Central Administrative Tribunal - Delhi
Ms. Sunita Kumari D/O Shri Jagdish ... vs Municipal Corporation Of Delhi on 4 July, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.636/2011 Order reserved on 30th May 2012 Order pronounced on 4th July 2012 Honble Shri Shailendra Pandey, Member (A) Honble Shri A.K. Bhardwaj, Member (J) 1. Ms. Sunita Kumari d/o Shri Jagdish Prasad r/o 1/26, Aman Apartment Plot No.39, Sector 13, Rohini Delhi-85 2. Ms. Safiya Khatoon d/o Shri Nasir Ali r/o F-53/1, Abul Fazal Enclave-II Shaheen Bagh, Okhla New Delhi-25 3. Ms. Shivani Thakur d/o Shri Devi Singh r/o X-244, Street No.6 Brahampuri, Delhi-53 4. Ms. Suman d/o Shri Mahavir Singh r/o 311, Virat Apartment Mianwali Nagar, Paschim Vihar New Delhi-87 5. Ms. Shehnaz Begum d/o Shri Rafique Ahmad r/o RZ-750/23 Tughlakabad Extension New Delhi-19 ..Applicants (By Advocate: Shri M R Farooqui) Versus 1. Municipal Corporation of Delhi Through its Commissioner Town Hall Chandni Chowk Delhi-6 2. Delhi Subordinate Services Selection Board (DSSSB) Through its Chairman 3rd Floor, UTCS Building Vishwas Nagar, Shahdara Delhi-32 3. Govt. of NCT of Delhi Through its Chief Secretary New Secretariat IP Estate, New Delhi ..Respondents (By Advocates: Shri Adeel Siddiqui for respondent No.1 Ms. Alka Sharma for respondent Nos. 2 & 3) O R D E R
Shri A.K. Bhardwaj:
As can be gathered from the facts stated by the applicants in the original application, they were engaged as primary teacher in Municipal Corporation of Delhi (MCD) on contract basis in the years 2005 (applicant Nos. 1 to 3) and 2001 (applicant Nos. 4 & 5). Their initial appointment was for six months but could be extended from time to time till date. As can be seen from office order dated 4.10.2005 (Annexure A-1), the contractual engagement of applicants as primary teacher was for the period specified in the order till receipt of select list of regularly selected teachers from DSSSB. On 13.7.2007 recruitment rules for the post of Teacher (Primary) MCD were amended. In terms of the recruitment rules so amended, the maximum age limit for appointment as primary teacher (male) was reduced from 32 to 27 years and for primary teacher (female) from 42 to 27 years. After amendment of relevant recruitment rules as above, respondents published advertisement No.08/2007 inviting applications for the post of Teacher (Primary) and Teacher (Primary Urdu), i.e., post code Nos.165/2007 and 166/2007. In the meantime, in a batch of writ petitions, i.e., Writ Petition (Civil) No.7297/2007 etc. the Directorate of Educations notification dated 8.5.2006 and Department of Urban Developments notification dated 13.7.2007 in terms of which recruitment rules for appointment to the post of Assistant Teacher (Primary) in Govt. of NCT of Delhi and MCD were challenged. Said writ petitions were decided in terms of judgment dated 28.8.2008 passed by Honble Delhi High Court upholding the age criteria, namely, minimum and maximum eligibility age as 20 to 27 years. However, respondents were directed to permit all those candidates who had completed ETE course in the years 2006, 2007 or 2008 to appear in the examination to be conducted by the respondents for the post of Assistant Teacher (Primary) once each in MCD and NCTD provided they had not exceeded the upper age limit of 32 years for males and 42 years for females. Para 64 of said judgment reads as under:-
64. 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 amellorate 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 course either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the Respondents for the posts of Assistant Teachers (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. This would also apply to candidates, who have already taken the examination as permitted by this Court. This relaxation will be independent of the relaxation applicable to reserved categories. However, the Relaxation granted by this Court shall cease to operate for the ETE courses after 2008 i.e. commencing from 2009 as from 30th September, 2007 the maximum age limit for ETE course has been reduced from 30 years to 24 years. Except to the above extent, legality and validity of the impugned RRs are upheld and accordingly the entire batch of writ petitions are disposed of in the above terms with no order as to costs.
2. As is stated by applicants in para 4.6 of the original application in terms of the interim directions issued in said writ petition, they were allowed to participate in the examination held for the post of Assistant Teacher (Primary) in MCD advertised vide advertisement No.8/2007 published in employment news dated 6-12.10.2007. As the respondents have withheld the result of the aforementioned examination in respect of the applicants, they have filed the present original application seeking issuance of direction to them to declare their result and to give them consequent appointment as primary teacher after according benefit of age relaxation available to departmental candidates. Although they have raised several grounds in paras 5.1 to 5.10 of the OA, during the course of arguments applicants only contended that their claim is squarely covered by the judgment in OA-714/2009 and decision of Honble High Court in W.P. (C) No.1641/2011 delivered on 15.11.2011.
