Central Administrative Tribunal - Delhi
Ms. Naseema Khatoon vs South Delhi Municipal Corporation on 9 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.956/2012 MA No.800/2012 MA No.179/2013 New Delhi this the 9th day of December, 2013 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) Ms. Naseema Khatoon W/o Shri Ashraf Khalil D/o Shri Abdul Ghafoor R/o J-17/35, Street No.8 Chauhan Bangar, Seelampur Delhi-110053 Applicant (Through Mr. M. Rais Farooqui, Advocate) VERSUS 1. South Delhi Municipal Corporation Through its Commissioner Dr. Shyama Prasad Mukherjee Civil Centre, Jawahar Lal Nehru Road, Delhi-110002 2. Delhi Subordinate Services Selection Board (DSSSB) Through its Chairman 3rd Floor, UTCS Building, Vishwas Nagar, Shahdara, Delhi-110032 3. Govt. of National Capital Territory of Delhi Through its Chief Secretary, New Secretariat, I.P. Estate, New Delhi Respondents (Through Mr. B.N.P. Pathak and Mr.Umesh Joshi, Advocates) O R D E R Mr. P.K. Basu, Member (A):
The applicant was engaged as Primary Teacher by the Municipal Corporation of Delhi (MCD), respondent no.1, on contract basis in the year 2003 and has been working as such ever since on extension from time to time. The Recruitment Rules (RRs) for Primary Teacher were amended vide notification dated 13.07.2007 through which the upper age limit for appointment of Primary Teachers was reduced from 32 to 27 years for male teachers and from 42 to 27 years for female teachers. An additional condition was put of 50% marks in Senior Secondary level. Based on the amended RRs, an advertisement in the employment news dated 6-12 October, 2007 for appointment of Teacher (Primary) and Teacher (Primary-Urdu) was published by the respondents with post code 165/07 and 166/07 respectively. The said amendment in RRs was challenged by the applicant before the Honble High Court of Delhi wherein interim directions were issued and the applicant was allowed to appear in the examination to be conducted by respondent no.2 (Delhi Subordinate Services Selection Board) on provisional basis vide order dated 25.10.2007. The applicant appeared in the examination. The Writ was disposed of vide judgment dated 11.08.2008 whereby the Honble High Court of Delhi directed the respondents to permit all those candidates 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). The Honble High Court of Delhi further held that this relaxation will be independent of the relaxation applicable to the reserved categories and accordingly upheld the amended RRs. The applicants results were withheld on the ground of overage and marks below 50% in Senior Secondary.
2. The applicants grievance is that though he has received better marks (104/200 Rank 4737 and 117/200 Rank 92) to the last selected candidates obtaining marks 86/200 and 77/200 for the relevant post codes for the appointment of Teacher (Primary), she has not been selected.
3. Heard both the parties.
4. The applicants case is that she has been working on contract basis with respondent no.1 from before the time of amendment in RRs and though she was within the prescribed age limit at that time (i.e. for appointment on contract basis) as per the RRs applicable at that point of time, she was not considered by the respondents. It is argued that the amended RRs provide for power to relax and thus the respondents were obliged to relax the age of the candidates as they were in service as Primary Teacher on contract basis with the respondents. Further, it is stated that the Honble High Court of Delhi has also directed the respondents that the said relaxation shall be applicable to all the persons/ candidates who have been permitted to appear in the examination.
5. The applicant further relies on orders passed by this Tribunal in OA No. 4260/2011, Anil Kumar Vs. Govt. of NCT of Delhi & ors., whereby this Tribunal set aside the fixation of percentage of marks against the same post code 165/2007 and gave appointment to the candidates, who had also obtained less than 50% marks in Senior Secondary. The applicant is seeking the same relief for herself. She also relies on the order of the Honble High Court of Delhi in Writ Petition No.1641/2011, DSSSB & anr. Vs. Preeti Rathi & ors., directing to give relaxation to the candidates considering them as departmental candidates for appointment to the post of Teacher (Primary). The applicant further relies on the order of this Tribunal in TA 23/2011, Veena Kumari & ors. Vs. DSSSB & ors. where, in similar circumstances, the age relaxation was allowed.
