Central Administrative Tribunal - Kolkata
Ms Premanand vs Education on 2 July, 2024
1 0.A. 351/00364/2024 (through video conference) CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA No. 0.A. 351/00364/2024 Date of order: 02/07/2524 Present : Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Hon'ble Mr. Suchitto Kr. Das, Administrative Member Ms. Premanand, Daughter of Mr. Vincent Minj, Aged about 33 years, Residing at Prem Nagar, Port Blair, South Andaman, Pin code -- 744 102. 7 .. Applicant -VERSUS- 1, UNION OF INDIA, Service through the Secretary, Ministry of Education, Shastri Bhavan, Dr. Rajendra Prasad Road, Rajpath Area, . Central Secretariat, New Delhi-- 110001. 2. The Lieutenant Governor, Andaman & Nicobar Island, Raj Niwas, Port Blair. 3. The Chief Secretary, Andaman and Nicobar Administration, Secretariat, Port Blair -- 744 101. 4. Andaman & Nicobar Administration, Secretariat Port Blair, Andaman and Nicobar Administration, Secretariat, Port Blair -- 744 101. . t--. if 2 O.A. 351/00364/2024 5. The Director, Education Department, Port Blair -- 744 101; 6. The Deputy Education Officer, South Andaman, Education Department, Port Blair -- 744 101. bee ne eee eees Respondents For the Applicant | : Mr. T.D. Cruz, Counsel For the Respondents : Mr. R. Kumar, Counsel ORDER
Mr. Jayesh V. Bhairavia, Judicial Member The applicant has filed this Original: Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"a) To declare that the applicant is eligible for consideration for the pest of PST Hindi in selection process initiated vide vacancy notice dated 14.02.2024 (Annexure A-2) and direction be passed upon the respondent No. 5, the Director of Education to consider her application for the post of PST Hindi (Registration No. 12202400124) and further direction be passed te include the applicant in the select list in order of merit.
b) To declare that any further action on the impugned selection precess excluding your applicant cannot be sustainable in the eye of law;"
2. It is stated by the applicant that, in response to vacancy notice dated 14.02.2024 published by the Directorate of Education, A&N Administration in connection with recruitment for the post of Primary School Teacher (hereinafter referred to as 'PST"') in different subjects, had submitted her online application dated 29.02.2024 for the post of PST -- Hindi in the subject under the option of age relaxation category.
gi-
fi 2.1.
2.2.
3 0.A. 351/00364/2024 According to the applicant, at the time of submission of her application she was working as contractual employee in the private school which is as such registered by the A&N Administration in terms of Delhi School Education Act & Rules, 1973. Therefore, she is entitled for age relaxation as provided in the condition no. 3 of the vacancy notice, more particularly, A&N circular No. 45 / 1998 -- PW dated 29.09.2011.
It is pleaded that as per clause 8 of the vacancy notice, after successful submission of online application form through recruitment portal, the applicant herein had approached the office of designated officers for submission of print out / hard copies of online application form along with all education certificates on 29.02.2024. After scrutiny, her application has been returmed in original along with attached documents by the respondents' office for the reason that she being a contractual employee of the recognized private unaided school, she is not eligible to claim age relaxation in terms of A & N Administration Circular dated 19.09.2011 and other Govt. orders / instructions issued for grant of age relaxation.
Being aggrieved, she had submitted her representation before the respondent No. 2 on 01.03.2024 (Annexure A/5). However, without considering the representation of the applicant, the respondents are continuing with the recruitment process and the applicant will be deprived from participating in the recruitment process. Hence, this O.A. | (pe 4 0A. 351/00364/2024
4. = Mr. T.D. Cruz, Ld. Counsel for the applicant, in support of claim of grant of age relaxation to the applicant in terms of A&N Circular dated 19.09.2011 as well prayer sought for in this O.A., mainly submitted as under:-
4.1.
4.2.
