Central Administrative Tribunal - Delhi
Sanjay Kumar S/O Ran Singh vs Government Of Nct Of Delhi Through on 23 October, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.711/2008 This the 23rd day of October, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Sanjay Kumar S/O Ran Singh, R/O Village Goela Khurd, P/O/ Chhawla, New Delhi-110071. Applicant ( By Shri Keshav Kaushik, Advocate ) Versus 1. Government of NCT of Delhi through Secretary (Services), Delhi Secretariat, Delhi. 2. Delhi Subordinate Services Selection Board, FC-18, Institutional Area, Karkardooma, Delhi-110092. Respondents ( By Shri Vijay Pandita, Advocate ) O R D E R Justice V. K. Bali, Chairman:
The only question that arises for adjudication in the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 by Sanjay Kumar, the applicant herein, is as to whether being an employee of the Municipal Corporation of Delhi (MCD), he can be said to be a Government servant. The facts leading to the question as mentioned above need necessary mention.
2. The applicant is working as a Primary Teacher with MCD in Education Department. Delhi Subordinate Services Selection Board (DSSSB), 2nd respondent herein, invited applications for filling up the posts of Grade-II (DASS) vide notification No.04/2006 published in Employment News (16-22 September, 2006). The applicant applied for the said post. Inasmuch as, he is working in MCD as Primary Teacher, he sought relaxation in the age limit being a government servant. In the advertisement inviting applications there is indeed a provision for relaxation of age with regard to certain categories of employees. To appreciate the controversy in its right perspective, it would be useful to reproduce the clause dealing with age relaxation, which reads as follows:
Age Relaxation for Government Servants:
Candidates belonging to SC/ST category are eligible for age relaxation upto a maximum of 5 years and candidates belonging to OBC upto a maximum of three years. The relaxation in upper age limit upto a maximum of 5 years (10 years for persons belonging to SC/ST community and 8 years for persons belonging to OBC category) may be allowed for meritorious sports persons. Candidates belonging to categories such as Ex-Servicemen, Govt. servant, widows, PH and other special categories are eligible for Age relaxation as per the order of the govt. of India in force. Applicants claiming age relaxation should enclose the duly attested copies of necessary documents in support of such claim. The applicant took no objection certificate from MCD in order to appear in the examination conducted by 2nd respondent for the post of Grade-II (DASS). The applicant belongs to OBC category. The MCD issued no objection certificate on 27.9.2007. That being so, the applicant could and indeed appeared in the preliminary test conducted by 2nd respondent on 8.7.2007 under roll number 59142144 and cleared the examination. After qualifying in the preliminary test, the applicant along with others was called to appear in main examination, in which the applicant appeared under the same roll number. He was successful in clearing even the main examination, result whereof was declared on 11.2.2008. He was selected on the post under contention but was yet denied appointment vide impugned order dated 14.3.2008 informing him that even though his name appeared at Sl. No.68 in the order of merit under OBC category and there were 82 vacancies under the said category for Grade-II (DASS), but his name was deleted being an employee of MCD on the ground that employees of MCD are not eligible to seek age relaxation fixed for Government servants category. The applicant takes strong exception to the impugned order dated 14.3.2008. It is his case that he is a Government servant/employee being an employee of MCD, and is thus eligible for age relaxation.