6. The respondents in their reply have stated that the RRs notified on 13.07.2007 were challenged in the Honble High Court and the Honble High Court on 28.08.2008 in the case of Sachin Gupta Vs. DSSSB, 152 (2008) DLT 378 (DB) passed the following orders in court cases relating to challenging the RRs:
To conclude the language and marks criteria (namely passing of Hindi subject at primary level and minimum 50% marks in Senior Secondary Examination) are upheld in their entirety. Even the age criteria (namely minimum and maximum eligibility age as 20-27 years respectively) is upheld but with a view to ameliorate the hardship of already enrolled students in ETE courses, it is directed that the respondents would permit all those candidates who have completed the ETE courses either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the respondents for the posts 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 fulfill all other eligibility conditions. When the scrutiny of the applicants dossiers was undertaken, the applicant was found overage and further that her case was not covered by the judgment of the Honble High Court dated 28.08.2008 as the petitioner had not done Diploma/ ETE course in the year 2006, 2007 or 2008 and also the petitioner did not fulfill the condition of 50% marks in Senior Secondary and that she admittedly secured 44% marks in Senior Secondary. It is further argued that the claim of the petitioner for age relaxation on the ground that she is working with the user department i.e. MCD on contractual basis, cannot be considered as there is no provision of age relaxation to the contractual teachers in the RRs for the post.
7. The respondents also argued that identical matter involving issue of having less than 50% marks has been dismissed by the Tribunal in Seema Vs. Delhi Subordinate Services Selection Board, TA 1204/2008. Moreover, it has been argued that the applicant in OA 4260/2011, relied upon by the applicant, was an ex-serviceman and was eligible for relief as per the Govt. of India instructions while in the case of the applicant, she belongs to OBC category and there is no provision to grant relaxation in marks in educational qualifications to OBC candidates.
8. The Government amended the RRs in July, 2007, reducing the age limit to 27 years and adding an additional condition of having 50% marks in the Senior Secondary examination. Admittedly, the Honble High Court has upheld this order. Therefore, there is no dispute that the respondents have to scrutinize the eligibility of the candidates based on the amended RRs. The question which arises is whether the applicant is entitled to get any benefit of age relaxation as she was already working with the respondents on contract basis and, at the relevant time, was within the prescribed age limit according to the rules prevalent at that time. Secondly, admittedly she has obtained less than 50% marks and the issue that arises is whether she is entitled to any relaxation in the cut off marks as well.
9. On the first question of age relaxation, the applicant relied on the judgment of the Honble High Court in Preeti Rathi (supra) where the Court held as follows:
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 having worked for this period, in that case also they would fall within the prescribed age limit.
10. On the question of age relaxation, the applicant also relied on the order of this Tribunal in Veena Kumari (supra) where, relying on a judgment of the Honble Apex Court in Union Public Service Commission Vs. Dr. Jamuna Kurup & ors., (2008) 11 SCC 10, the Tribunal also directed to grant age relaxation to teachers who were already working on contract basis. In view of the above cited judgments, the prayer for age relaxation is justified.
11. The judgment of the Tribunal in Anil Kumar (supra) was relied upon by the applicant on the question of relaxation in 50% marks in Senior Secondary exam but we notice that this matter relates to ex-serviceman and, therefore, cannot be applied in the present case. As pointed out by the learned counsel for the respondents, there is provision for relaxation in marks for ex-serviceman. Respondents relied on orders of this Tribunal in Seema Vs. DSSSB (supra) in which the petitioner, an OBC candidate for the post of Primary Teacher in MCD had been claiming the benefit of 5% relaxation in the stipulation of minimum 50% marks in the Senior Secondary Examination, prescribed as one of the essential eligibility qualifications for the post, and the Tribunal had dismissed the said petition. The respondents have made it clear that while the Honble High Court had made a special dispensation in age relaxation for those candidates who had passed ETE course in the year 2006, 2007 or 2008, the applicant is not covered in this category. Thus, the applicant is clearly not eligible for any relaxation on the condition of 50% in the Senior Secondary examination.
12. Therefore, while the applicant is eligible for age relaxation based on the decision of this Tribunal in TA 23/2011 as well as judgment of the Honble High Court in Writ Petition No.1641/2011, there is no ground for granting relaxation in the requirement of minimum of 50% marks in Senior Secondary examination for the applicant. As such, the prayer of the applicant for appointment as Primary Teacher cannot be allowed. The OA is, therefore, dismissed. No costs.
( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) /dkm/