The applicant herein is a qualified teacher holding a Graduate degree and presently working in recognized private unaided school i.e. Carmel Senior Secondary School, Port Blair as Assistant Teacher w.e.f. 03.08.2015. The said private school is affiliated to the Central Board of Secondary Education and also recognized school by the Administrator under the Director of Education, as per the Delhi School Education Act and Rules, 1973. Her appointment as a contract employee of the said private recognized school was made in accordance with the statutory rules under Delhi School Education Rules, 1973.
Further it is stated that, as per the provision of the Right of Children to Free & Compulsory Education Act, 2009, all schools including the recognized private unaided schools are covered under the definition of "schools" as per Section 2(n) of the Act, 2009 and, accordingly, the contractual teachers working in such schools are discharging their duties similar to the teachers working in the Government school as also Sarva Shiksha Contract Teachers (SSCT) run by A&N Administration. Therefore, the applicant claim for grant of age relaxation is required to be considered at par with the said SSCT/DRM/Adhoc employee working under A&N Administration in terms of Circular dated 19.09.2011 (Annexure A/3 refer).
pe 4.3.
4.4, 5 O.A. 351/00364/2024 According to Ld, Counsel as per Section 10 of the Dethi School Education Act, 1973 and as per the Circular dated 03.05. 1976, as issued by the Government of India, employees of recognized unaided schools is required to be considered at par with employees of Government schools without any discrimination and the respondent authorities ought to have granted age relaxation to the applicant for the purpose of allowing her to participate in the recruitment process for the post of PST (Hindi).
Ld. Counsel for the applicant, by referring to the judgment passed by the Hon'ble Delhi High Court in WP (C) No. 9483/2015 and CM No. 22253/2015 in the matter of Praveen Kumar Pandey vs. The Director of Education, Govt. of NCTE & anr. would argue that in the said case, the claim of the applicant to consider and appoint him for the post of Librarian was initially denied by the school authorities on the ground of being over aged. His challenge to the decision of denying his claim for grant of age relaxation by treating him at par with the teachers of Govt. schools since the Hon'ble High Court by referring to the Gol order dated 21.01.2011 whereby the post of Librarian has been declared as a teaching post for all purpose including their eligibility to take classes also besides the work of Library has been notified and by taking into consideration the Gol Circular dated 03.05.1976 in respect to relaxation of age limit for recruitment of various categories of teachers, the respondents therein were directed to consider the claim of the applicant for the post of Librarian by treating him eligible to receive equivalent benefit of age relaxation as available to the Teachers of the school recognized by the Director of Education. Therefore, it is submitted that in the Sp 6 0A. 351/00364/2024 present case since the applicant herein was working in a recognized private unaided school, as contractual teacher but discharging duties under the Right of Children to Free & Compulsory Education Act, 2009, she is also required to be treated equally at par with other teachers working on contract basis under A&N Administration for the purpose of grant of age relaxation benefits.
4.5. Ld. Counsel for the applicants submits that the applicant has in her representation dated 01.03.2024 has contended that she is required to be treated at par with the Sarva Shiksha Contract Teachers engaged by the AKN Administration for the purpose of grant of age relaxation. However, the same has not been considered till date. Therefore, the respondents be directed to Keep one post of PST (Hindi) vacant till the outcome of this O.A. and it is also required to be declared that the applicant is eligible for being considered for the post of PST (Hindi) as notified in vacancy notice dated 14.02.2024 and, accordingly, the respondents are required to be directed to consider her application and include her name in the select list in order of merit. Further, Ld. Counsel had also sought relief to declare that any further action on the impugned selection process excluding the applicant cannot be sustainable in the eye of law.
