Delhi High Court - Orders
Prashant Kumar vs Govt. Of Nct Of Delhi & Ors on 7 December, 2022
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Anoop Kumar Mendiratta
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1659/2021 & CM APPL. 4740/2021
PRASHANT KUMAR
..... Petitioner
Through: Mr. Pratap Shankar and Mr. Vivek
Singh, Advs.
versus
GOVT. OF NCT OF DELHI & ORS.
..... Respondent
Through: Mrs. Avnish Ahlawat, Standing
Counsel GNCTD with Ms. Tania
Ahlawat, Mr. Nitesh Kumar Singh,
Ms. Laavanya Kaushik and Ms. Aliza
Alam, Advs.
Mr. Sarfaraz Khan and Mr. Mirza
Amit Baig, Advs. for R-2
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
% 07.12.2022
1. This petition has been filed by the petitioner challenging the order dated December 18, 2020 of the Central Administrative Tribunal (hereinafter referred to as 'Tribunal') whereby, the Tribunal has dismissed the petition filed by the petitioner challenging the decision of the respondents denying age relaxation for making appointment to the post of Manager (Traffic) in DTC.
2. The facts as noted from the record are, the petitioner was appointed as Manager (Traffic) on October 12, 2011 on contractual basis. At the time of Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:12.12.2022 19:50:36 his appointment as Manager (Traffic) on October 12, 2011, his age was less than 35 years, which is the maximum age prescribed under the Rules for making appointment to the said post on regular basis.
3. On October 20, 2015 an advertisement was issued by the Delhi Subordinate Services Selection Board (hereinafter referred to as 'DSSSB') inviting applications against certain posts which included two posts of Management (Traffic). The petitioner appeared in the examination process and the result was announced on March 13, 2019. Thereafter, on March 14, 2019, an order was issued rejecting the candidature of petitioner on the ground of him being over-age. He made representations to the respondents and thereafter filed an O.A. No. 147/2020, before the Tribunal which was disposed of on January 16, 2020, with a direction to the respondents herein to dispose of the representation, dated March 18, 2019 of the petitioner.
4. The DSSSB, through its order dated August 17, 2020, rejected the candidature made by the petitioner, inter alia stating as under:-
"4. Whereas, the candidate, Sh. Prashant Kumar (Roll No, 13700222) under UR category was 36 years 08 months 25 days as on the closing date of receipt of applications i.e. on 26.11.2015 being his date of birth as 01.03.1979, he was overage by 01 year 08 months 25 days. The candidate, Sh. Prashant Kumar, however, applied under UR, DGS category and claimed relaxation in age as Departmental candidate as he has working in DTC on Contract basis. The user department i.e. DTC vide letter dated 28/02/2020 has issued age relaxation certificate wherein it has been mentioned that Sh. Prashant Kumar Roll No. 13700222 is working as. Manager (Mechanical/Traffic) on contract basis in this corporation w.e.f. 12.10.2011 to till date and he is accordingly allowed for extending the age relaxation for the Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:12.12.2022 19:50:36 post of Manager (Traffic), post Code-25/15 in DTC w.e.f. 12.10.2011 to 26.11 .2015 (04 years 04 days) as against actual requirement 01 year 08 months 25 days i.e. cutoff date fixed for receipt applications by DSSSB in accordance to O.M. dated 11 .06.2019 as well as circular dated 10.7.2019 issued by Special Secretary (Services), GNCTD In this regard being a departmental candidate.
5. The Circular dated 10/0712019 states in para 3 (1) that "The clause of relaxation in upper age limit to the contractual employees in accordance with OM dated 11.06.2019 be invariably indicated while sending requisitions for direct recruitment quota vacancies".
6. Whereas, the user department has not provided any provision in the recruitment rules for age relaxation to the Contractual employee. the recruitment to the post of Manager (Traffic) has been done as per provisions given in the recruitment rules for educational qualification / experience / age limit etc. The referred O.M. dated 11.06.2019 and circular dated 10.07.2019 is issued after declaration of result for the post code-25/15. The said office memorandum dated 11.06.2019 and 10.07.2019 are applicable prospectively for the vacancies to be advertised after that date. It cannot be made applicable retrospectively for the vacancies notified in 2015.
