Central Administrative Tribunal - Delhi
Kiran vs Govt. Of Nctd on 1 November, 2023
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Item No.27/ C-3 OA No. 1188/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 1188/2016
Reserved on : 12.10.2023
Pronounced on : 01.11.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Ms. Kiran, Age 36 years,
D/o Sh. Ajeet Singh
(Roll No.69000865),
Post- Librarian
R/o B-12, Mount Everest,
CGHS, Plot No.17,
Sector-09, Dwarka,
New Delhi-110077.
...Applicant
(By Advocates : Mr. Ajesh Luthra and Ms. Vaishali
Sulkhlan)
Versus
1. The Govt. of NCT of Delhi,
Through the Chief Secretary,
Delhi Secretariat,
Players Building, New Delhi.
2. The Secretary,
Delhi Subordinate Service Selection Board,
Govt. of NCT of Delhi,
FC-18, Institutional Area, Karkardooma,
Delhi-110092.
3. The Secretary,
Directorate of Education, Old Sectt.
Govt. of NCT of Delhi,
Delhi-110054.
...Respondents
(By Advocates: Mr. Amit Yadav with Ms. Monika
Bhargava and Ms. Ridhi Dua)
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Item No.27/ C-3 OA No. 1188/2016
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J):-
The applicant in the instant OA is aggrieved by the rejection of her candidature for the post of Librarian under the Post Code 02/13 for being over aged. She ventilates her grievance through the instant OA seeking the following relief(s):-
"(a) to direct the respondents to consider the candidature of the Applicant for selection for the post of librarian by providing her the general age relaxation of 10 years for women candidates and place the name of the Applicant in the list of provisionally selected candidate alongwith names of other candidates already selected and recommended her name for appointment as the applicant has secured 117 marks which are more than the last UR candidate i.e. 113.0 and OBC 73.0 and the Applicant has all the qualifications as per Recruitment Rules.
(b) Direction to the respondents to pay cost of litigation to the Applicants as the Applicants have been dragged to the Tribunal by the respondents.
(C) Any other order as this Hon'ble Tribunal may deem fit under the present facts and circumstances of the case."
2. Briefly narrated by the learned counsel for the applicant, the facts leading to the present OA are that the DSSSB issued an advertisement No.02/2010 dated 3 Item No.27/ C-3 OA No. 1188/2016 12.07.2010 inviting applications from eligible candidates for the post of Librarian in the Directorate of Education under Post Code 69/10. Thereafter, the DSSSB issued another advertisement No.01/13 on 20.03.2013, inviting applications from eligible candidates for the same post (Librarian) in the Directorate of Education under Post Code 02/13. The prescribed age limit as advised by the advertisement is 32 years and certain relaxations with respect to the age have been extended to different categories, in terms of the age relaxation clause provided in the advertisement notice itself one of them being, 3 years for the OBC candidates. In response of these advertisements, the applicant applied under the OBC category and appeared in the common test held for both these Post Codes i.e. 69/2010 and 02/13 on 31.08.2014. The applicant is stated to have secured 117 marks.
3. The mark list of both the Post Codes was uploaded on the website of DSSSB on 17.07.2015. On 17.08.2015, DSSSB issued Public Notice explaining, in case a candidate had applied for both the Post Codes but the name appeared in one mark list only, the 4 Item No.27/ C-3 OA No. 1188/2016 candidate could make a representation up to 21.08.2015, for inclusion of his/her name in the other post code where his/her name may have been missed by the Recruiting Agency (DSSSB). The applicant immediately responded vide representation dated 19.08.2015 informing that she had applied for Post Code 02/13 as well, while her candidature has been considered and rejected against post code 69/10 only. Accordingly her candidature was considered against Post Code 02/13 as well, however rejected being over age. She claimed that having secured merit above the last selected candidate in the post code 02/13, her candidature has been incorrectly rejected on the ground of over age. She further represented seeking age relaxation in terms of the order of the Hon'ble High Court of Delhi in Writ Petition (C) No.1035/2014 titled Asha Vs. Govt. of NCT of Delhi decided on 22.08.2014. The applicant's date of birth is 06.06.1979 and she applied under OBC category. In terms of the advertisement No. 02/13, it is admitted that even after extending relaxation as an OBC candidate, she was above 32 years on the cutoff date in terms of the age limit prescribed in the advertisement. Therefore, she 5 Item No.27/ C-3 OA No. 1188/2016 seeks further age relaxation extended to the women candidates in terms of the Notification issued by the Hon'ble LG on 01.11.1980. The same reads as under:-
"General Age Relaxation of 10 years for Women Candidates for Recruitment to Teachers Post
1. In exercise of the powers vested in him under Rule 43 of the Delhi School Education Rules, 1973, the Administrator is pleased to prescribe for women candidates a general relaxation for 10 years in the maximum age limits prescribed in the Recruitment Rules for recruitment to various posts of teachers in Delhi Schools.
