Central Administrative Tribunal - Delhi
Meena Kumari vs Delhi Subordinate Services Selection ... on 3 October, 2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2583/2015
With
O.A. No.401/2015
Order reserved on 21st August 2018
Order pronounced on 3rd October 2018
Hon'ble Mr. K.N. Shrivastava, Member (A)
Hon'ble Mr. S.N. Terdal, Member (J)
O.A. No.2583/2015
Mina Kumari, age 41 years (Fresh Appointment)
w/o Parveen
H.No.110
VPO Ladpur
Delhi - 110 081
..Applicant
(Mr. Sachin Chauhan, Advocate)
Versus
1. Govt. of NCTD
Through the Chief Secretary
Nava Sachivalya IP Estate
New Delhi
2. The Secretary
DSSSB
FC-18, Institutional Area
Karkardooma
(Near Railway Reservation Centre)
New Delhi - 110092
3. The Director (Local Bodies)
Govt. of NCT of Delhi
Delhi Secretariat, IP Estate
New Delhi
4. The Commissioner
North Delhi Municipal Corporation
Dr. S P Mukherjee Civic Centre, 4th Floor
J L Nehru Marg, New Delhi - 110 002
5. The Commissioner
East Delhi Municipal Corporation
2
Udyog Bhawan, Patparganj Industrial Area
Delhi - 110 092
6. The Commissioner
South Delhi Municipal Corporation
Dr. S P Mukherjee Civic Centre, 9th Floor
J L Nehru Marg, New Delhi - 110 002
..Respondents
(Mr. Amit Anand, Advocate for respondent Nos. 1 to 3,
Mr. CCS Pillai, Advocate for Mr. K M Singh, Advocate for respondent No.4,
Mr. Manjeet Singh Reen, Advocate for respondent No.5, and
Mrs. Anupama Bansal, Advocate for respondent No.6)
O.A. No.401/2015
Smt. Dinesh, age 35 years
w/o Narender Singh
r/o H.No.1034, C Block
Sanjay Gram, Gurgaon, Haryana
..Applicant
(Mr. S D Singh, Advocate)
Versus
1. State of NCT Delhi
Through the Secretary
Secretariat, IP Estate
New Delhi
2. Delhi Subordinate Services Selection Board
Through its Secretary
FC-18, Institutional Area
Karkardooma
New Delhi - 110092
3. North Municipal Corporation of Delhi
Through its Commissioner
Civic Centre, Delhi
..Respondents
(Mr. Amit Anand, Advocate for respondent Nos. 1 to 2,
Mr. CCS Pillai, Advocate for Mr. K M Singh, Advocate for respondent No.3)
ORDER
Mr. K.N. Shrivastava:
Since common issues of facts and laws are involved, it was decided to dispose of these two O.As. by this common order.3 O.A. No.2583/2015
2. Pursuant to the Advertisement No.004/2009 of Delhi Subordinate Services Selection Board (DSSSB), the applicant applied for the post of Primary Teacher in Municipal Corporation of Delhi (MCD) (Post Code 70/09) under OBC category. The closing date for the receipt of the applications was 15.01.2010. The essential qualification and the age limits, including age relaxation, as indicated in the Advertisement for the post, were as under:-
"1. Sr. Secondary (10+2) or intermediate or its equivalent with 50% marks from a recognized Board.
2. Two years diploma/certificate course in ETE/JBT or B.El.Ed. from recognized institutions or its equivalent.
3. Must have passed Hindi as a subject at Secondary Level."
Desirable Qualification : Computer knowledge.
Age limit:"
20-27 years. Relaxable for SC/ST-05 years OBC-03 years, PH-10 years, PH & SC/ST-15 years, PH & OBC-13 years, Departmental employees upto 42 years of age (general), upto 47 years from SC/ST, having 03 years of continuous service in the same line or allied cadres. Relaxable upto 37 years for (general) and upto 42 years for SC/ST - for widows, divorced women and women judicially separated from their husband and who are not re-married."