3. When the matter came up for hearing before us on 15.9.2008, the plea as raised by the applicant was sought to be canvassed from the Division Bench judgment of the Honble Delhi High Court in the matter of Sushil Kumar Rajput v Director of Education & Others, WP(C) No.13782/2004 decided on 24.11.2006. After hearing the arguments, judgment was reserved on 15.9.2008. While, however, preparing the judgment, it transpired that age relaxation to Government employees in the case decided by the Honble High Court included employees of other government organizations, which is admittedly not the position in the present case. An employee of MCD, Sushil Kumar Rajput, petitioner in the case aforesaid, was held to be government servant/employee of other government organization. That being so, by recording an order dated 16.9.2008, mentioning the distinction that may arise in the case of Sushil Kumar Rajput and the present one, the matter was listed for hearing.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
5. At the very outset, we may reproduce the clause dealing with age relaxation for Government employees in the case of Sushil Kumar Rajput. The same reads, thus:
The Age Limits as mentioned in the advertisement against each Group B and Group C posts are normal and are relaxable for SC/ST applicants upto 5 years and for OBC applicants upto 3 years. Age limit is also relaxable for Government servants and employees of other Government organizations upto 5 years. We have already reproduced above the age relaxation clause in the present case. There is no mention of employees of other government organizations. Reference to the Division Bench judgment of the Delhi High Court needs to be made immediately. The facts as may be relevant in the case aforesaid reveal that Sushil Kumar Rajput was an employee of MCD. An advertisement for recruitment to the post of Physical Education Teacher (PET) appeared in newspapers. The upper age limit for male candidates was 30 years. Rajput was 34 years 5 months old on the relevant date of filling up the application form, i.e., 25.3.1999. Age relaxation was permissible to various categories including government servants, sports persons and SC/ST, as prescribed in the brochure issued by DSSSB. As mentioned above, the age limit was also relaxable for Government servants/employees of other Government organizations up to five years. As in the present case, so was in the case decided by the Honble High Court, the petitioner had sought no objection certificate from the department for applying for the post. He was declared successful and appointment letter dated 23.12.1999 was issued to him. He resigned from his earlier post held by him with MCD and joined the services with respondents on 30.3.2000, and even completed the period of probation. On 25.4.2001, he was, however, issued a show cause notice to explain as to why his appointment should not be cancelled as he was overage at the time of applying for the post of PET. It was stated that he was not a government employee but an employee of MCD, an autonomous body, and thus ineligible to claim any age relaxation. The petitioner responded to the show cause notice, but vide order dated 21.7.2004 his candidature for appointment to the post of PET was found ineligible being overage. His appointment was declared illegal and he was reverted to his parent department, i.e., MCD. Aggrieved, he filed an OA before this Tribunal challenging the order dated 21.7.2004, which was dismissed. In the writ petition preferred by him against the order of the Tribunal it was urged that age relaxation had been unfairly denied to him and he was entitled to the same on account of his being an employee of MCD which falls under other government organization. In his endeavour to bring home the point, counsel representing the petitioner placed reliance on Section 107-A of the MCD Act, 1957 which provides for constitution of Finance Commission to recommend distribution of net proceeds of taxes etc. between Corporation and Government of NCT and grant in aid to the Corporation from consolidated fund of the Government of NCT. Reliance was also placed upon Chapter 24 of the MCD Act which provides for control of the Corporation by the Central Government. After noting the contentions raised by the rival parties, the Division Bench observed as follows:
It is not the petitioners case that though being an employee of MCD, he is a government servant. His case is that he falls within the ambit of employee of other government organization. Similar is the situation with regard to Anil Kumar Gupta Vs. MCD (2000) 1 SCC 128. The mere fact that there was a separate provision made for MCD and government employees for the purposes of age relaxation can only show that MCD employee is not a government employee. It does not negate employee of MCD being an employee of other government organization. The view taken by the Tribunal based exclusively on Sushil Kumar Rajput being a Government employee and not even considering that he could be an employee of other government organization was disapproved by the Division Bench of the Honble High Court. While examining the meaning of government and organization and status of employees of MCD, it was observed as follows:
15. Having noticed the definition of Government and Organization let us examine whether MCD falls within the ambit of other government organization. The municipal government of Delhi is vested in the MCD. Apart from framing Building Bye Laws, regulating construction, it levies and collects taxes. It receives grant-in-aid from the consolidated fund of the Government of NCT. It would clearly fall within a government organization. For all appointments in Group A posts, it is required to consult the UPSC. While it is true that it has a degree of autonomy, the same would not change its character from that of government organization. In the further discussion made by the Division Bench, MCD has been held to be a local authority having public functions akin to government, with certain degree of autonomy, and that it would thus fall within the ambit of other government organization, and specially keeping in view that all Group A appointments are made in consultation with UPSC, for sanction of prosecution they are treated as public/government servants, and further that even for the purposes of Article 12 of the Constitution, MCD is treated as a public authority and an instrumentality or agency of the government, exercising statutory powers and performing public functions. The ultimate conclusion arrived at by the Division Bench reads as follows:
18. Accordingly we hold that MCD will fall within the ambit of other government organization. The petitioner in the context of findings recorded by the Division Bench was held eligible for age relaxation.
