunal as also before this Court, the consistent stand of the respondents is that the petitioner had crossed the age limit even at the time of her initial engagement itself. In the case of a sports person with meritorious achievements, relaxation by five years in the upper age limit is permissible. Giving such concession, the maximum age limit for** OP (CAT).No. 3384 of 2013 -13- **such entry in service is 32 years. It is also their specific case that at the time when the petitioner had initially started doing sweeping works, she was aged 38 years. On perusing Ext.R3 order, we are of the considered view that it really reflects the careful consideration of all aspects by the respondents, imbibing the spirit of the interim order passed by this Court. But once they hold that going by the provisions regulating appointment, the petitioner does not fulfill the essential requirements for appointment of meritorious sportsman either under 1979 or 2013 rules, the question is whether this Court could issue a writ of mandamus based on the contention of the petitioner that she had meritorious achievements in sports. There can be no doubt with respect to the position that the writ of mandamus could not be issued when there** OP (CAT).No. 3384 of 2013 -14- **is no legal right for the petitioner concerned and a corresponding duty on the respondents. That apart, it is to be noted that this is not a writ petition filed directly before this Court under Article 226 of the Constitution of India. The order impugned is an order passed by the Central Administrative Tribunal. In such circumstances, the source of jurisdiction of this Court is nothing, but the decision of the Apex court in L.Chandrakumar v. Union of India and others [(1997) 3 SCC 261]. Therefore, the only question which could be or should be gone into by this Court in exercise of the said jurisdiction is whether the order impugned is infected with illegality or is totally perverse, so as to compel this Court to exercise the power of judicial review.** **6. Having regard to the rival contentions** OP (CAT).No. 3384 of 2013 -15- **and on perusing the materials on record, we unhesitatingly hold that the petitioner had failed to bring out a case so as to compel us to exercise the power of judicial review to interfere with the order passed by the Tribunal. In such circumstances, the petitioner is not entitled to succeed in her challenge against the order of the Tribunal.** **7. But at the same time, we are of the view that even while dismissing the original petition, taking into account the entire circumstances and also the admitted fact that the petitioner has been working as a sweeper on daily wage basis in the office of the third respondent since 26.5.1999, it is only proper and reasonable for the respondents to permit the petitioner to continue to function as such, till regular appointment is effected in that office in that** OP (CAT).No. 3384 of 2013 -16- **category. We also notice that such a** **recommendation was in fact, made by certain officers of the department. Taking into account the fact that she has been working as sweeper for the past 19 years or thereabouts, it is only befitting in the interest of justice to permit the petitioner to do the sweeping works in the office in question till regular appointment is effected or till she attains the age of superannuation applicable to the Group D employees (taking note of the fact that she now crossed 57 years), whichever is earlier. Subject to the above, this original petition is** **dismissed.** ## **Sd/C.T.RAVIKUMAR JUDGE** **Sd/V.G.ARUN JUDGE** Scl/15.11 OP (CAT).No. 3384 of 2013 -17- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF OA. NO.331/2012, FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM.** **EXHIBIT P2 A TRUE COPY OF THE RESPONDENTS' REPLY AFFIDAVIT DATED 26-9-2012** **EXHIBIT P3 CERTIFIED COPY OF THE ORDER DATED 256-2013 IN EXT.P1 OA.NO.331/2012 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P4 TRUE COPIES OF INFORMATION ON APPOINTMENT OF CASUAL LABOURERS IN CALICUT, THRISSUR AND KANNUR DIVISIONS OF THE 5TH RESPONDENT OBTAINED UNDER RIGHT TO INFORMATION ACT.**