Central Administrative Tribunal - Delhi
Veena Kumari vs Delhi Subordinate Services on 30 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA 23/2011 NEW DELHI THIS THE 30th DAY OF JANUARY, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) 1. Veena Kumari d/o Sh. Permeshwar Prasad Singh, 35/3, Uri Enclave, Near Brar Square, Delhi Cantt, New Delhi-10. 2. Mamta w/o Mr. Ranjan Khera c/o Delhi Seeds and Pesticides 121, Village Bharolla New Sabzi Mandi, Azadpur, New Delhi. 3. Geeta Rani D/o Sh. Umed Singh R/o D-6/8, Sector-15, Rohini, New Delhi-110089. 4. Alka Jain D/o Shri Ishwar Chand Jain R/o C-102/2 Sadh Nagar Palam Colony, New Delhi. 5. Preeti Gupta w/o Shri Vijay Gupta 4/2979-B, Street No. 3 Shalimar Park Extension Shahdra, Delhi. 6. Naresh Kumar s/o Shri Dharam Chand r/o Khanpur Kalan Tehsil Gohana, Distt. Sonepat, Haryana-131305. 7. Mamta Mittal d/o Shri B.S. Mittal B-36, Majlis Park, Main Road, Delhi-33. 8. Shilpa s/o Shri Vinod Kumar Bansal, 353-C, Teliwada, Shahdara, Delhi-32. 9. Ravinder Kumar s/o Sh. Ram Kishan A-32, Shera Mohalla Vill. Garhi Lajpat Nagar, New Delhi. 10. Rajeev Kumar s/o Shri Fateh Singh, RZ-5A/1, Shankar Park West Sagar Pur, New Delhi. 11. Geeta Rajora D/o Sh. S.D. Singh R/o A-732, Phase-IV Jwalapuri, Sundar Vihar, New Delhi-87. 12. Renu D/o Shri Mukh Ram Singhal R/o B-203, Siv Vihar Rohtak Road, New Delhi-110087. 13. Renu Kumari D/o Shri Kishan Chand R/o 3584, Street No. 5, Narang Colony, Tri Nagar, New Delhi-110035. 14. Mukesh Bala D/o Shri Jai Kishan R/o RZ-B-256, Gopal Nagar, Najafgarh, New Delhi-110043. 15. Munesh Bala D/o Shri Jai Kishan R/o RZ-B-256, Gopal Nagar, Najafgarh, New Delhi-110043. 16. Neetu D/o Shri Om Prakash 22, New Market, Timarpur, New Delhi-110054. 17. Veena D/o Shri P.C. Mohan Puria R/o H-19/66, Sector 7, Rohini, New Delhi-110085. 18. Geeta Arya, S/o Mr. Teeka Ram, R/o A-7E DDA Flats Munirka, New Delhi. Applicants. (By Advocate Shri Ravi Prakash) VERSUS 1. Delhi Subordinate Services Selection Board, 3rd Floor, UTCL Building, Viswas Nagar, Shahadara, Delhi. 2. The Municipal Corporation of Delhi through Commissioner, Town Hall, Delhi. Respondents. (By Advocate Mrs. Renu George) ORDER
Mr. G. George Paracken:
This case was originally filed by the applicants as Writ Petition (Civil) No. 10366/2009 before the Honble High Court of Delhi seeking a direction to the respondents to consider their candidature afresh by granting age relaxation in the interest of justice, equity and good conscience. When the jurisdiction of the MCD in service matters has been transferred to this Tribunal, the Honble High Court has transferred this case to this Tribunal and the same has been registered here as TA 23/2011.
2. The applicants in this case have been appointed as Primary Teachers on contract basis by Respondent No.2, namely, the Municipal Corporation of Delhi (`MCD for short) during the years 2001 to 2005. Still they are working in the same capacity. On 08.05.2006, the Directorate of Education, Govt. of NCT of Delhi issued a Notification amending the Recruitment Rules for appointment to the posts of Assistant Teacher (Primary) in the schools run by the Govt. of NCT, Delhi. Similar amendment was carried out by the Department of Urban Development, on 13.07.2007. Both the amendments prescribed the minimum and the maximum age as 20 and 27 years, respectively. Both the amendments also required that the candidate should have passed Hindi as a subject at the secondary level and passed with minimum 50% marks in the senior secondary level. Prior to the aforesaid amendment, the maximum age limit for participating in the Assistant Teachers (Primary) Examination for male candidates was 32 years and for female candidates 42 years and study of Hindi as a subject at the secondary level was not mandatory.
