Central Administrative Tribunal - Delhi
Shikha Shokeen vs Gnctd on 28 November, 2024
1
Item No. 47/ C-5
C
O.A. No. 1611/2022
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1611/2022
Reserved on 18.11.2024
Pronounced on 28.11.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Mrs.Shikha Shokeen, Aged-35
Aged 35 Years, D/o Sh. Surajmal
Shokeen, R/o 99-D,
99 D, DDA Flats, Gulabi Bagh, Near Shastri
Nagar Metro Station, New Delhi-110007
Delhi 110007
Applicant
(By Advocate: Mr. Yogesh Sharma)
V/s
1. Govt. of NCT of Delhi, Through the Chief Secretary, New
Secretariat, New Delhi-110001
Delhi
2. The Secretary, Delhi Subordinate Services Selection Board,
Govt. of NCT of Delhi, F-18,
F 18, Institutional Area, Karkardoma,
Delhi-92.
92.
3. The Director of Education, Govt. of NCT of Delhi, Old
Secretariat, Delhi - 110001
...Respondent
(By Advocates:
Advocate : Mr. Anuj Kumar Sharma, Mr. Amit Yadav)
2
Item No. 47/ C-5
C
O.A. No. 1611/2022
ORDER
By Hon'ble Mr. Manish Garg, Member (J) By virtue of the present OA, the applicant is seeking the following reliefs:
"(1)That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 05.05.2022(A/1) inrespect of applicant only and consequently, pass an order directing the respondents to grant the age relaxation to the applicant who is working in SDMC(now MCD) as Primary Teacher and consider the candidature of the applicant for her appointment intment to the post of Educational and Vocational Guidance counselor (Female) post code 36/20 with all the consequential benefits from the date of appointment of juniors and similarly situated persons including seniority and pay fixation.
(ii) Any other relief relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation."
2. Highlighting the facts of the case, learned counsel for the applicant had drawn attention to the advertisement issued by the respondents, specifically clause 6, which reads as follows:
6. Departmental candidate Upp to 05 years for Group 'B' with at least three years posts (which are in the same line continuous service in Govt. or allied cadres and where a of NCT of Delhi/its local or relationship could be established autonomous bodies. that the service already rendered For Group B Post: - in a particular post will be useful for the efficient discharge of the duties of post) as per DoP DoP&T O.M. No. 15012/2/2010 15012/2/2010-
Estt.(D) dated 27th March, 2012."
For Group C Post:
Post:-
Up to 40 years of age (45 years for SC/ST, 43 years for OBC) for Group 'C' post (which are in the same line or allied cadres) as per DoP&T O.M. No. 15012/2/2010 15012/2/2010- Estt.(D) dated 27th March, 2012.3
Item No. 47/ C-5 C O.A. No. 1611/2022 2.1 Learned counsel for the applicant further highlighted that the MCD has been declared a local or autonomous body in terms of the order passed in WP(C) No. 1738/2019, titled Delhi Subordinate Services Selection Board and Anr. vs. Seema Kapoor. He had drawn a distinction to the fact that in Seema Kapoor (Supra), the Apex Court dealt with the advertisement's clause 3, which read as follows:
"2.The respondent is serving as Teacher (Primary) in South Delhi Municipal Corporation since 7.4.2006. The appellant invited applications for various posts including the post of PGT (English) Female, Post Code No. 133/2012, vide Advertisement No. 2/2012. The age limit as per the advertisement in respect of the post for which the respondent was an applicant reads thus:
"Age Limit: Below 36 years & relaxable in case of Govt. Servant and departmental candidates upto 05 years in accordance with the instructions or orders issued by the Central Government. This post is identified, as suitable for OH/VH persons only as per the Requisition of the User Department."
2.2 In that case, there was no stipulation regarding the coverage of the term "local or autonomous body." He emphasize emphasized that, in the present case, the advertisement explicitly contemplates grant of age relaxation to be extended to a candidate of a local or autonomous body. He further relied upon the decision rendered by the Tribunal in OA No. 632/2019, titled Virender vs. Govt. of NCT of Delhi and Ors.
3. Opposing the grant of relief, the learned counsel for the respondents stated state that the MCD is not an autonomous body within the meaning or ambit of the advertisement clause. It is a body created by statute, and therefore, no benefit benefit of age relaxation can be accorded, relying on the decision in Seema Kapoor (Supra) (Supra).