6. Having carefully gone through the judgment recorded by the Division Bench of the Honble High Court of Delhi, we are of the view that the applicant cannot take any advantage of the same as even though, MCD may be a local authority and covered under other government organization, its employees have not been held to be government employees. They have been held to be employees of other government organization. In the clause of age relaxation, the words other government organization are significantly missing.
7. Confronted with the position aforesaid, Shri Keshav Kaushik, learned counsel representing the applicant, would then contend that the applicant is a government employee. For his aforesaid contention, besides relying upon Section 107-A of the MCD Act, which has been already discussed by the Division Bench of the Honble High Court of Delhi and may need no further elaboration, reliance has been placed on Section 2(1) and Section 490 of the MCD Act. Reliance has also been placed on the tenth description of public servant under Section 21 IPC. Insofar as Section 2(1) of MCD Act is concerned, it gives definition of Administrator, which means the Administrator of the Union Territory of Delhi. The mere fact that the Lieutenant Governor of Delhi is the Administrator, in our view, would not make employees of MCD government employees. Section 490 dealing with supersession of the Corporation provides that if in the opinion of the Central Government, the Corporation is not competent to perform, or persistently makes default in the performance of the duties imposed on it by or under the Act or any other law or exceeds or abuses its powers, the Central government may, by an order published, together with a statement of reasons therefor, in the official gazette, declare the corporation to be incompetent or in default or to have exceeded or abused its power, as the case may be, and supersede it for such period as may be specified in the order. When the corporation is superseded by an order, as per clause (b) of sub-section (2) of Section 490, during the period of supersession of the corporation, all powers and duties conferred and imposed upon it by or under the Act or any other law shall be exercised and performed by such officer or authority as the Central Government may appoint in that behalf. The property vested in the Corporation, as per clause (c) of sub-section (2) shall vest in the Central Government till such time the Corporation is reconstituted. The mere fact that the activities of the Corporation can be controlled and if the Corporation is found to be remiss it can be superseded, would only make it a case where the Central Government may have certain amount of control over the Corporation, as has been indeed observed by the Division Bench of the Delhi High Court in Sushil Kumar Rajput (supra), but that again, in our view, would not make the applicant an employee of the government. Insofar as, Section 21 IPC is concerned, the same only defines public servant. Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district, would also be a public servant, as per the tenth description of the term public servant under Section 21 IPC. Employees of the Corporation may be entrusted with such duties as may be mentioned in Section 21 IPC, but they would be public servants for purposes of IPC, and that being so, it would be essential to seek permission to prosecute them if they are involved in any criminal case in the discharge of their duties, but that, once again, would not make them government servants/employees. MCD is creation of the statute known as Delhi Municipal Corporation Act, 1957. The establishment of the Corporation is envisaged in the provisions contained Section 3 of the Act. The Central Government may, by notification in the official gazette, declare that there shall be a corporation charged with the municipal government of Delhi, to be known as the Municipal Corporation of Delhi. It shall be a body corporate with the name aforesaid having perpetual succession and common seal with power, subject to the provisions of the Act, to acquire, hold and dispose of property and may by the said name sue and be sued. The corporation is to be composed of councillors and aldermen. Councillors shall be chosen by direct election on the basis of adult suffrage from various wards into which Delhi shall be divided in accordance with the provisions of the Act, and aldermen shall be chosen by the councillors from among persons who are qualified to be councillors but are not councillors themselves. By the provisions contained in Section 3, as mentioned above, the Government may, by notification in the official gazette, declare that there shall be a corporation charged with the municipal government in Delhi, to be known as the Municipal Corporation of Delhi, which shall be a body corporate with the name aforementioned having perpetual succession and common seal power, subject to the provisions of the Act, to acquire, hold and dispose of property and may by the said name sue and be sued. The provision referred to above, in our view, would make the MCD a body corporate. Corporations may be divided into two main classes, namely, corporation aggregate and corporation sole. The MCD would not be a corporation sole. A corporation aggregate is a collection of individuals united into one body under a special denomination having perpetual succession under an artificial form and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contacting obligations and of suing and