7. Further, the recruitment process for the post code-25/15 had already been closed before issuance of the O.M. dated 11.06.2019 & Circular dated 10/0712019. The result of the above post code was declared on 13.03.2019. The statutory provisions in the RRs cannot be overruled by simple ex-post facto administrative orders and hence, the rejection made by the DSSSB is justified & correct. The user department i.e. Delhi Transport Corporation had already been informed that recruitment process for the post of Manager Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:12.12.2022 19:50:36 (Traffic) Post Code-25/15 has been closed vide closure report dated 19.03.2019.
8. Therefore, after considering the representations dated 18.03.2019 & 08.11.2019 in compliance of the directions passed by the Hon'ble CAT in O.A. No. 14712020 dated 16.01.2020, the rejection of candidature of Sh. Prashant Kumar (Roll No. 13700222) was found in order and correct. Hence, the aforementioned representations submitted by the candidate stand disposed of accordingly."
5. It was the case of the petitioner before the Tribunal that, as per the advertisement, the petitioner had applied for relaxation of age for departmental candidates. It was also contended that the petitioner is working on a post that carries the same responsibility of the post as advertised for. Further, it was averred that, it is not for the DSSSB, but for the user department, i.e., the DTC, to decide whether age relaxation should be provided or not. The DTC issued a certificate dated February 28, 2020 stating that age relaxation may be provided to the petitioner.
6. The case set up by the DSSSB, which was the respondent No.2, before the Tribunal, was that the eligibility has to be determined in terms of recruitment rules supplied by the user department. In the case in hand, the user department i.e., DTC did not refer to any provision of the recruitment rules through which the applicant became entitled for age relaxation. With reference to OMs dated June 11, 2019 and July 10, 2019, it has been submitted that, they are applicable after the date of declaration of result and shall have prospective effect. The respondent No.3, DTC had also filed a reply before the Tribunal stating that, it is for the DSSSB to take a decision in view of the existing rules and that the representation made by the Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:12.12.2022 19:50:36 petitioner was sent to the DSSSB for consideration. The Tribunal in its impugned order, by referring to the impugned order passed by the DSSSB, which was subject matter of challenge before it, has in paragraphs 14 to 18, held as under:-
"14. In the present case, DTC is the user department, DSSSB is an examining body which carries out the process of selection on the basis of terms and conditions and RRs as supplied to them by the user department. We find nothing on record to show that the user department in the present case had sent any communication to DSSSB to the effect that the benefit of age relaxation has to be provided to contractual employees also on the same terms as regular employees. Even in the submissions made by the DTC through their counter reply, as also in the submissions made by the learned counsel, it has nowhere been found that DTC at any point of time conveyed to DSSSB that age relaxation has to be provided to contractual employees also.
15. During the course of the submissions, policy guidelines dated 19.10.2015 have been referred to. The advertisement for the post was issued on 20.10.2015 but if the said policy guidelines of 19.10.2015 h ad any bearing on the advertisement issued on 20.10.2015, it was the responsibility of the user department, DTC in this case, to send a fresh requisition which could have led to the issuance of a fresh advertisement. There is nothing on record to show that such an action was undertaken. As regards the other OMs referred to, namely those dated 11.06.2019 and 10.07.2019, as they were issued much after the selection process was over, they obviously would not have any bearing on any decision by the DSSSB.
16. The matter relating to the certificate dated 28.02.2020 through which DTC has communicated to DSSSB that the applicant deserves to be provided age relaxation also came up during the course of the arguments. To say the least, we find it strange that DTC chose to issue a certificate specifically for one person. If it was the intention of the DTC Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:12.12.2022 19:50:36 to convey to DSSSB that contractual employees were entitled and eligible for age relaxation on the same footing as regular employees, the same could have been conveyed through a general principle instead of confining it to just one candidate. Further ,once the recruitment process has started it is generally impermissible to change the rules of the game except in the most exceptional circumstances.
17. Such a stand cannot be taken in respect of a particular individual only. If the benefit of age relaxation is to accrue to contractual employees, the same is needed to be applied across the board so that all contractual employees could be equally benefitted. Without making further comments on the issue, we are firmly of the opinion that such a communication could not have been taken into consideration for granting any benefit to the applicant and DSSSB was correct in ignoring the same.
18. In view of the discussion above, we find no merit in the present OA and hold that no benefit can be given to the applicant alone of the nature prayed for. It is, however, open to DTC, within the limits permissible by law, to start the recruitment process afresh by clearly enunciating provisions under which the recruitment has to be carried out so that equal opportunity is provided to all candidates similarly placed. On the other hand, they may choose to accept the outcome of the recruitment which has already taken place. Needless to say, any decision will have to be made within the parameters of law."