4Item No. 47/ C-5 C O.A. No. 1611/2022 3.1 Itt is undisputed that the candidature candidature of the applicant was rejected by a rejection notice, which reads as follows:
"The candidature of the applicant was rejected by the DSSSB vide rejection notice dated 05.05.2022 on the ground that she is overage as the candidate is overage by 02 months, 09 days even after giving relaxation in age under OBC category. The candidate has however, uploaded experience certificate as DDCF category from SDMC & KV. The experience certificate uploaded by the candidate from SDMC & KV are not applicable as per DoPT guidelines/Delhi Govt. Instructions. Accordingly, dossier of the applicant was not received by the Directorate of Education via DSSSB.
DSSSB. The role of the answering respondent is limited to appointment of candidates only after the dossiers are received by the Directorate of Education from DSSSB."
3.2 A distinction was also sought to be drawn by the learned counsel for the respondents, particularly with reference to the decision in UPSC vs. Dr. Jamuna Kurup & Ors, by the Hon'ble Supreme Court, where the advertisement was issued directly by the MCD and not by DSSSB, as in the present case. It is undisputed that the applicant is currently employed as a regular employee in the MCD. Reliance is also placed on the decision rendered by this Tribunal in the Poonam Chaudhary vs. Govt.
of NCTD ( OA No.2120/2020).
4. Heard learned counsel for the parties and persued the records of the case.
5. ANALYSIS 5.1 In Ms. Annu Yadav vs Govt. Of Nct Of Delhi And Ors Ors. decided on 2 November, 2023 arising of out of WP ( C) No.9806/2021 No.9806/2021, the Hon'ble High Court observed as under :-
:
"15. At the outset, it may be noticed that vide several settled judicial udicial pronouncements, the contractual employees have been enabled to participate in the recruitment process by giving age 5 Item No. 47/ C-5 C O.A. No. 1611/2022 relaxation with respect to the upper age limit, for the period the contractual employees had been in service with the department.
(i) In Syed Ahmar Ali Hashmi v. Union Public Service Commission & Ors. (supra), the petitioner therein was working as Junior Forensic/Assistant Forensic/Assistant Chemical Examiner (Documents) with GNCT of Delhi. Further, respondent no. 1 issued an advertisement for filling of certain posts for Senior Scientific Officer (Document), Forensic Science Laboratory, Home Department, Govt. of NCT of Delhi and the age limit was provided as not exceeding 30 years. The petitioner therein being overage sought the benefit of age relaxation and placed reliance upon OM No. F.19(11)/2015-S-IV/1751--1756 dated June 11, 2019 issued issued by GNCT of Delhi which provided that contractual employees working against all other administrative posts to be eligible for one-time one time relaxation in upper upper-age limit upto maximum period of five years. The contentions of the respondents were two-fold.
two Firstly, irstly, that the OM dated June 11, 2019 was applicable only to contractual employees working as teachers and for contractual employees working against all the administrative posts (which are Group B and C posts), whereas the post in question i.e. Senior Scientific Scientific Officer (Documents) was a scientific/technical Gazetted Group „A „A‟ Post and same is governed only by recruitment rules.
The Division Bench observed that OM dated June 11, 2019 in no manner drew any distinction between Group „A „A‟ post on one side and Group „B‟‟ and „C‟ posts on the other side and it was not mentioned in the OM that age relaxation for contractual employees is to be granted only in case of Group „B‟ & „C‟ posts.
The second contention of respondents was that the benefit of age relaxation can be granted to only those candidates who are working against same posts for which direct recruitment has been initiated. The court referred to the advertisement in question and observed that the age relaxation is provided for the contractual employees who who are working in the "same department" and not to contractual employees who are working only against the "same post" of Senior Scientific Assistant (Documents) and held the contention of respondents to be without any basis. The court further allowed the w writ petition and directed UPSC to extend the benefit of age -relaxation of five years to the petitioner while considering his application for the post of Senior Scientific Officer (Documents).
The aforesaid judgment squarely applies to the facts and circumstances of the present case wherein the case of the circumstances petitioners is even on better footing having worked on contractual basis against the same post of APP in Govt. of NCT of Delhi.
(ii) In UPSC v. Dr. Jamuna Kurup & Ors. (supra), the respondents therein were were engaged as Medical Officers (Ayurved) by Municipal Corporation of Delhi (MCD) on 6 Item No. 47/ C-5 C O.A. No. 1611/2022 contractual basis till regularly selected candidates were made available by UPSC. In 2004, UPSC advertised 45 posts of Ayurvedic Vaids and prescribed that the age limit of ccandidates should not exceed 35 years. The advertisement inter inter-alia also provided that the upper age limit is relaxable for employees of MCD upto five years. The stand of the petitioners was that the age relaxation was meant to be for regular employees and „not for contractual employees‟ employees‟ and, hence, the respondents, being contractual employees, were illegible for age relaxation.