2. The Managing Commitees shall, while considering women candidates for appointment to vacancies in their schools, consider such candidates as per the revised age limit for women candidates."
4. The learned counsel for the applicant argues that the applicant would be entitled for age relaxation of 10 years extended to women candidates in terms of the OM dated 01.11.1980 issued by the Hon'ble LG. The applicant being much higher in merit was entitled for the offer of appointment as she secured 117 marks, as against 73 by the last selected candidate in her category for various posts of teachers. He states that the Govt. of 6 Item No.27/ C-3 OA No. 1188/2016 NCTD issued OM dated 21.01.2011 whereby Librarians were declared teaching staff for all purposes, relevant portion of which reads as under:
"The post of Librarian in Govt. Schools of Dte. of Education, Govt. of N.C.T. of Delhi is hereby declared as teaching post for all purpose with immediate effect and accordingly the Librarians shall avail all benefits applicable to teaching category in prospective manner only. It is further ordered that the Librarian shall be classes also besides the work of Library as and when required by concerned HOS/any other higher authority.
This issue with prior approval of Director of Education."
5. He states that by the aforesaid Order, the Librarians were declared as teaching posts for all purposes by the GNCT of Delhi. He argues that in terms of the relaxation given by the notification dated 01.11.1980 read with notification dated 21.01.2011, the applicant is entitled for the 10 years age relaxation, as extended to the teachers. The applicant since meets all other essential qualifications being 36 years of age, she is entitled for the age relaxation in terms of the above 7 Item No.27/ C-3 OA No. 1188/2016 OM/Order and thereby entitled for the offer of appointment.
6. In addition to the contentions as made in the OA, learned counsel for the applicant filed Written Submissions, wherein he submits that the respondents themselves have accorded age relaxation of 10 years to the women candidates towards Post Code 01/13 of Special Education Teacher vide Addendum dated 26.03.2023. He submits that the reliance placed by the respondents on certain judgments is not tenable. He adds that the instructions dated 01.11.1980, providing age relaxation extended to the women candidates was withdrawn by the Govt. only on 06.03.2020. He argues that if the same were non est as in Raj Bala's case (supra) those were not required to be withdrawn and this fact of withdrawal of provision is stated in order dated 21.06.2021 in OA No.1039/2021, which are cases relating to grant of age relaxation to the women candidates. He attached with the written submissions a Notice dated 26.06.2021, whereby respondents have accorded 10 years age relaxation to women candidates towards Post Codes 33/21, 36/21, 37/21, 40/21, 8 Item No.27/ C-3 OA No. 1188/2016 49/21, 51/21, 55/21 and 57/21 and 03/2021 (Annexure-X-1 of Written Submissions). The learned counsel for the applicant relies on certain judgments, in support of the claim of the applicant. The same reads as under:-
(i) Asha Vs. Govt. of NCT of Delhi & Ors. WP(C) No.1035/2014 decided on 22.08.2014, wherein the Hon'ble High Court observed that non grant of age relaxation of 10 years to women candidates is violative of Article 14 of the Constitution; it amounts to not giving effect to the discretion vested in the respondents for no reason except that they have failed to carry out the necessary consequential amendment to the recruitment rules giving effect to the equation which occurred.
