Central Administrative Tribunal - Delhi
Mohammad Kamil vs Govt. Of Nctd on 19 February, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.4173 of 2016
This the 19th day of February 2019
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
Mohammad Kamil
s/o Late Mr. Abdul Wahhab
r/o 394, First Floor,
Gali No.15, Gaffar Manzil,
Jamia Nagar, Okhla,
New Delhi-25.
....Applicant
(By Advocate : Shri Nitin Yadav)
VERSUS
1. Govt. of NCT Delhi,
Chief Secretary,
Delhi Secretariat, I.P. Estate,
New Delhi.
2. Director,
Directorate of Education, GNCTD
Establishment-III Branch,
Old Secretariat, Delhi-54.
3. Secretary,
Delhi Subordinate Selection Service,
FC-18, Institutional Area,
Behind Karkardooma Court,
Karkardooma, Delhi-92.
.....Respondents
(By Advocate : Shri K.M. Singh)
O R D E R (Oral)
Ms. Nita Chowdhury, Member (A):
Heard learned counsel for the parties.
2. In this OA, the applicant is seeking the following reliefs:-
"i) That the Hon‟ble Tribunal is graciously be pleased to pass appropriate directions to the respondents 2 to select the applicant as TGT (Urdu) in terms of Advertisement No. 01/13 for the post code of 18/13 with all consequential benefits in the interest of justice.
ii) That the Hon‟ble Tribunal is graciously be pleased to pass appropriate directions to the respondents to give the age relaxation in age limit and weightage in experience as against the post code of 18/13 in the interest of justice.
iii) Declaring the applicant entitle for arrears of pay and allowances for the period of lapses on the part of the Respondents in paving way for his selection to the aforesaid post despite fulfilling all criterion.
iv) pass such other order(s) and/or give direction(s) as deemed fit and proper in the facts and circumstances of the case, in the interest of justice.
3. Brief facts of the case are that the DSSSB advertised the vacancies for the post of TGTs/TGT(MIL) vide advertisement No.01/12 and closing date for receipt of applications was 15.06.2012. The applicant applied for the post of TGT (Urdu) Male and he was issued Roll No.5600005. The applicant has also applied for the post code no.18/13, which was advertised by advertisement No.1/13, which was the same post, i.e. TGT (Urdu) Male. He was permitted to appear in written examination conducted on 28.12.2014 on the basis of information provided by him in the application form. However, shortlisted candidates as per their merit in the written examination were later called for verification of documents to check their eligibility as per the terms and conditions laid down in the advertisement on 28.1.2016 and 3 applicant also appeared on the said date with all requisite documents.
3.1 The applicant was shocked when he had seen the result notice dated 6.4.2016 wherein the applicant was not amongst the selected candidates and reason for rejection of his candidature was given as overage.
3.2 The applicant in the present matter was working as Contract TGT (Urdu)/Asstt. Teacher in N.P. Co.Ed. Secondary School, Lodhi Road, New Delhi since 1.8.2009 till now. 3.3 Applicant submitted that in the advertisement no.02/2012, age limit for the post in question was "below 32 years (relaxable for SC upto 05 years, OBC upto 03 years, PH- 10 yers, PH & SC upto 15 years, PH & OBC 13 years, relaxable in case of Govt. servants of Delhi Administration upto 40 years (for SC employees upto 45 years) and upto 42 years in case of female candidates and crucial date for deciding eligibility was 15.6.2012.
3.4 Applicant further stated that date of birth of the applicant is 15.1.1980 and further all educational qualification of the applicant are complete as on the deciding date for eligibility. However, his age as on 16.5.2012 was about 32 years and 6 months. Since the applicant was working as Contract Teacher (Urdu)/Asstt. Teacher in Government Department, which makes his experience as on 15.6.2012 of about 2 years and 8 months and experience as 4 on 20.3.2013 (i.e. the cut off date of Advertisement No.01/13) of about 3 years and 7 months.
3.5 Applicant filed his representation dated 8.4.2016 to the respondents to consider his case as he was entitled for age relaxation.
3.6 Thereafter applicant filed an RTI dated 25.4.2016 wherein the applicant had asked about his candidature, which was replied by the respondents vide letter dated 15.7.2016 stated therein that he had not submitted any certificate to show his experience to get the age relaxation. 3.7 Thereafter applicant had sent another representation dated 25.7.2016 stating therein that he had completed the experience of three years as T.G.T. (Urdu) in NDMC School against the post Code of 18/13. The applicant had sent another application/representation dated 8.8.2016 wherein the applicant had requested to the respondents to consider his candidature as he had an experience of three years as TGT (Urdu) in Government Teacher as against the post code of 18/13.
3.8 Applicant had also sent another RTI dated 14.10.2016 to the respondents to which the respondent had replied that the applicant‟s case is not covered for age relaxation as per the provisions of the DOP&T vide reply dated 3.11.2016. 3.9 Applicant further stated that to his another RTI application, the SDMC Education Department had give their 5 reply dated 20.9.2016 in which they stated that contract teacher are entitled for age relaxation.
3.10 Being aggrieved by the aforesaid actions of the respondents, the applicant has filed this OA seeking the following reliefs.
4. Pursuant to notice issued to the respondents, they have filed their reply in which they have stated that applicant has claimed age relaxation on the basis of his contractual employment as TGT (Urdu)/Asstt. Teacher in N.P. Co-ed Secondary School, Lodhi Road under South Delhi Municipal Corporation. They further submitted that as per the conditions laid down in the advertisement, the departmental candidates with at least three years service in Central Government/Government of Delhi are eligible for claiming age relaxation and the term „Departmental candidate‟ refers to only the permanent/regular employees of Delhi Government/Central Government and not contractual employees engaged for short terms.
