Delhi High Court
Dsssb vs Ravi Kumar And Anr. on 25 August, 2023
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Anoop Kumar Mendiratta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: August 25, 2023
1
+ W.P.(C) 11008/2023, CM APPL. 42661/2023
DSSSB ..... Petitioner
Through: Mrs. Avnish Ahlawat, Standing
Counsel with Ms. Tania Ahlawat,
Mr. Nitesh Kumar Singh, Ms. Palak
Rohmetra, Ms. Laavanya Kaushik,
Ms. Aliza Alam and Mr. Mohnish
Sehrawat, Advocates.
versus
RAVI KUMAR AND ANR. ..... Respondents
Through: Ms. Pragnya Routray, Advocate.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
V. KAMESWAR RAO (Oral)
CM APPL. 42662/2023
1. Exemption allowed, subject to all just exceptions.
2. Application stands disposed of.
W.P.(C) 11008/2023 & CM APPL. 42661/2023
3. The challenge in this writ petition is to an order dated May 08, 2023
passed by the Central Administrative Tribunal, Principal Bench, New Delhi
in O.A. 4318/2017, whereby the Tribunal has allowed the O.A. in favour of
respondent no. 1 herein by stating in paragraphs 7 & 8 as under:-
"7. In view of above, we have no doubt in our minds that the
issue and the facts of the present case are identical and same
to the one in O.A. No. 1012/2019 irrespective of the Post
Code. Therefore, we have no reason to take a divergent view.
Accordingly, this O.A. is also allowed.
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Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:01.09.2023
16:58:38
8. In view of the above, the present OA is allowed. The
impugned order dated 06.07.2017 is quashed and set aside.
We hereby direct the respondents to proceed with an offer of
appointment to the applicant, if otherwise found eligible,
except for the issues raised above. The respondents are also
directed to grant consequential reliefs to the applicant on
notional basis. This exercise shall be completed within a
period of three months from the date of receipt of a certified
copy of this order."
4. Some of the relevant facts are that the respondent No.1 had
participated in the selection process conducted by the DSSSB i.e. petitioner
herein, for the post of Assistant Malaria Inspector. The respondent No. 1
who belongs to the SC category, secured 83.5 marks and the cutoff for his
category was 60 marks. However, post the uploading of the relevant
documents, the candidature of the respondent No. 1 was rejected by the
petitioner on the ground of he being overaged for the concerned post, by way
of Rejection Notice dated July 06, 2017.
5. In the O.A. filed by the respondent No. 1, the case set up by him was
that his candidature for Assistant Malaria Inspector was rejected on the
ground that he was found to be of overaged. It was also his case that he is
entitled to age relaxation as per Column 6 at Sr. No. 6 of the advertisement
published by the petitioner. The relevant portion of the concerned
advertisement, wherein the stipulation qua the age relaxation is prescribed,
has been reproduced as under:
POST CODE:21/14 ASSISTANT MALARIA INSPECTOR
In MUNICIPAL CORPORATION OF DELHI
Number of vacancies: Total-302 (UR-152, OBC-82, SC-45, ST-23)
including PH-09 (OH-03, HH-03, VH-03)
Essential Qualification: (i) 10th pass under 10+2 system or higher
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Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:01.09.2023
16:58:38
secondary system from a recognized Board/School or equivalent.
p{ii} Sanitary Inspector Diploma from a recognized institutes or
equivalent.
Desirable: Knowledge of Hindi.
Pay Scale: Rs, 5200-20200 + Grade Pay Rs. 2400/-
Age Limit: Between 18-27 years (relaxable for SC/ST-05 yrs,
OBC-03 yrs, PH-10 yrs, PH & SC/ST-15 yrs, PH & OBC-13 yrs,
Department candidates up to 40 yrs, SC/ST-05 yrs).
This post is identified suitable for PH (OH, HH, VH) persons as
per the requisition of the User Department.
R.No.F.PA/MHO/HQ/SDMC/2013/57 Dated 7/6/2013.