(ii) Smt. Meenakshi Vs. Govt. of NCT of Delhi & Ors. in MA No.1516/2016 in OA No.1529/2016 decided on 02.11.2016, wherein the age relaxation of 10 years was extended and the plea of limitation was rejected.
7. The respondents have filed their counter reply opposing the OA. Learned counsel for the respondents, relying on the counter reply, argues that the DSSSB 9 Item No.27/ C-3 OA No. 1188/2016 issued a public notice on 03.12.2015 showing result of 474 candidates, thereby directing them to appear for document verification. The applicant has secured 117 marks while the last selected candidate under the OBC category for the Post Code 69/10 secured 132 marks and accordingly, her candidature could not be considered for the said post, though the cut off marks for OBC candidates were 73 against post code 02/2013. The applicant was not extended the offer of appointment on the ground of being over aged as against prescribed age limit in the Recruitment Rules. He reiterates that the date of birth of the applicant is 06.06.1979 and even after extending 3 years of age relaxation under the OBC category on the cutoff date, she was over aged. He states that at the relevant point in time, the Notification dated 01.11.1980 was in vogue, however, the same would be rendered redundant considering the fact that the specific Recruitment Rules governing the post to which the applicant is an aspirant were notified in the year 2011. He places reliance on the judgment of the Hon'ble High Court of Delhi in WP(C) No.7240/2017 titled Raj Bala and Anr. Vs. Govt. of NCT of Delhi and Ors. In the said judgment while deciding the issue in hand, the 10 Item No.27/ C-3 OA No. 1188/2016 Hon'ble High Court has taken cognizance of the Writ Petition in Asha's case (supra) relied upon by the applicant. Para 14 of the judgment in Raj Bala (supra) reads as under:-
"14. We are also of the view that the finding returned by the Tribunal that the said notification dated 01.11.1980 cannot be pressed into service after the Rules of 2011 have been framed for the purpose of recruitment of PETs, is correct and does not call for interference. This Court has held in Sachin Gupta (supra) that it is the prerogative of the employer to decide the age limit and academic suitability of candidates whom they wish to employ, and so long as the same are not in conflict with the academic eligibility and age prescribed by the NCTE. Challenge to the said prescription cannot be sustained, merely on the ground that the eligibility conditions render some candidates ineligible."
8. We have heard the learned counsel for the parties and perused the material available on record.
9. It is not in dispute that the applicant was eligible with respect to the age against Post Code 69/10 but with respect to Post Code 02/13, she was over aged. The issue before us is whether the applicant could be extended the age relaxation in terms of the OM dated 01.11.1980. It is seen that the said relaxation is specific 11 Item No.27/ C-3 OA No. 1188/2016 in the case of teachers only. Further, the executive instructions have been over ruled by the Recruitment Rules.
10. The applicant has relied upon the judgment of Asha (supra). However, the Hon'ble High Court in Raj Bala (supra) while deciding the issue at stake has considered the judgment of Asha (supra). Relevant paras 12 and 13 of the said judgment reads as under :-
"12. He also places reliance on the decision of the Division Bench in Asha (supra), and submits that this court should follow the decision in Asha (supra) and not the one rendered by the Division Bench in Sachin Gupta (supra).
13. Having heard learned counsel for the petitioners, we find no merit in these petitions. The foundation of the petitioners' case is the notification dated 01.11.1980 issued by the Hon'ble Lt. Governor under Rule 43 of the DSE Rules granting age relaxation of 10 years to women candidates in respect of posts of Teachers. Firstly, the Division Bench in Sachin Gupta (supra) held that the said notification did not relate to recruitment of Teachers in the DoE of the GNCTD.