3. Some of the affected persons including the present applicants challenged the aforesaid amendments but the same was dismissed vide order dated 11.08.2008 in WP (C) 7297 of 2007 and connected case. In other words, the language and marks criteria and the age criteria have been upheld. But, with a view to ameliorate the hardship of already enrolled students in ETE courses, the High Court vide Para 59 of the said judgment directed the respondents to permit all of those who have completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the respondents to 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 fulfil all other eligibility conditions. The aforesaid relaxation was independent of the relaxation applicable to reserved categories. However, the relaxation granted by the Court ceased to operate for the ETE courses after 2008 i.e. commencing from 2009 as from 30.09.2007, the maximum age limit for ETE course has been reduced from 30 years to 24 years. The said para is reproduced as under:
59. However, considering that the maximum age prescribed for the post of Assistant Teachers (Primary) for the MCD and NCT has been reduced from 32 years for males and 42 years for females to 27 years, we are of the view that this would cause hardship to candidates already enrolled in the ETE course, who might suddenly find themselves over-age and ineligible. With a view to ameliorate this hardship and as a one-time measure, following the ratio in the case of Anuj Johri Vs. Union of India and Ors. reported in 2005 III AD (DELHI) 614., 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.
4. That on 30.01.2009, the applicants herein filed Petitions for review/clarifications before the Honble High Court with regard to the exceptions made in Para 59 of the aforesaid judgment and order dated 11.08.2008. On 01.05.2009, the Honble High Court passed an order which is as under:
Shri Vikas Singh, the learned Senior Counsel appearing on behalf of the applicants after arguing for some time stated that since the applicants have been working as Contract Teachers with the MCD schools since 2001 onwards they were entitled to age relaxation, thus, he would seek appropriate relief before the Writ Court in respect of those who have cleared the examination. Having perused the applications, we are of the view that these applications do not pertain to the judgment of which clarification has been sought, accordingly, the applications are dismissed as withdrawn, we grant the applicants the liberty to seek such relief as they are entitled in law before the writ court.
5. On the basis of the aforesaid order dated 01.05.2009, the applicants have filed this writ petition before the Honble High Court seeking a direction to the respondents to consider their candidature afresh by granting age relaxation in the interest of justice, equity and good conscience. In support of the aforesaid submission, the applicants have submitted that they have been employed with the respondents on contract basis since 2001-2005 and their contract service still subsists.
6. The learned counsel for the applicants has also relied upon an order of this Tribunal dated 20.08.2010 in OA 714/2009 Mrs. Preeti Rathi & Ors. Vs. Municipal Corporation & Ors. The applicants therein have passed ETE diploma course when the age limit was 27-30 years. The aforesaid OA was allowed by this Tribunal and the relevant part of the same is as under:
8. In our considered view, Article 14 of the Constitution of India does not discriminate between the two persons forming the same class. Once in case of contract Teachers relaxation is given by the Lieutenant Governor, the said relaxation though may not be claimed as a matter of right but when denied without any basis to the applicants, cannot be countenanced. Relaxation though cannot be deemed but once it has been given to similarly circumstanced, the Lieutenant Governor cannot restrict the relaxation by observing that it would not be treated as a precedent in future, as Article 142 of the Constitution of India is not enjoyed by the Lieutenant Governor on an administrative or even quasi-judicial side.
9. In this view of the matter, apart from the dicta in Parul Dhingras case (supra) covering the present OA on all fours, non-grant of relaxation to the applicants by the Lieutenant Governor is a discrimination meted out to the applicants in violation of Article 14 of the Constitution of India.
7. The Delhi Subordinate Services Selection Board (`DSSSB for short) has challenged the aforesaid order before the Honble High Court of Delhi in WP (C) No. 1641/2011 and vide judgment dated 15.11.2011, it was dismissed and its relevant part is as under:
12. In the first instance, we may point out that as per the amended Recruitment Rules as also the advertisement issued by the petitioner, the age limit of 27 years is relaxable up to 45 years of age in respect of departmental candidates. The provision in this behalf stipulates as under:-
Age Limit: 20-27 years (Relaxable in case of SC/ST/OBC/PH/Ex-Serviceman as per Government of India instructions issued from time to time). Relaxation in upper age limit available to:- SC/ST-05 years, OBC-03 years, PH & SC/ST-15 years and PH & OBC 13 years, Departmental Candidates upto 45 years of age are eligible.
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. 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.
15. There is yet another reason not to interfere with the impugned order. In the present case the respondents herein had filed an OA for declaration that they were entitled to be considered for the post of Primary Teachers. These teachers are to be appointed in MCD. MCD is the prospective employer which had sent its requisition to the petitioner herein namely Delhi Subordinate Services Selection Board (DSSSB). After the judgment rendered by the Tribunal, MCD has not challenged, rather accepted the same. If MCD has no objection for consideration of the case of these respondents on merits for appointment on regular basis, we see no reason why the petitioner which is but a recruitment agency, should have any such objection.
16. In view thereof, we dismiss this writ petition as devoid of any merits; at the same time we clarify that the only effect of the order of the learned Tribunal or this judgment would be that the respondents would be entitled to be considered for the post of Primary Teachers on regular basis, whether they are able to get selected or not on their merits is altogether different question which has not been gone into by us.