5. On the other hand, on receipt of advance copy of notice, Mr. R. Kumar, Ld. Counsel appears for the respondent and he opposes the admission of the instant O.A. 5.1. Ld. Counsel, Mr. Kumar, for the respondents submits that the applicant herein undisputedly was working as Contractual teacher m the private unaided school namely, Carmel Senior Secondary School, Port Blair, which is affiliated to Central Board of Secondary Education, New Delhi. Further, it pee 7 OA. 351/00364/2024 is stated that the said private unaided school is undisputedly not run by the A&N Administration. Hence, it is not correct on the part of the applicant to contend that the teachers engaged in the private schools imparting Secondary School Education cannot be treated as Government servant or a Government teacher. In other words, it is stated that the applicant cannot claim benefit of age relaxation at par with the teachers of Government schools as well as teachers engaged in the Government education programme t.e. SSCT. He also objected to maintainability of this O.A. since the applicant had submitted her representation only on 01.03.2024 and the O.A. has been filed on 18/19.03.2024 before this Tribunal that too without waiting for any decision on the pending representation.
6. Hieard the Ld. Counsel for the parties at length and perused the material available on record.
7. It emerges from the record that the Directorate of Education, A&N Administration had published vacancy notice dated 14.02.2024 regarding recruitment for the post of PST in the different mediums under the Director of Education including 150 vacancies of PST ~ Hindi (UR-64, OBC-57, EWS-15, ST-14) (Annexure A/2 refer).
8. As noted hereinabove, it is the grievance of the applicant that her application for selection to the post of PST -- Hindi has been returned by the respondents without granting benefit of age relaxation as provided in Clause 3 of the vacancy notice, more particularly, the age relaxation provided to DRM and contract employees including the teachers engaged on contract basis for SSCT Scheme under A&N Administration.
It is stated that the applicant, being a contractual teacher employed by the private unaided school had not been treated at par with the employees (including teachers) working jy 8 0.A. 351/00364/2024 under SSCT programme of the A&N Administration for the purpose of age relaxation as stipulated in Clause 3(vi)} Srl. No. 8 in the vacancy notice as well not granted benefits of A&N Circular dated 19.09.2011 as referred in Clause 3(v) of the Vacancy Notice though she is discharging her duties as school teacher on contract basis in private unaided school which is affiliated to CBSE, New Delhi and recognized by the Director of Education, Port Blair as per the Delhi School Education Act, 1973. According to the applicant, that as per the Right of Children to Free & Compulsory Education Act, 2009, all schools including private unaided school are covered under the definition of 'School' under the said Act and the teachers working in such schools cannot be subjected to any discrimination by not providing the equal benefits of age relaxation as provided to the other contractual teachers working in Government schools or under SSCT Scheme of A&N administration.
9. At this stage, we deem it appropriate to refer to Clause 3 of the Vacancy Notice dated 14.03.2024 which stipulates Age Limits wherein Clause 3.1 stipulates the upper age limit of 30 years as on the closing date for receipt of application forms through online mode. At the same time, there are conditions which mandates relaxation of upper age limit to be granted to various categories of candidates. It is appropriate to refer to condition No. 3(iii) , 3@v) and 3{vi) of the said Clause 3 which reads as under:-
"3(iti) The upper age limit of 30 years is relaxable for Government Servants upto 05 years in accordance with the instructions/orders issued by the Central Government from time to time provided that Government servant should have rendered minimum 3 years continuous service in the cadre.
3.(iv) XXX
3.(v) Age relaxation is also admissible to the candidates who are covered under A&N Administration Circular No. 45 / 1998 -- PW dated 19.09.2011,
3.(vi) Age relaxation admissible in respect of reserved categories of candidates permissible over and above upper age limit of RRs as per Gols /A&N Administration instructions are as under:-
A 9 0.A, 351/00364/2024 SL Category Age relaxation | Upper age is allowed for both No. permissible beyond | male and female in respect of the upper age limit Gr. *B' Non-Gazetted posts 1, ST 05 years 35
2. OBC 03 years 33
3. PwD 10 years 40 (Unreserved)
4. PwD (OBC) 13 years 43
5. PwD (ST) 15 years 45
6. | Government service with minimum 3 35 years continuous service in the department
7. | Ex-Serviceman An Ex-Serviceman should be allowed to deduct the period of actual! military service from his actual age and if the resultant age does not exceed 30 years by more than 3 years, he/she shall be deemed to satisfy the condition regarding age limit.