7. Today, the learned counsel for the petitioner has drawn the attention of the Court to page 70 of the paper book, which is the advertisement issued by the DSSSB, on the asking of the DTC. The relevant part of the advertisement relating to the post of Manager (Traffic) reads as under:-
Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:12.12.2022 19:50:368. It is his submission that the advertisement contemplates the age limit to be 18-35 years and relaxation in upper age limit to departmental candidates as per the DOPT guidelines shall be given. The submission of the counsel is that the petitioner at the time of his initial engagement on contract basis, in the year 2011 was within the age stipulated in the advertisement. In other words, the age of the petitioner was less than 35 years. He further submits that, as the petitioner was working in the DTC, he must be construed as a departmental candidate. Through his application in terms of the advertisement, the petitioner was seeking a regular appointment in the DTC itself and his candidature could not have rejected on the ground that, he was beyond the permissible age limit. He states, the age relaxation should have been granted.
9. In support of his submission, he has relied upon judgment of the Supreme Court in the case of Union Public Service Commission v. Dr. Jamuna Kurup & Ors., (2008) 11 SCC 10, wherein the Supreme Court held that, the term 'employee' as defined in the DMC Act, 1957 shall also include an employee who is a contractual employee of that department i.e., MCD, in that case. He has also relied upon the judgment of a Co-ordinate Bench of this Court in the case of Delhi Subordinate Services Selection Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:12.12.2022 19:50:36 Board & Anr. V. Preeti Rathi & Ors., 2011 SCC OnLine Del 4761, to contend that, a department candidate shall be a person who is not a outsider but is already working in concerned department (namely MCD in that case).
10. According to him, the petitioner must be construed as a departmental candidate for the benefit of age relaxation to the post in question and the Tribunal / respondents could not have rejected the case on the ground that, he is over-age. In fact, it is the submission of the counsel for the petitioner that the petitioner having cleared Tier I and Tier II examination is eligible for appointment, and the same need to be granted.
11. He seeks the prayer as made in the writ petition.
12. On the other hand, Mrs. Ahlawat would not seriously contest the legal position as relied upon by the learned counsel for the petitioner in the aforesaid two judgments. Her only submission is that, during the pendency of this writ petition, in view of order of this Court dated November 24, 2021, the matter was referred to DOPT by the DSSSB and DOPT in its communication dated July 11, 2022 has stated that as per the DOPT OM dated October 23, 2000, the benefit of at least three years' continuous service in Central Government, is only in respect of the Central Government Employees appointed on regular basis as per Recruitment Rules, and as such the benefit is not available to those appointed on short term contract.
13. Having noted the stand of the respondents including the DOPT, suffice to state, we are not in agreement with their stand in view of the stipulation in the advertisement read with the judgment of the Supreme Court and this Court in Dr. Jamuna Kurup (supra) and Preeti Rathi (supra). In the judgment of Preeti Rathi (supra), the Co-ordinate Bench of this Court has in paragraph 13, referred to the judgment of the Supreme Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:12.12.2022 19:50:36 Court in the case of Dr. Jamuna Kurup (supra), and held that, department candidates shall include a candidate who is already working in the concerned department, but not an outsider. The said paragraph of the judgment is reproduced 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 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.
14. It is not disputed that the petitioner was working in the DTC, respondent No.3 on contractual basis since 2011. If that be so, in view of the law, being a departmental candidate, the petitioner should have been granted the benefit of age relaxation.Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:12.12.2022 19:50:36
15. We find that the Tribunal has not considered the plea urged by the counsel for the petitioner before it, in the impugned judgment.
16. In view of the clear position of law, this writ petition needs to be allowed. It is held that the petitioner is entitled to age relaxation in terms of the advertisement as reflected above.
17. After giving the age relaxation, if the petitioner is found successful in the examination process, further action shall be taken by DSSSB in accordance with the advertisement and Rules for ensuring the appointment of the petitioner as Manager (Traffic) in the DTC.
18. This exercise shall be carried out within a period of eight weeks from today.
19. The petitioner shall not be entitled to any back wages but shall be given seniority as per the selection in the examination in question.
20. With the above, the petition is disposed of.
V. KAMESWAR RAO, J ANOOP KUMAR MENDIRATTA, J DECEMBER 07, 2022/ds Signature Not Verified Digitally Signed By:DHARMENDER SINGH Signing Date:12.12.2022 19:50:36