We are bound by the said finding and, even otherwise, we see no reason to take a different view. The said issue, firstly, was not raised before the Division Bench dealing with Asha (supra), and Sachin Gupta (supra) was not even considered in the said decision. The issue raised in Asha (supra) was materially different. In that case, despite the post of Librarian in Government Schools of the DoE having been declared as teaching posts for all purposes with immediate effect on 21.01.2011, the age relaxation applicable to women candidates was not being extended to those applying for the post of 12 Item No.27/ C-3 OA No. 1188/2016 Librarian, even though the same was granted to women candidates applying for other posts of teachers in the DoE. It is on the aforesaid premise that the action of the respondent - GNCTD was found to be discriminatory by this Court, and this Court directed the respondents to grant the said age relaxation to the petitioner Asha as well. It was not urged before the Division Bench in Asha (supra), that the said age relaxation granted by the Hon'ble Lt. Governor vide notification dated 01.11.1980 did not apply to recruitments by the DoE in the GNCTD. The decision in Sachin Gupta (supra), which is an earlier decision of a Division Bench of this Court was not even brought to the notice of the Court while dealing with Asha (supra). Therefore, it cannot be said that there is any conflict of judicial opinion between Sachin Gupta (supra) and Asha (supra). In any event, the reliance placed by the petitioners on the notification dated 01.11.1980 appears to be misplaced and is of no avail."
11. So far as the judgment relied upon by the applicant in the case of Meenakshi (supra), it is seen that the same was dismissed on the ground of limitation. The relevant portion of the said judgment reads as under:-
"14. As in the instant case the applicant is claiming age relaxation and also praying for quashing of the notice dated 10.9.2013, whereby her candidature for Post Code 02/13 was rejected by the respondent-DSSSB on the ground of her being overage, on the basis of the judgment dated 22.8.2014 passed in W.P. (C) No. 1035 of 2014 (Asha Vs. Government of NCT of Delhi & others), it would be apposite to quote paragraphs 13 to 17 of the said judgment:13
Item No.27/ C-3 OA No. 1188/2016 "13. In view of the GNCTD's silence as to the supersession or inapplicability of the 01.11.1980 circular - clearly its position that age relaxation for women candidates cannot be granted, is violative of Article 14 of the Constitution; it amounts to not giving effect to the discretion vested in it for no reason except that it has failed to carry out the necessary consequential amendment to the recruitment rules giving effect to the equation which occurred. The GNCTD also does not dispute that for other categories of teaching staff or teachers in its schools, the 10 year relaxation, based upon 01.11.1980 circular or rules-which assimilated its mandate, have been given effect to.
14. The impugned order of the Tribunal also has noticed a judgment of this Court in Smt. Promila Dixit v. GNCTD in W.P.(C.) No.1234/2010 decided on 26.11.2010, where an identical contention with respect to the equation of TGT with librarian for the purposes of recruitment and age relaxation was upheld. This Court is of the opinion that this being the position even before the issuance of 21.01.2011 circular, the GNCTD's stand in this case appears to be obstinate to put it mildly. Furthermore, the CAT, in our opinion, fell into error in ignoring a direct judgment on the issue even after noticing its effect and purport.
15. For the foregoing reasons, the petition has to succeed. The impugned order of the CAT is, accordingly, set aside. The respondents are hereby directed to accept the petitioner's application and allow her to appear in the competitive examination scheduled on 31.08.2014.
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Item No.27/ C-3 OA No. 1188/2016
16. The petitioner shall be intimated about her examination centre etc. on 27.08.2014 by the concerned officer of the DSSSB. For that purpose, she shall appear before the concerned officer of the DSSSB on 27.08.2014. The respondent GNCTD is directed to coordinate with the DSSSB and ensure that the petitioner is given the Admit Card as well as intimation about the examination centre etc. on 27.08.2014. The petitioner shall present in the office of the respondent/DSSSB at 11:00 a.m. on that day.