8. | Age relaxation to DRM and contract | In accordance with employees including SSCT of A&N | instructions /orders issued Administration by the Andaman & Nicobar Administration vide Circular No. 45 /1998 - PW dated 19.09.2011 up to 40 years of age (as per DoPT, GOD It can be seen that as per the aforesaid condition, more particular, Clause 3(vi): Srl. No. 8 age relaxation has been provided to DRM and contract employees including SSCT of A&N Administration in terms of A&N Administration Circular dated 19.09.2011.
10. At this stage it is required to mention that the claim of the applicant that she has to be treated equally as per the beneficiary of age relaxation as provided in Circular No. 99/2011. Therefore, we deem it appropriate to refer to the condition stipulated for grant of gie 10 0.A. 351/00364/2024 age relaxation to the upper age limit as provided in Circular dated 19.09.2011 which reads as under:-
" No.45/1998-PW ANDAMAN AND NICOBAR ADMINISTRATION SECRETARIAT Port Blair, dated the 14" Sept, 2011 CIRCULAR Sub: Relaxation of Upper-age limit-regarding Reference is invited to this Administration's Circular No. 45/96-PW dated 06.06.2001 (Copy enclosed), wherein guidelines were issued regarding age relaxation to certain categories of employees.
2. The matter regarding extension of similar age relaxation to Daily Rated Mazdoors (DRMs) and Contract employees, including those appointed as Sarva Shiksha Contract Teachers (SSCT), who have been working as such for prolonged periods, has been engaging the attention of the Administration for quite some time past.
3. It has been brought to the notice of the Administration that although the above categories of employees were well within their age limit at the time of their initial engagement/appointment, however, over a period of time, they get over-aged when the regular vacancies become available, thus depriving them of their chance to apply for regular appointments/compete with others.
4. It has therefore been decided that all such candidates would be eligible to be considered for age relaxation subject to the actual period spent as SSCT/Adhoc/Contract Sor working in the department to which they are applying. However, in the case of DRMs/Adhoc/contractual workers the total period spent in each of the departments of this Administration shall be counted irrespective of the department where they are applying for regular appointment, provided the post is general in nature and it doesn't require any specific technical qualification. It goes without saying that all cases of age- relaxation are subject to the primary condition that at the time of their initial engagement as SSCT/Adhoc/Contract/DRM, these employees were not over age.
Sd/-
Secretary (Personnel)"
From the above, it can be seen that the competent authority only in respect to the Daily Rated Mazdoors (DRMs) and Contract Employees, including those appointed as Sarva Shiksha Contract Teachers by the A&N Administration and have been working in the department for prolonged periods has been considered to be eligible for age relaxation subject to the primary condition that at the time of their initial engagement as SSCT/Ad- hoc/Contract/DRM, these employees were not overaged. In other words, the benefit of age relaxation has been provided only to those contract employees including Sarva Shiksha gp 11 0.A. 351/00364/2024 Contract Teachers working under A&N Administration and not any other contract employees including teachers working in other organization including private institutions.
11. In the present case, undisputedly the applicant is working as teacher in private unaided school on contract basis and not under A&N Administration. The conditions stipulated in vacancy notice for grant of age relaxation to the contract teachers employed under SSCT working with the A&N Administration only. The claim of the applicant that she should have been treated equally for the purpose of extending the benefit of age relaxation and, as such, she claimed it in her application, the same has not been accepted by the concerned designated office at the time of scrutiny of her application (hard copy as per clause 8 of the vacancy notice) and had written her application. In absence of any condition stipulated in the vacancy notice or any circular which is issued by the A&N
2) 3} Administration which provides benefit of grant of relaxation in upper age limit to the school teacher working in private unaided schools, in our considered view, the action on the part of the respondents for returning the application of the applicant cannot be said to suffer from any legal infirmities.