3. Prior to the year 2007, the age limit for the post of Primary Teacher was 32 years for male candidates and 42 years for female candidates, but the Government of NCT of Delhi brought out a Notification in the year 2007 whereby the age limit was reduced to 27 years, both for male and 4 female. The said order of the Govt. of NCT of Delhi was challenged by some aggrieved candidates before the Hon‟ble Delhi High Court in W.P. (C) No.7297/2007 (Sachin Gupta & others v. Delhi Subordinate Services Selection Board & others), who, vide order dated 28.08.2008, disposed of the W.P. giving age relaxation to the candidates, who had completed ETE course in the year 2006 or 2007 or 2008 and thus authorizing to appear in the examination. The relevant portion from the said judgment is extracted below:-
"64......who have completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the Respondents for the post of Assistant Teacher (Primary) once each of the Respondents i.e. MCD and Govt. of NCT of Delhi provided they do not exceed the upper age limit of 32 years for males and 42 years for females and also fulfil all other eligibility conditions..."
4. The applicant was also affected due to reduction in the age limit and accordingly, filed O.A. No.359/2010, together with other O.A.s, along with other candidates, seeking age relaxation benefits in terms of aforementioned judgment of Hon‟ble High Court. The said O.A. was disposed of by the Tribunal vide order dated 19.03.2010; the operative part of which would read as under:-
"3. The grievance of the applicants is non-accord of relaxation. An addendum in Advertisement Number 04/2009 has been issued by the Delhi Subordinate Services Selection Board (DSSSB) on the directions of the High Court of Delhi in Sachin Gupta & others v. DSSSB (Writ Petition (Civil) No.7297/2007) decided on 28.8.2008, whereby the relaxation, which would be independent of relaxation applicable to reserved categories, was accorded.
4. In the light of above, these OAs have rendered infructuous and are accordingly disposed of."5
5. It is stated that the applicant participated in the selection process for the post of Primary Teacher (Post Code 70/09) under OBC category vide Roll No.07072641 and got 83.5 marks. The grievance of the applicant is that despite having secured more marks than the cut-off marks (69.3) for OBC category, she has not been considered for appointment on the ground of being „overage‟. As per Annexure A-1 Rejection Notice dated 05.12.2014, the applicant‟s name figures at Sr.No.351. Accordingly, the applicant has approached the Tribunal in the instant O.A. praying for the following reliefs:-
"(i) To quash and set aside the Office Order No.344 Rejection Notice No.F.4(391)/DSSSB/CCI/2014-757-765 dated 05.12.2014 to an extent whereby the applicant (at Sr. No-351) is being declared „Not Eligible‟ on the ground of „Overage‟ and to further direct the respondent that applicant be given the benefit of judgment of Hon‟ble Delhi High Court in WPC No-7297/07 date 28.08.2008 and further applicant be given appointment to the post of Primary (Teacher) against Post Code - 70/09 in present selection process with all consequential benefit including seniority, promotion and pay & allowance."
6. The main grounds pleaded by the applicant in support of the relief claimed are as under:-
6.1 The applicant, together with others, who were applicants in O.A.No.359/2010 and other connected O.As., have been granted age relaxation by the Tribunal vide its order dated 19.03.2010 in terms of judgment of Hon‟ble High Court in Sachin Gupta's case (supra).
6.2 The new Recruitment Rules whereby the age limit for the post of Primary Teacher has been fixed as 20 - 27 years are discriminatory and have caused prejudice to the applicant.6 O.A. No.401/2015
7. Pursuant to the Advertisement No.004/09 of DSSSB, this applicant also applied for the post of Primary Teacher (Post Code 70/09). The applicant appeared in the written examination for the aforementioned post, however, her candidature has been rejected vide impugned Annexure A-1 Rejection Notice dated 05.12.2014 on the ground of being „overage‟. The applicant‟s name figures at Sl.No.481 in the said Notice. The applicant has challenged the impugned Rejection Notice and has prayed for the following reliefs:-
"(a) To quash and set aside the Office Order No.344 dated 5.12.2014 whereby the Applicant has been declared as an overage and unsuccessful candidate with respect to the Primary Teacher in pursuant to Advertisement No.004/09 and 70/09.