17. The writ petition is allowed in the aforesaid terms."
(Emphasis supplied) From the above judgment, it is clear that the Hon'ble High Court of Delhi did not intend to give benefit to all similarly situated persons, whether they approached the Court or not. Therefore, the applicant had to explain the delay for the period from 10.9.2014, i.e., after expiry of one year from 10.9.2013 when the rejection notice was published, till 28.4.2016, i.e., the date preceding the date of filing of the O.A.. Save and except stating about the declaration of results of the common written test for both Post Codes 69/10 and 02/13 on 17.7.2015, non-publication of the result of Smt. Asha, and judgment passed by the Hon'ble High Court of Delhi in the case of Smt. Asha, the applicant has not shown any cause for not filing the O.A. within the prescribed period of limitation of one year from 10.9.2013 when the impugned rejection notice was published by the respondent-DSSSB. After having considered the facts and circumstances of the case, in light of the decisions referred 15 Item No.27/ C-3 OA No. 1188/2016 to above, we are unable to agree with the applicant that the cause of action arose on 17.7.2015 for filing the O.A. The applicant having failed to satisfy us that she had sufficient cause for not making the application within the prescribed period of limitation of one year from 10.9.2013, we are not inclined to condone the delay of more than one and half years, i.e., from 10.9.2014 to 28.4.2016.
Therefore, MA No.1516 of 2016 filed by the applicant for condonation of delay in filing of O.A.No.1529 of 2016 is rejected. Consequently, O.A. No.1529 of 2016 is rejected as being barred by limitation."
12. In the instant matter also, the applicant is not just similar but identically placed as in the case of Meenakshi (supra) and Raja Bala (supra). The OA was filed in the year 2016 against the same Post Code and the Tribunal did not interfere in the similar facts of the case of Meenakshi (supra) as it was considered to be barred by limitation. The judgment in Asha (supra), may not come to the rescue of the applicant as the cognizance of the same has been taken by the Hon'ble High Court of Delhi while deciding the matter in Raj Bala (supra) relied upon by the respondents. The applicants have placed reliance on the judgment of Shelja Dhama in OA No.1039/2021 and batch, wherein the candidates were aspiring to the post of Trained 16 Item No.27/ C-3 OA No. 1188/2016 Graduate Teacher (TGT) while in the instant OA, the applicant is seeking appointment to the post of Librarian.
13. The issue at stake has been further decided by the same Bench of this Tribunal in OA No.1019/2019 decided on 20.09.2023 in the matter of Kirti Vs. Govt. of NCT of Delhi & Ors. The judicial discipline binds us. The facts, issues and prayer have a striking similarity. For the sake of clarity, the relevant portion of the said Order is reproduced herein below:-
"7. It is seen that the Recruitment Rules were notified under Article 309 of the Constitution of India and had been prevailing as against the relaxation granted by the Hon'ble Lt. Governor. The relaxation to women candidates by the Hon'ble Lt. Governor vide notification dated 01.11.1980 in exercise of powers under Rules 43 of the Delhi School Education Rules was granted when the pre-existing rules were in force. With the enforcement of the amended Recruitment Rules, it could not be said that the said relaxation continued.
8. In this regard, we are guided by the judgment of this Tribunal in OA No.3167/2017 Asha & Another Vs. Govt. of NCT of Delhi & Ors. dated 19.03.2019, following the judgment of Hon'ble High Court of Delhi in Raj Bala (supra) decided on 23.08.2017 referred to hereinabove. Relevant portion of the judgment of Hon'ble High Court in Raja Bala (supra) reads as under :-17
Item No.27/ C-3 OA No. 1188/2016 "14. We are also of the view that the finding returned by the Tribunal that the said notification dated 01.11.1980 cannot be pressed into service after the Rules of 2011 have been framed for the purpose of recruitment of PETs, is correct and does not call for interference. This Court has held in Sachin Gupta (supra) that it is the prerogative of the employer to decide the age limit and academic suitability of candidates whom they wish to employ, and so long as the same are not in conflict with the academic eligibility and age prescribed by the NCTE. Challenge to the said prescription cannot be sustained, merely on the ground that the eligibility conditions render some candidates ineligible."
9. Though the applicant has relied on a judgment of Hon'ble High Court of Delhi in Gauri Sharma (supra), however, that is not relevant so far as the facts of the present case are concerned.
10. In view of the aforesaid facts and circumstances and the law on the subject, we do not find any merit in the present OA and the same is, accordingly, dismissed."
14. For the reasons explained hereinabove, the OA is dismissed being devoid of merits. There shall be no order as to costs.
(Pratima K Gupta) (Tarun Shridhar)
Member (J) Member (A)
/rk/