3. On the other hand, in the counter reply filed on behalf of respondents, it is pleaded that the examination in which applicants appeared was held pursuant to advertisement published in July 2008, thus, present OA filed by them seeking issuance of direction for declaration of result of said examination is barred by limitation. In support of said plea, they have relied upon the following decisions of this Tribunal and Honble Supreme Court:-
Dhiru Mohan v. Union of India Full Bench CAT 1989-1991 Vol.II page 448, Rattan Chand Samanta v. Union of India, 1994 SCC (L&S) 182, S S Rathore v. Union of India & others, AIR 1990 SC 10, Karnataka Power Corporation Limited through its CMD & another v. K. Thangappan & another, (2006) 4 SCC 322, Durga Prashad v. Chief Controller of Imports & Exports, (1969) 1 SCC 185, Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, (1874) 5 PC 221, Moon Mills Limited v. M.R. Mehar, AIR 1967 SC 1450, Maharashtra SRTC v. Shri Balwant Regular Motor Service, AIR 1969 SC 329, State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566, K.V. Rajalakshmiah Setty v. State of Mysore, (1967) 2 SCR 70, State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396; and State of Orissa v. Arun Kumar Patnaik, (1976) 3 SCC 579.
4. It is further pleaded by respondents that as the applicants were parties in W.P. (C) No. 7297/2007 etc. they are estopped from filing the present original application. It is also contended on behalf of respondents that the benefit of judgment in said writ petition was available only to such candidates, who had completed their ETE course during the years 2006, 2007 or 2008 and once the claim of applicants regarding age relaxation was determined in the aforementioned batch of writ petitions, they cannot re-agitate the same before this Tribunal.
5. Ms. Alka Sharma, learned counsel appearing for respondent Nos. 2 & 3 referred to the decisions of this Tribunal in Jyoti Dua & others v. DSSSB & others (OA-751/2010 with OA-1540/2010) decided on 4.8.2011. Making reference to the said decisions, she pleaded that despite the judgment of the Honble High Court of Delhi in the case of Sachin Gupta (supra), the applicants in the present original application are not entitled to the relief of declaration of result and their consequent appointment, as they are not covered by the conditions laid in para 64 of said judgment.
6. She also relied upon the order passed in Rekha Rani v. Delhi Subordinate Services Selection Board (OA-783/2011) decided on 30.3.2012 and judgment of the Honble Supreme Court in Sec, UPSC & another v. S Krishna Chaitanya (Civil Appeal No.6349/2011) decided on 5.8.2011.
7. In the rejoinder filed on behalf of applicants, it is pleaded that they approached the respondents authorities for declaration of their result time and again but to no effect, thus, after judgment of this Tribunal in OA-714/2009 they have approached this Tribunal to seek benefit of said judgment. They also pleaded that it is stare decisis that once they are seeking benefit of a judgment, law of limitation would not come in their way for such relief. Applicants reiterated their reliance on judgment of Honble Delhi High Court in the case of Delhi Subordinate Services Selection Board & another v. Preeti Rathi & others (WP (C) No.1641/2011) decided on 15.11.2011.
8. We have heard the learned counsel appearing for the parties and perused the record.
9. We find that in W.P. (C) No.7297/2007 (Sachin Gupta & others v. DSSSB & others), the issue before Honble Delhi High Court was the vires of the Directorate of Educations notification dated 8.5.2006 and Department of Urban Developments notification dated 30.7.2007. Whether contractual teachers are entitled to benefit of age relaxation admissible to departmental candidates or to the extent of contractual service rendered by them is not adjudicated by Honble Delhi High Court vide judgment dated 28.8.2008. Since the copy of writ petition filed by the applicants before Honble High Court decided in terms of said judgment delivered in a batch of petitions is not before us, we are not aware whether in the said petitions applicants had sought the benefit of age relaxation available to departmental candidates or to the extent of contractual service rendered by them. It is settled law that if a plea is raised in a proceeding before a court of law, in case of not being allowed, the same is deemed rejected. Although in the original application it is stated that all the candidates, who had completed ETE course in the year 2006, 2007 or 2008, were allowed to appear in the examination held pursuant to advertisement dated 6-12.10.2007, there is no categorical assertion contained therein that the applicants had completed ETE course during the said years.