12. The submission of Ld. Counsel that the applicant is working in private unaided school which has been recognized by the Director of Education, Port Blair, A&N Administration since the said private school is established under Delhi School Education Act, 1973 and affiliated to CBSE and as per the provision of Right of Children to Free & Compulsory Education Act, 2009, the school in which the applicant is working as a Contractual Teacher became eligibie to be treated equally with the teachers engaged by the A&N Administration on contract basis for SSCT is concerned, the same is not acceptable at this stage in absence of any policy decision on the part of the respondents or any rules in vogue for the purpose of recruitment to the post of Primary School Teacher in A&N Administration which provides relaxation in upper age limit to the contractual employee Pe 12 Q.A. 351/00364/2024 working in private schools. Suffice to state that recognition of the private school to impart education in Port Blair does not construe that the said school is run and managed by the A&N Administration. Thus, the employee / contractual teachers engaged by the said private unaided school cannot be termed as Government servant or adhoc /contractual teacher working under A&N Administration.
13. So far submission of Ld. Counsel for the applicant that as per the Rule 10 of Dethi School Education Act, 1973 and sub-para 6 of the Circular dated 03.05.1976 in respect to relaxation of maximum age limit for recruitment of various categories of Teachers in Schools under the Delhi Education Act, 1973 justifying the claim of the applicant herein for age relaxation and denial to it by the Department of Andaman & Nicobar Administration is an arbitrary and discriminatory treatment, which is not permissible, is concerned, the said submission, in our considered view, is not acceptable on the ground that the Circular dated 03.05.1976 has been issued by the Director (Education), Dethi Administration and cannot be applied to Andaman & Nicobar Administration unless specifically ordered either by the Union Government or by Andaman & Nicobar Administration.
There is nothing on record to prove that the said Circular dated 03.05.1976 was ordered to be applicable in case of Union Territory of Andaman & Nicobar by a competent authority.
In this regard, at this stage, we would like to refer to the order passed by this Tribunal on an identical issue in O.A. No. 351/00365/2024/AN decided on 06.06.2024 in the matter of Ms. Reshma Kumariv. A & N Administration.
In the said order, this Tribunal had occasion to deal with the very same issue whether the Circular dated (03.05.1976 issued by Director (Education), Delhi Administration can be ppt 13 O.A. 351/00364/2024 made applicable in respect to age relaxation claimed by the candidate in respect to vacancy notice issued by the Andaman & Nicobar Administration and held that the said Circular dated 03.05.1976 cannot be. made applicable in case of Union Territory of Andaman & Nicobar i in absence of any specific order to that effect, and held that cligibility fo grant of _ age 'relaxation to a section of the applicants i is governed by the Employment Notification
- for the particular Post and may differ according to the requirements, of the post. The eligibility for grant of age , relaxation cannot be termed as a a prescribed service benefit covered under Rule 10 of the Delhi E Education Act; and, accordingly, the said O.A. was dismissed.
The said finding is also applicable in the present case as well. © In our considered view, at this stage, the applicant catmot claim that as per the terms " -and conditions stipulated inthe vacancy notice dated 14.02.2024 any right has accrued in her favour to. Participate in the ongoing, recruitment ptocess for the © Post of Primary School : Teacher. iti is reiterated that the applicant had admitted that i in Y terms. of. Clanse 36) she j is overaged in terms of Clause 3 of the Vacancy Notice and as such she is not cligible to apply for the post of PST - Hindi.
In view of the aforesaid discussion, we do not find any reason 'to interfere with the selection Process : in respect: to Vacancy Notice dated 14.02.2024 for the post of PST i in A&N Administration i in the facts and circumstances: of the present case. Therefore, the _ prayer sought for by the applicant cannot be entertained at this stage.
14. The O.A. lacks merit and is dismissed accordingly. No costs.
| (ayesh Ve 'Bhaivavia) Judicial Member