(b) To direct the Respondents authorities to make the appointment of the Applicant as a primary teacher by issuing fresh office order or by including her name in office Order No.343 dated 5.12.2014 at appropriate place as per the marks secured by her as a successful candidate in pursuance to the Advertisement No.004/09 and 70/09, declaring her to be fit for appointment to the post of Primary Teacher in Government of NCT, MCD."
8. This O.A. was earlier dismissed by the Tribunal vide order dated 15.09.2016; the operative part of which reads as under:-
"2. We have gone through the pleadings. The issue is very simple. The applicant wishes to get the benefit of judgment of the Hon‟ble High Court in the matter of Sachin Gupta & Ors. Vs. DSSSB in W.P. (C) No.7297/2010 in which the Hon‟ble High Court had given age relaxation to those who had acquired ETE in 2006, 2007 and 2008.
Admittedly, the applicants does not possess ETE and, therefore, the judgment in Sachin Gupta (supra) will not apply. The applicant has tried to argue in the OA that the diploma that has been obtained by the applicant is equivalent to ETE. However, there is no document in support of this claim. Therefore, this argument cannot be accepted that the diploma obtained by the applicant is equivalent to ETE. In 7 any case the relaxation in Sachin Gupta (supra) specifically pertains to ETE. Moreover, we cannot decide the question of equivalence of various diplomas.
3. In view of the above position, the OA lacks merit and is, therefore, dismissed."
9. The R.A. preferred against the said order was also dismissed by the Tribunal. The applicant challenged the order dated 15.09.2016 passed in O.A. and order dated 21.11.2017 passed in R.A. before the Hon‟ble High Court in CWP No.756/2018. She pleaded before the Hon‟ble High Court that the ETE degree course, prescribed in the Notification of DSSSB for the post of Primary Teacher, is equivalent to the Diploma in Education conferred on him by Haryana State. It was also pleaded that in identical case in W.P. (C) No.3104/2016 titled DSSSB v. Praveen Kumar, this equivalence has been accepted, as it could be seen from paragraph 12 of the judgment, which is reproduced below:-
"12. There is an agreement between the parties which is also borne out from the fact that the respondent was permitted to appear in the examination as far as the educational qualifications were concerned, which means that he was eligible. The equivalence of the ETE course and the diploma in Education is not in dispute. However, in Delhi, the nomenclature is certificate in ETE course while in other states a different nomenclature is adopted, for example in Bhopal, it is diploma in Education, in Haryana, it is JVT and similarly, BLT is in some other state. Learned counsel for the respondent has submitted that there cannot be a difference in criteria for the same post for different states as this was not the objection in terms of the advertisement and in case, a candidate who had completed ETE course from Delhi is to be given age relaxation as per the decision in Sachin Gupta (supra), the same age relaxation should be provided to the persons who are identically placed in terms of educational qualification."8
10. The Hon‟ble High Court allowed the said CWP and vide its order dated 01.02.2018 quashed and set aside the orders passed by the Tribunal in O.A. and R.A.
11. Pursuant to the notices issued, the respondents in these two O.As. entered appearance and filed two separate replies in these O.As., to which the applicants have filed separate rejoinders.
12. It is an admitted fact that by an addendum to the Advertisement dated 11.12.2009, one time age relaxation was granted to the candidates, who had applied for the post of Primary Teacher pursuant to Advertisement issued by the DSSSB. The candidatures of these applicants have been rejected on the ground of they being „overage‟. We also notice that the Tribunal, vide its order dated 02.09.2015 in O.A. No.4616/2014 titled Praveen Kumar v. DSSSB & others, had directed the DSSSB to consider the candidature of Praveen Kumar, the applicant therein, by giving him age relaxation up to 32 years, as on the cut-off date, i.e., 15.01.2010. The said order of the Tribunal was affirmed by the Hon‟ble High Court in W.P. (C) No.3104/2016 vide judgment dated 20.07.2016 (supra). The DSSSB challenged the judgment of Hon‟ble High Court before the Hon‟ble Apex Court in C.A. No.10824/2016, which was allowed vide judgment dated 11.11.2016 in the following terms:-
"11. Once, we understand the contours and scope of the judgment, it becomes abundantly clear that the said judgment of the High Court in Sachin Gupta's case cannot be made applicable for all times. The respondent herein was not the candidate in the recruitment to the said post in the year 2008. On the contrary, he applied for the post pursuant to the advertisement published in the year 2009. In the impugned judgment the High Court has failed to consider the aforesaid analysis of its earlier judgment in Sachin Gupta‟s case.9