4.1 They further stated that contractual employees are not government servants. Since the applicant is a contractual employee and does not possess the status of Government servant, his claim for relaxation in age cannot be acceded to. 4.2 They also stated that as per the conditions laid down in Point No.7 of the note below Section-A and Point No.4(ii) of Section-C of the advertisement, it has been clearly reiterated that the educational qualifications, age, experience etc., as 6 stipulated in Section-A shall be determined as on the closing date of receipt of applications, i.e., 20.3.2013. Since the applicant has become overage as on closing date of receipt of applications by 01 year and 02 months being his date of birth as 15.01.1980, his candidature was rejected.
5. Counsel for the applicant submitted that it is an admitted fact that applicant is seeking relaxation on the basis his contractual employment as TGT (Urdu)/Assistant Teacher in N.P. Co-ed. Secondary School, Lodhi Road and the applicant has secured his name in the merit list for both the post code of 120/12 and 18/13 and the action of the respondents rejecting the case of the applicant for age relaxation is liable to be set aside by this Tribunal in view of the fact that applicant had completed three years of experience as on 20.3.2013 as contract TGT (Urdu)/Asstt. in N.P. Co.Ed. Secondary School Lodhi Road, New Delhi. In support of his claim, applicant placed reliance on the decision of the Hon‟ble Supreme Court in the case of UPSC vs. Dr. Jamuna Kurup and others in Civil Appeal Nos.2294-2329 of 2008 decided on 21.2.2008.
6. Counsel for the respondents submitted that as per the conditions laid down in the advertisement No.1/13, age is relaxable upto 05 years in case of departmental candidates with at least 03 years service in Central Government/Government of Delhi. Counsel for the respondents placed reliance on the Hon‟ble Apex Court in the 7 matter of UPSC vs. Girish Jayanti Lal Vaghela, reported at (2006) 2 SCC 482, in which Apex Court has opined that "This Court after referring to the decision of the Constitution Bench in Roshanlal Tandon vs. Union of India 178(1) SCR 185, and the decision in Dinesh Chandra Sanpma vs. State of Assam 1977 (4) SCC 441, held that employment under the Government is a matter of status and not a contract even though acquisition of such a status may be preceded by a contract; and that contract employees of the Government were governed by the terms of contract and did not possess the status of government servants nor were governed by rules framed under Article 309 of the Constitution, nor enjoyed the protection under Article 311." and submitted that applicant is not entitled to age relaxation being a contractual employee and age relaxation is admissible to only departmental candidate with at least three years service in Central Govt. / Govt. of Delhi.
7. After hearing learned counsel for the parties and after perusing the pleadings in this case, the issue involved in this case is that whether the applicant is entitled for age relaxation being a departmental candidate or not? The applicant‟s date of birth is 15.1.1980 and as on cut off date i.e. 20.3.2013, the applicant‟s age was 33 years, two months and five days and according to the applicant, since 1.8.2009, he has been working on contract basis as T.G.T.(Urdu)/Asstt. Teacher, he is entitled for age relaxation. 8
8. As the applicant is seeking age relaxation in this case, it is relevant to quote the DOP&T OM dated 30.1.1990 which reads as under:-
"No.15012/1/88-Estt. (D) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training New Delhi, dated the 30th January, 1990 OFFICE MEMORANDUM Subject:
Relaxation of Upper Age limit for Departmental candidates to Group "C" and "D" posts.
The undersigned is directed to say that this Departments O.M. dated 20th May, 1988 provides that departmental candidates may be allowed to compete alongwith candidates from open market for appointment to Group ‟C" posts upto the age of 40 years in the case of general candidates and 45 years in the case of candidates belonging to Scheduled Castes and Scheduled Tribes subject to the usual condition that the Group „C‟ posts to which direct recruitment is being made are in the same line or allied cadres and that a relationship could be established that service rendered in the post will be useful for efficient discharge of the duties in other categories of posts. It has been decided to extend this concession for departmental candidates for appointment to Group „D‟ posts also subject to the same conditions.
2. It is also clarified that the age relaxation upto 40/45 years, as the case may be, for appointment to Group "C"
and Group "D" post will be available only to those departmental candidates who have rendered at least 3 years continuous service under Government."
9. From the aforesaid OM and the subsequent OMs on the subject, it is quite clear that age relaxation upto 40/45 years, as the case may be, will be available only to those departmental candidates, who have rendered at least 3 years continuous service under Government. It is an admitted fact that the applicant was working on contract basis in the respondent Corporation but his service is not continuous 9 service. Therefore, the applicant cannot be permitted to claim the benefit of his contractual service rendered in the respondent Corporation for the purpose of age relaxation. It is further relevant to mention that age relaxation in the case of contractual employees, who are/were actually in the strength of the respondent Corporation at the time of consideration of their candidatures for appointment to the post advertised, is admissible as held by the Apex Court in the case of Union Public Service Commission Vs. Dr. Jamuna Kurup and Ors. (2008 (11) SCC 10) and the same had been followed subsequently. However, in the present case, applicant was not having the continuous three years service as an employee of the Respondent Corporation at the time when he applied for the post in question, which is a pre condition for consideration of the case of the candidate for age relaxation as per the DOP&T OM supra. As such, the applicant cannot be given age relaxation on the basis of service rendered in respondent Corporation as such we do not find any illegality and infirmity in the action of the respondents not granted age relaxation in his case.
10. In view of the aforesaid reasons, this Court is unable to accept the aforesaid contentions of the learned counsel for the applicant.
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11. In the result and for the foregoing reasons, this Court does not find any merit in this case and accordingly the OA is dismissed. There shall be no order as to costs.
(S.N. Terdal) (Nita Chowdhury) Member (J) Member (A) /ravi/