6. The respondent No.1 has relied upon the judgment of the Supreme
Court in Union Public Service Commission v. Dr. Jamuna Kurup and Ors.,
(2008) 11 SCC 10. He had also relied upon the judgment of the coordinate
bench of this Court in Delhi Subordinate Services Selection Board & Anr.
v. Preeti Rathi & Ors., W.P.(C) 1641/2011, decided on November 15, 2011.
Reliance was also placed on the judgment of the Principal Bench of Tribunal
in Sujeet Kumar and Ors. v. Municipal Corporation of Delhi and Ors.,
O.A. No. 3989/2011, decided on May 10, 2012. The respondent no. 1 had
primarily relied upon the aforesaid judgment to contend that he is entitled to
age relaxation.
7. On the other hand, the case of the petitioner before the Tribunal was
that no age relaxation could be given to the respondent no. 1 as the same can
be availed by a government employee or regular departmental candidates
only.
8. The paragraph 7 of the judgment in O.A. No. 1012/2019, decided on
February 22, 2023, which has been relied upon by the Tribunal in the
impugned order dated May 08, 2023, while allowing the O.A., is reproduced
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Signing Date:01.09.2023
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as under:
"7. As already discussed hereinabove in Dr. Jamuna Kurup
(supra), wherein it has been held that "When there is a
contract of employment, the person employed is the employee
and the person employing is the employer. In the absence of
any restrictive definition, the word „employee‟ would include
both permanent or temporary, regular or short term,
contractual or ad hoc. Therefore, all persons employed by
MCD whether permanent or contractual will be „employees
of MCD"." and in Preethi Rahti (supra) also the present
issue of age relaxation has already been dealt with and
accordingly, no divergent view can be taken in the peculiar
facts and circumstances of the present case."
9. In other words, the Tribunal has relied upon the judgments in Dr.
Jamuna Kurup & Ors. (supra) and Preeti Rathi & Ors. (supra), while
allowing the O.A. The relevant directions passed by the Tribunal in
paragraph 7 & 8, have already been reproduced in paragraph 3 (above) of
this order.
10. As far as this writ petition is concerned, Mr. Nitesh Kumar Singh,
learned counsel appearing on behalf of the petitioner has primarily relied
upon the judgment of Supreme Court in Delhi Subordinate Services
Selection Board & Anr. vs. Seema Kapoor, Civil Appeal No. 4461/2021,
decided on July 22, 2021, to contend that the respondent no. 1 being a
contractual employee, is neither a government servant nor a departmental
candidate and as such he shall not be entitled to the benefit of age relaxation.
11. We are unable to agree with the aforesaid submission of Mr. Singh.
The judgment of Seema Kapoor (supra), which has been relied upon by Mr.
Singh, is clearly distinguishable on facts, inasmuch as, in the said case, the
Supreme Court was concerned with the facts, wherein the respondent before
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Signing Date:01.09.2023
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the Supreme Court was serving as a Teacher (Primary) in SDMC since April
07, 2006. The DSSSB (petitioner therein) invited applications for various
posts including the post of PGT (English) female in the Directorate of
Education. The advertisement in respect of the post for which the respondent
(before the Supreme Court), had applied, reads as under:
"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."
12. The Supreme Court, in paragraph 8, has held as under:
"We have heard learned counsel for the parties and find that
the order passed by the Central Administrative Tribunal and
that of the High Court are not sustainable. Firstly, the High
Court has quoted a wrong provision in the order passed
relating to subsequent advertisement. Secondly, the benefit of
age relaxation is permissible for government servants and
departmental candidates. It is not even the stand of the
respondent that she is a government servant and, rightly so,
as she is employed in an autonomous body i.e. Municipal
Corporation established under a specific statute. The
expression „Departmental Candidates‟ is in respect of the
candidates who are working in the concerned Department i.e.
Education. The Circular of the Government of India dated
27.3.2012 has made it explicitly clear that the benefit of age
relaxation is only meant for civil employees of the Central
Government and not to the employees of the autonomous
bodies, public sector undertakings etc. Therefore, the
respondent, as an employee of the autonomous body, i.e. the
Corporation, is not entitled to age relaxation either as a
departmental candidate or as a government servant."