The High Court granted the relief of age relaxation to respondents and the same was upheld by the Apex Court observing that in absence absence of any restrictive definition of the word, "employees" in the Delhi Municipal Corporation Act, 1957 or in the advertisement issued by UPSC, it would include both permanent or temporary, regular or sshort-term, contractual or ad-hoc.
ad hoc. All persons employed by MCD, whether permanent or contractual come under the ambit of term "employees of MCD" and therefore contractual employees like the respondents were entitled to benefit of age relaxation.
(iii) In DSSSB DSSSB v. Preeti Rathi & Ors. (supra), respondents No.1 and 2 were working in Municipal Corporation of Delhi as primary teachers on contractual basis and were granted benefit of age relaxation by Tribunal for recruitment to the post of primary teachers subsequently subsequently initiated, since they were within age limits at the time of joining the post on contractual basis.The order of the Tribunal was challenged and the primary basis.The contention of the petitioners was that judgment delivered by this Court in Sachin Gupta v. DSSSB,, 152 (2008) DLT 378 (DB) as relied by respondents was not applicable to respondents, since therein the age relaxation was granted to candidates who had completed Elementary Teachers Education (ETE) ddiploma Course in years 2006 to 2008 whereas the respondents had cleared ETE course in 2001. The Division Bench upheld the order of Tribunal and reference was made to amended Recruitment Rules and advertisement issued by petitioners, wherein the age limit ofof 27 years was said to be relaxable upto 45 years of age in respect of departmental candidates.Reliance was further placed upon the judgment of Apex Court in Dr. Jamuna Kurup (supra) and it was observed that recruitment rules nowhere defined the expression „departmental candidates‟ and therefore the same has to be assigned a natural candidates‟ connotation. A departmental candidate would be the candidate who is not an outsider but is already working in the concerned department namely MCD. Hence, respondents working in MCD as contractual primary teachers were entitled to be treated as departmental candidates for the purpose of appointment to the post of primary teacher on regular basis when they are already working in the same post on ad-hoc hoc basis for last 10 years.
(iv) In Sachin & Ors. v. CRPF & Anr. (supra), the petitioners therein preferred writ petition seeking relaxation of upper age limit for appearing in examination examination for recruitment to the post of Head Constable (Ministerial) in CRPF-2022.
CRPF 2022. The grievance of 7 Item No. 47/ C-5 C O.A. No. 1611/2022 the petitioners therein was that since no recruitment was conducted for past 5-6 5 6 years, the petitioners became overaged and had crossed maximum prescribed age limit in the advertisement i.e. 18 to 25 years. The Division Bench observed that petitioners have been deprived to seek recruitment in CRPF for no fault of theirs, due to non-conduct non conduct of examination by CRPF and therefore are entitled to age relaxation of tthose years in the upper age limit. Reliance was also placed upon decision of Hon‟ble Hon‟ble Apex Court in High Court of Delhi v. Devina Sharma, Civil Appeal No.2016/2022 wherein the respondents had sought relaxation relaxation in upper age limit for appearing in DJSE and DHJSE-2022 DHJSE 2022 on the ground that the examination was not conducted for two recruitment years 2020 and 2021 due to Covid Covid-19 Pandemic.
(v) In Bhola Nath Rajak & Ors. (supra), Jharkhand Public Service Commissioner issued an advertisement in 2013 inviting applications for the post of Civil Judge (Junior Division) (Munsif) wherein the upper age limit was fixed at 35 years. The petitioners approached the High Court Court with a prayer that since the examination for appointment to the post of civil Judge (Junior Division) was last held in 2008, the cut off date for calculating the maximum age limit of 35 years ought to have been fixed as January 31, 2009 instead of Janua January 31, 2013. The High Court, after noticing Dr. Ami Lal Bhat v. State of Rajasthan, (1997) 6 SCC 614, Sanjiv Kumar Sahay v. State of Rajasthan, Jharkhand, 2008 (2) ( JLJR 543 and Subodh Kumar Jha v. State of Jharkhand, Jharkhand, (2005) 3 JLJR 622 allowed the writ petition and observed that by the reason of delay in holding the examination, the writ petitioners along with similarly placed candidates who have completed the maximum maximum age of 35 years should not be disqualified from appearing in the examination and modified the cut-off off date from December 10, 2013 to January 31, 2009.