10. In OA-751/2010 the issue before this Tribunal was whether the applicants in the said OA being over aged and not within the age limit prescribed in the amended rules notified on 8.5.2006 and 13.7.2007 could be given benefit of age relaxation in terms of the exception carved out by Honble Delhi High Court in W.P. (C) No.7297/2007 (Sachin Gupta & others). Taking the view that by a Division Bench judgment delivered by Honble High Court in WP (C) No.4677/2010 that the scope of exception carved out in Sachin Guptas case was eclipsed, this Tribunal rejected the claim of applicants in OA-751/2010, who were claiming parity with petitioners in the case of Sachin Gupta (supra). In the order dated 4.8.2011 passed by this Tribunal, it was also held that the benefit of the judgment dated 11.8.2008 of Honble High Court was available only to those, who belonged to 2006 to 2008 ETE diploma batches. Para 12.1 and part of para 13 read as under:-
12.1 As per the directions of the Honble High Court while remanding these two OAs to the Tribunal, it has been specifically directed that in course of considering the pleas urged by the parties the decision of the Division Bench in WP (C) No.4677/2010 is to be kept in mind. As stated above, by this judgment the Tribunals decision in Parul Dhingra extending the scope of the exception carved out in Sachin Guptas case to the pre-2006 ETE candidates had been over-ruled. Para-11 of this Judgment, as extracted in toto in the instant remand order, explains the rationale behind the concession in Sachin Guptas case being confined only to the candidates passing their ETE courses during the years 2006 - 2008. This is on the ground of there having been a legitimate expectation of eligibility for appointment as a Teacher (Primary) under the respondents and the suddenness of the impediment caused by the reduction in the maximum age limit. Para 12 had dealt with the reasons why the same argument would not prevail in case of the candidates passing their ETE courses in the earlier years; and this was on the settled principle of law that nobody has a vested right to be appointed to a post under the Government and it is within the domain of the executive to prescribe and amend the eligibility conditions including the age limit. xx xx xx 13..We have found that in its judgment in Sachin Guptas case the emphasis of the Honble High Court was on upholding the validity of the amended RRs for appointment to the post of Primary Teachers, which inter alia included reduction in the maximum age limit. Further, as reiterated by the subsequent decision in the WP (C) 4677/2010, the exception carved out by the Honble High Court in Sachin Guptas case was a limited one confined only to the ETE Diploma batches 2006 to 2008 and was neither stretchable nor extendable in scope. It seems this has been the consistent view taken by the Honble High Court, as revealed from their decision in the Misc. Petition No.11093/2009 in W.P. (C) No.7297/2007, brought to our notice by the respondents.
11. As can be seen from the decision of this Tribunal in Jyoti Dua (supra), the issue of benefit of age relaxation to such candidates, who have been working as Assistant Teacher (Primary) in MCD on contract basis, was not examined. Also in the case of Rekha Rani (OA-783/2011) (supra), the applicants, who passed ETE / JBT examination in the year 2005, had claimed parity with those, who cleared such examination during the years 2006, 2007 and 2008. In the said case also, the issue of age relaxation to contractual Assistant Teacher (Primary) MCD was not decided by this Tribunal. In Preeti Rathi & others (supra), a Division Bench of Honble High Court having taken note of the judgments in the case of Sachin Gupta (supra) and Parul Dhingra v. Govt. of NCT of Delhi (OA 2983/2009) decided on 18.3.2010 held that those who were appointed on contract basis need to be treated as employees of MCD and are entitled to age relaxation. In the said case, Honble High Court was also of the view that when at the time of initial appointment on contract / casual basis an employee is not over-aged, he is entitled to age relaxation to the extent of service rendered by him in such capacity. Paras 13 & 14 read 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 Ayurveda 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. Even in those matters where 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.
12. As far as the plea of limitation is concerned, we are of the view that once the applicants participated in an examination, they are entitled to know their fate in the same. So long as they are not allowed to know the outcome of their performance in such exam or the fate of their candidature in the same, they have a recurring cause of action to approach the court of law regarding their entitlement to know the fate of their candidature / result of examination. Moreover, in the present case the applicants are seeking benefit of the judgment of Honble High Court in Preeti Rathis case (supra). Such persons, who approach the Court or Tribunal to seek the benefit of a judgment passed in favour similarly situated employees, should not be denied the relief on the ground of limitation alone, unless the delay is fatal and inordinate and the grant of relief to the person approaching the Court belatedly may result in unsettling the position already settled. In the circumstances of this case, we are not inclined to dismiss the OA on the ground of limitation.
13. In view of the aforementioned, we deem it appropriate to dispose of the OA with a direction to the respondents to verify whether the applicants had raised the plea of benefit of age relaxation to contractual employees at par with departmental employees or to the extent of contractual service rendered by them or not in their petition decided along W.P. (C) No.7297/2007 on 11.8.2008. In case it is found that the applicants had raised such plea in their petition before the Honble High Court, the applicants would not be entitled to any relief from the respondents and it would be for them to work out their right in such other proceedings, which can be resorted to by them in accordance with law. In case it is revealed that the benefit of contractual service rendered by them in MCD was not sought by them in their petition before the Honble High Court for the purpose of age relaxation and the challenge in the petition was confined to recruitment rules only, the respondents would consider giving the applicants the benefit of the judgment of Honble High Court in Preeti Rathis case (supra). In such situation, in case of applicants from 2006 or 2007 or 2008 batch of ETE, they would be given the benefit of the said judgment of the Honble High Court with reference to the recruitment rules in vogue prior to 13.7.2007, otherwise such benefit would be given to them with reference to the age limit prescribed in recruitment rules dated 13.7.2007.
14. OA disposed of in terms of the above directions. No costs.
( A.K. Bhardwaj ) ( Shailendra Pandey ) Member (J) Member (A) /sunil/