13. Suffice to state that the Supreme Court has firstly held that a person
working in an autonomous body like Municipal Corporation, is not a
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government employee. The Supreme Court further held that since the
respondent therein, who was though working on contractual basis in SDMC,
could not come under the expression of departmental candidate as the
advertisement concerned therein sought candidates working in the concerned
department i.e. Education. Suffice to state the respondent therein was serving
as a Teacher (Primary) in SDMC, which was not the concerned department
i.e. Education. However, it is not such a case here. In the present case, the
respondent no. 1 herein, has been working in the concerned department i.e.
MCD on contractual basis w.e.f. 2005 and even the advertisement concerned
herein had invited applications for recruitment to the post of Assistant
Malaria Inspector from the department where the respondent no. 1 has been
working. If the issue is seen from that perspective, the Supreme Court in the
case of Dr. Jamuna Kurup (supra), has in paragraph 12, 13 & 14 stated as
under:
"12. Recruitment to posts in MCD is governed by the Delhi
Municipal Corporation Act, 1957 ('Act' for short). Section 90
of the Act contemplates appointment of persons to either
permanent posts or temporary posts. Section 90(6) provides
that the Standing Committee may on the recommendations of
the Commissioner create for a period not exceeding six
months any category A or category B post. Section 92
provides that the power to appoint employees whether
permanent or temporary shall vest in the Commissioner.
Section 96 provides that no appointment to any category A
post shall be made except after consultation with the UPSC,
but no such consultation is necessary for selection for
appointment to any acting or temporary post for a period not
exceeding one year. We have referred to these provisions
only to show that employment under the Municipal
Corporation of Delhi could be either permanent/regular or
short term/contractual.
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Signature Not Verified
Digitally Signed
By:DINESH CHANDRA
Signing Date:01.09.2023
16:58:38
13. The term 'employee' is not defined in the Delhi Municipal
Corporation Act, 1957. Nor is it defined in the advertisement
of UPSC. The ordinary meaning of 'employee' is any person
employed on salary or wage by an employer. When there is a
contract of employment, the person employed is the employee
and the person employing is the employer. In the absence of
any restrictive definition, the word 'employee' would include
both permanent or temporary, regular or short term,
contractual or ad hoc. Therefore, all persons employed by
MCD whether permanent or contractual will be 'employees
of MCD'. The respondents who were appointed on contract
basis initially for a period of six months, extended thereafter
from time to time for further periods of six months each, were
therefore, employees of MCD, and consequently, entitled to
the benefit of age relaxation. If the intention of MCD and
UPSC was to extent the age relaxation only to permanent
employees, the advertisement would have stated that age
relaxation would be extended only to permanent or regular
employees of MCD or that the age relaxation would be
extended to employees of MCD other than contract or
temporary employees. The fact that the term 'employees of
MCD' is no way restricted, makes it clear that the intention
was to include all employees including contractual
employees. Therefore, we find no reason to interfere with the
judgment of the High Court extending the benefit of age
relaxation.
14. The learned counsel for appellant submitted that the
advertisement granted age relaxation to employees of MCD
and employees of government of India, and that the words
'permanent' or 'regular' were not used either with reference
to 'employees of government' or 'employees of MCD'. It is
pointed out that in Vaghela (supra), this Court while dealing
with persons employed in identical circumstances, that is
'engaged for a period of six months from the date of joining
or till a candidate selected by UPSC joined on regular basis',
held that the term 'government servant' did not refer to or
include persons employed on contract basis. It is argued that
on the same principle, the term 'employees of MCD' cannot
include a contract employee of MCD. We cannot agree.