(vi) The relaxation of age was also considered by the Hon Hon‟ble Apex Court in the case of University of Delhi and Ors. v. Delhi University Contract Employees Union and Ors., MANU/SC/0214/2021 wherein UGC had imposed a ban on filling up of non-teaching non teaching post in all institutes/universities and affiliated filiated colleges. In 2011, UGC allowed University to fill 255 posts of Junior Assistants after sufficient changes in Recruitment Rules. The University accordingly amended Recruitment Rules and an advertisement was published in 2013 inviting application forr posts of Junior Assistants („JA‟, („JA‟, for short) in University.
During the period of ban from 2003-2013, 2003 2013, several appointments were made on contract basis, out of which 300 Junior Assistants were the members of the respondent union. A writ petition was preferred by respondent union seeking regularisation of services preferred of members of union after age relaxation. The said writ petition was dismissed by learned Single Judge. Pursuant to the advertisement, Junior Assistants employed on contractual basis also participated participated and were given the benefit of age relaxation. Aggrieved by the order of dismissal an LPA was preferred before the Division Bench which was allowed and the University was directed to design and hold an appropriate test for selection 8 Item No. 47/ C-5 C O.A. No. 1611/2022 in terms of Notification.
Notifica The Apex Court while disposing the appeals preferred by the University held that contractual employees in the light of decision rendered in State of Karnataka & Ors. v. Uma Devi & Ors., (2006) 4 SCC 1 cannot claim the relief of regularisation. Howeve However, since they had completed more than 10 years of services on contract basis, a window of opportunity must be given to them to compete with the available talent through public advertisement. Further it was observed that a separate and exclusive test for th the contractual employees would not meet the purpose. Therefore, the benefit of age relaxation with respect to upper age limit be given to all contractual employees and in addition to that those employees who were engaged in the year 2011 were given the bene benefit of 10 marks in the ensuing selection process, while for every additional year that a contract employee had put in, benefit of one more mark subject to the ceiling of 8 additional marks be given."
5.2 We may also refer to the decision rendered by this T Tribunal in "Monica Monica Sharma v/s v Govt. Of NCTD decided on 8 May, 2023 in OA No.2688/2019 wherein relying on decision rendered in in OA No.287/2018, it was observed as under :-
:
"7. In the result, for the foregoing reasons, we allow this OA with a direction to the respondents to place the file of applicant on the basis of his merit position in the selection process already concluded before the Hon'ble Lt. Governor, Delhi, who, in his wisdom, may pass appropriate order(s) for granting age relaxation under Rule 5, and thereafter, issue necessary order(s) for offer of appointment to the post of EVGC in terms of advertisement to which these applicant had applied, subject to fulfilling other eligibility conditions, within six weeks from date of receipt of certified copy copy of this Order. He shall, however, be entitled to all benefits from the date of joining the post only."
5.3 In the above back drop, drop, we may observe that in the decision rendered in Jamuna Kurup & Ors ( Supra) it is observed that terms and conditions of the advertisement which are binding on parties parties, shall apply. For the purpose of age relaxation clause 6 of the advertisement stipulates. "The The Departmental candidate with at least three years continuous service in Govt. of NCT of Delhi/its local or auton autonomous 9 Item No. 47/ C-5 C O.A. No. 1611/2022 bodies." Whereas in decision rendered in Seema Kapoor ( Supra), there was no such stipulation for grant of age relaxation , the said clause was done away with.
5.4 We may also notice that the respondents cannot ignore, the experience certificate from South Delhi Municipal Corporation. There is no rationale or basis neither any just reasons to deny experience certificate from South Delhi Municipal Corporation.
6. CONCLUSION 6.1. In view of the above, a , for the foregoing reasons, we allow this OA with a direction to the respondents to place the file of applicant on the basis of her merit position in the selection process already concluded before the Hon'ble Lt. Governor, Delhi, who, in his wisdom, may ppass appropriate order(s) for granting age relaxation under clause 6 of the advertisement,, and thereafter, issue necessary order(s) for offer of appointment to the post of EVGC in terms of advertisement to which the applicant had applied, subject to her ful fulfilling other eligibility conditions, within six weeks from date of receipt of certified copy of this Order. The applicant shall, however, be entitled to all benefits from the date of joining the post only. The appointment so made shall be adjusted against the future vancancy in the event there is no existing vacancy without distrubing the candidature of last appointed candidate to the Post of EVGC-I-Female.
Female.
10Item No. 47/ C-5 C O.A. No. 1611/2022 6.2. Pending ending MAs, if any shall also stand disposed of of. No Costs.
(Dr.
Dr. Anand S Khati)
Khati (Manish Garg)
Member (A) Member (J)
/arti/