being sued, of enjoying privileges and immunities in common and of exercising a variety of political rights more or less extensive according to the design of its institution or the powers conferred upon it either at the time of its creation or subsequent thereto. The Honble Supreme Court in Board of Trustees Ayurvedic and Unani Tibia College, Delhi v State of Delhi and Another [AIR 1962 SC 458], held that a corporation aggregate has, therefore, only one capacity, namely, its corporate capacity. A corporation aggregate may be trading corporation or a non-trading corporation. The usual examples of a trading corporation are (1) charter companies, (2) companies incorporated by special Acts of Parliament, (3) companies registered under the Companies Act etc. Non-trading corporations are illustrated by (1) Municipal Corporations, (2) District Boards, (3) Benevolent institutions, (4) Universities etc. An essential element in the legal conception of a corporation is that its identity is continuous, that is, that the original member or members and his or their successors are one. In law the individual corporators, or members of which it is composed are something wholly different from the corporation itself; for a corporation is a legal persona just as much as an individual. Thus, it has been held that a name is essential to a corporation; that a corporation aggregate can, as a general rule, only act or exercise its will by deed under its common seal; that at the present day in England a corporation is created by one or other of two methods, namely, by Royal Charter of incorporation from the Crown or by the authority of Parliament that is to say, by or by virtue of statute. There is authority of long standing for saying that the essence of a corporation consists in (1) lawful authority of incorporation, (2) the persons to be incorporated, (3) a name by which the persons are incorporated, (4) a place, and (5) words sufficient in law to show incorporation. No particular words are necessary for the creation of a corporation; any expression showing an intention to incorporate will be sufficient. What is really highlighted from the essential features of a corporation, either from its definition or from various judicial precedents, inclusive of S. P. Mittal v Union of India [(1983) 1 SCC 51] and Ashoka Marketing Ltd. & Another v Punjab National Bank & Others [JT 1990 (3) SC 417], is that an essential element in the legal conception of a corporation is that its identity is continuous. The original member or members and his or their successors are one. There may be an element of control over the affairs of MCD by the Government, but it is essentially a corporate body. Its employees, in our considered view, cannot be said to be Government employees.
8. Shri Kaushik, learned counsel representing the applicant, we may mention, also argued that MCD is a State within the definition of State as given in Article 12 of the Constitution, and is amenable to writ jurisdiction of the High Court under Article 226, and, therefore, the applicant should be deemed to be a government employee. We do not find any merit in this contention of the learned counsel either. State under Article 12 has been defined to include the Government and Parliament of India and the Government and the Legislature of each of the States. It also includes local or other authorities within the territory of India or under the control of the Government of India. As mentioned above, MCD is indeed a local authority and for that purpose, would be covered under the definition of State and amenable to writ jurisdiction of the High Court under Article 226, but that would not clothe the applicant with the status of a government employee.
9. The learned counsel also urged that by virtue of provisions contained in sub-section (2) of Section 14 of the Administrative Tribunals Act, 1985, the Government may notify and thus apply the provisions of the Act of 1985 to local or other authorities within the territory of India or under the control of the Government of India and to corporations or societies owned or controlled by Government, and once, provisions of the Act of 1985 can be applied to employees of local or other authorities, and MCD, in any case, is a local authority, the applicant should be deemed to be a government employee. The argument, in fact would go against the plea raised by the applicant in that being an employee of MCD, which is a local authority, he cannot be a Government employee. The provisions of the Act are applicable to Government servants, but if they are to apply to employees of local or other authorities, a separate notification for that purpose has to be issued. That in itself would make a distinction between a Government employee and an employee of local or other authority owned or controlled by Government.
10. Before we may part with this order, we may only mention that the applicant cannot take advantage of the relaxation clause. Surely, because of the advertisement not giving any relaxation to employees of other government organizations, many others, situate as the applicant is, might have applied, but were deprived of applying. The applicant cannot be given an advantage of which others equally situate were deprived of. Further, if such employees as the applicant is, would have also applied, surely the applicant would have faced far more stiff competition and may not have found place in the select list.
11. Finding no merit in this Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/