12. We, therefore, allow this appeal and set aside the judgment of the High Court as also that of the CAT."
13. Mr. Praveen Kumar filed R.P. (C) No.486/2017 in the said C.A. No.10824/2016 before the Hon‟ble Apex Court, which was allowed by it vide judgment dated 20.09.2017; the operative part of which reads as under:-
"Once, we understand the contours and scope of the judgment, it becomes abundantly clear that the said judgment of the High Court in Schin Gupta's case cannot be made applicable for all times. The benefit of relaxation is given to those candidates who had completed the ETE course either in year 2006 or 2007 or 2008, to appear in the examination. Since the respondent completed the ETE course in year 2008 and pursuant thereto he appeared in the examination conducted in the year 2009, pursuant to an addendum to advertisement dated 11.12.2009, he was entitled to one-time relaxation in terms of Sachin Gupta's case. Therefore, his candidature was wrongly cancelled by the appellant. We, therefore, find no fault in the impugned judgment of the High Court.
At the same time, it needs to be clarified as to how the case of the respondent has to be dealt with. The outcome of the above would be that if the persons below the respondent in the merit list were appointed he shall also be given the appointment. He will be assigned that date of appointment on which the last person in the said selection of the year 2009 was appointed. His notional seniority shall be counted from that date. It is also made clear that in the batch of 2009, he shall be ranked junior most. It is also made clear that the respondent shall not be entitled to any back-wages for the intervening period except the seniority as mentioned above and continuity of service for all other purposes. This order is passed in the facts and circumstances of the present case and it cannot be treated as a precedent."
(emphasis supplied)
14. The main claim of the applicants in both these O.As. is that they are identically placed with Praveen Kumar in O.A. 4616/2014 (supra) and 10 hence in terms of the judgments of Hon‟ble Apex Court in C.A. No.10824/2016 and R.P. (C) No.486/2017, they are also entitled for the benefit of age relaxation, and hence ought to be accorded consideration for selection to the post of Primary Teacher (Post Code 70/09).
15. The respondents have contended that the age relaxation granted by the Hon‟ble High Court in Sachin Gupta's case (supra) was only in the context of those, who had completed ETE course either in the year 2006 or 2007 or 2008, and that it was not an omnibus relaxation. They have also contended that in an identical O.A., being O.A. No.450/2015 titled Durga Parshad & others v. Govt. of NCT of Delhi & others, the Tribunal, vide order dated 22.12.2015, had granted the reliefs that are being claimed by the applicants in the instant O.As. on the basis of decisions in Sachin Gupta and Praveen Kumar (supra). The ibid order of the Tribunal had been challenged by the Govt. of NCT of Delhi and others before the Hon‟ble High Court in W.P. (C) No.5179/2018. The Hon‟ble High Court has been pleased to pass an interim order dated 15.05.2018 in the said W.P. staying the operation of the Tribunal‟s order dated 22.12.2015. They have, thus, contended that the controversy involved in these O.As. could be adjudicated after the fate of said W.P. is decided by the Hon‟ble High Court.
16. We would like to observe that from the judgments of Hon‟ble Apex Court in C.A. No.10824/2016 and R.P. (C) No.486/2017 in the said C.A., it is quite evident that these judgments are in personam and not in rem. Therefore, the applicants in these instant O.As. cannot get any benefit from the said judgments. We also find considerable merit in the submission made on behalf of the respondents that these O.As. could be taken up for 11 adjudication after the disposal of the W.P. (C) No.5179/2018 of the Hon‟ble High Court.
17. In the conspectus, we do not find any necessity to keep these O.As. pending. We dispose them of at this stage by granting liberty to the applicants to seek reconsideration of these O.As. after the disposal of the W.P. (C) No.5179/2018 - Durga Parshad (supra) by the Hon‟ble High Court. No order as to costs.
( S.N. Terdal ) ( K.N. Shrivastava ) Member (J) Member (A) /sunil/