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Vaghela (Supra) related to contract employment by a
government whereas in this case the contract employment is
by a Municipal Corporation. The reason that weighed with
this Court in Vaghela to hold that a contract employee was
not a government servant, was in view of the special
connotation of the term 'government servant'. This Court
after referring to the decision of the Constitution Bench in
Roshanlal Tandan vs. Union of India 1968 (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. But a Municipal Corporation is
not 'government', and municipal employees are not
government servants governed by Article 309 to 311. Though
permanent employees of municipal corporation or other
statutory bodies may be governed by statutory rules, they do
not enjoy the status of government servants. Therefore, the
decision in Vaghela, rendered with reference to government
servants may not be of any assistance in interpreting the term
'employees of MCD'. In fact, for that very reason, these
matters were de-linked from the hearing of Vaghela."
14. The judgment of the Supreme Court in Dr. Jamuna Kurup & Ors.
(supra) has been followed by Coordinate Bench of this Court in the case of
Preeti Rathi & Ors. (supra), wherein this Court has in paragraph 13, held as
under:
"13. In the rules, nowhere the expression "departmental
candidates" has been defined. It has to be, in these
circumstances, assigned natural connotation. A departmental
candidate would be the candidate who is not an outsider but
is already working in the concerned department namely
MCD in the instant case. Admittedly the respondents are
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working in MCD as Primary Teachers on contract basis and
one has to assign practical meaning to the aforesaid
terminology and we are of the considered opinion that the
respondents shall be treated as departmental candidates for
the purpose of appointment to the post of Primary Teachers
on regular basis when they are already working in the same
post on ad-hoc basis for the last ten years. Reference may be
made to UPSC v. Dr. Jamuna Kurup (2008) 11 SCC 10
where the expression "employees of MCD" in the
advertisement granting age relaxation with respect to
recruitment to the post of Ayurvedic Vaids was held to
include both permanent or temporary, regular or short term
contractual or ad hoc employees of the MCD. Accordingly
those appointed on contract basis were held to be employees
of MCD and entitled to age relaxation. The earlier judgment
in UPSC v Girish Jayanti Lal Vaghela (2006) 2 SCC 482
relating to Government employees was held to be not
applicable to the expression "employees of MCD". We see no
reason why the said dicta of the Supreme Court be not
applied to the present situation also."
15. From the reading of the above judgments, it is clear that all those
persons, who were appointed on contractual basis, are held to be the
departmental candidates for them to be entitled to age relaxation in the same
organization, MCD, in the present case and for that matter, even in paragraph
14, the Division Bench has stated as under:
"14. Even in those matters whether cases of ad-
hoc/casual/contract employees come up for consideration for
regular appointment, there has always been a practice of
giving age relaxation. In many judgments rendered by the
Apex Court as well as this Court such relaxation is provided
and the relevant aspect which is to be kept in mind is that at
the time of initial appointment on contract/casual basis the
incumbent was within the age limit and was not overage. If
that is so, to the extent of service rendered by such an
employee, the benefit thereof has to be given. If the relaxation
of almost 10 years is to be given to the respondents for
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having worked for this period, in that case also they would
fall within the prescribed age limit."
16. Perusal of paragraph 14 of the judgment of Coordinate Bench as
reproduced above reveals that this Court has held that even in the case where
ad-hoc/casual/contractual employees come up for consideration for regular
employment, there has always been a practice of giving age relaxation. In
that sense, since the respondent no. 1 has been working as Domestic
Breeding Checker w.e.f. 2005 and is seeking a regular appointment as an
Assistant Malaria Inspector, surely, by applying the ratio of Preeti Rathi &
Ors. (supra), he shall be entitled to age relaxation.
17. In view of our above discussion, we are of the view that the impugned
order of the Tribunal needs no interference. Accordingly, the writ petition
filed by the petitioner is hereby dismissed.
18. Since, we have dismissed the writ petition, we grant further time of
three months for the petitioner to comply with the order of the Tribunal. No
costs.
CM APPL. 42661/2023
In view of the dismissal of the writ petition, CM APPL. 42661/2023 is
also dismissed as infructuous.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J. August 25, 2023/akc W.P.(C) 11008/2023 Page 10 of 10 Signature Not Verified Digitally Signed By:DINESH CHANDRA Signing Date:01.09.2023 16:58:38