8. The respondent No.2, namely, the MCD in their reply has submitted that the Recruitment Rules for the post of Teacher (Primary) were amended vide Notifications dated 08.05.2006 and 13.07.2007 and the posts were advertised thereafter vide advertisement dated 6-12 October, 2007. Applicants herein are admittedly over-aged but working on contract basis in their schools. They are seeking age relaxation on the ground that they have been working on contract basis with them. They have also submitted that challenge to the Recruitment Rules was already decided by the High Court vide common judgment dated 11.08.2008 in W.P (C) No. 7297/2007 wherein the applicants herein were parties. During the pendency of the said petition, the High Court passed an interim order dated 24.10.2007 allowing them to apply for the examination provisionally. While finally dismissing the WP (C) No. 7297/2007 (supra) on 11.08.2008 gave an exception to all those candidates who completed the course in the year 2006 or 2007 or 2008 to appear in the examination conducted by the respondents for the post of Assistance teachers (Primary) once each of the Respondents i.e. MCD and the Govt. of NCT of Delhi provided they do not exceed the upper age limit of 32 years and 42 years for females and also fulfil other eligibility conditions. However, none of 18 applicants in the present TA were enrolled in the ETE course during the prescribed period i.e. 2006, 2007 or 2008 as pr the table set out by the applicants themselves in this TA which is as under:
S.NO. NAME ETE/JBT
PASSING YEAR CONTRACT SERVICE PERIOD
1 VEENA KUMARI 1990 JBT 8.10.2001 To Till
Date
2 SHILPA 2002 1.01.2003 To Till
Date
3 MAMTA MITTAL 2001 11.09.2003 To Till
Date
4 ALKA JAIN 2001 B.EL.ED 1.09.2003 To Till
Date
5 MAMTA 1999 3.12.2003 To Till
Date
6 PREETI GUPTA 2001 B.EL.ED 1.09.2003 To Till
Date
7 RENU 1999 1.09.2003 To Till
Date
8 RENU KUMARI 2000 8.10.2001 To Till
Date
9 RAJIV ,KUMAR 2002 19.08.2004 To Till Date
10 RAVINDRA KUMAR 2001 8.10.2001 To Till
Date
11 GEETA RANI 1994 JBT 8.10.2001 To Till
Date
12 MUNESH BALA 2000 B.EL.ED 6.10.2003 To Till
Date
13 MUKESH BALA 2001 B.EL.ED 6.10.2003 To Till
Date
14 GEETA RAJORA 2002 1.09.2003 To Till
Date
15 NARESH KUMAR 2000 26.11.2001 To Till
Date
16 NEETU 1999 8.10.2001 To Till
Date
17 VEENA 2003 12.09.2005 To Till
Date
18 GEETA ARYA 2003 13.10.2001 To Till
Date
9. We have heard the learned counsel for the parties. Admittedly, the applicants are contact employees. As rightly submitted by the Respondent MCD, none of the applicants herein having been not enrolled in the ETE course during the prescribed period i.e. 2006, 2007 or2008 they do not fall within the exception carved out by the Honble High Court of Delhi in Para 59 of its judgment dated 11.08.2008 in WP (C) No. 7297/2007 (supra). However, the general principle whether the contract employees can be treated at par with the Departmental employees for the purpose of age relaxation for appointment/recruitment has been considered by the Apex Court in Union Public Service Commission Vs. Dr. Jamuna Kurup and Ors. (2008 (11) SCC 10) wherein it has been held as under:
6. Respondents filed WP(C) Nos.4787-4823/2004 in Delhi High Court seeking a direction to the Corporation to regularize their services in the vacant posts of Medical Officer (Ayurved) with effect from the respective dates of their initial appointment. Alternatively, they prayed that if the High Court was of the view that they could be regulated only pursuant to UPSC selection process, then to grant them due weightage for the service rendered by them on contract basis, and also extend the age relaxation by five years to those who were aged more than 35 years and had worked on contract basis for three years. They also sought a direction to the Corporation to extend the benefit of regular pay scale with consequential benefits and perks attached to the regular post of Ayurvedic Vaids, from the date of their initial appointment. However, when the writ petitions came up for hearing, the respondents (Writ petitioners) submitted that they would be satisfied if two directions were issued, the first being that those who had become overaged should be given the benefit of age relaxation and second, they should not be replaced by persons other than regular appointees.
7. The learned Single Judge was of the view that the writ petitioners were entitled to the said two limited reliefs. Therefore, he disposed of the writ petitions by order dated 26.4.2004 directing that those writ petitioners who had crossed 35 years would be entitled to the benefit of age relaxation corresponding to the number of years they had worked as contractual Medical Officers (Ayurved) under the Corporation and should be treated as eligible with reference to age requirement. He also directed that the services of the writ petitioners should not be replaced by anyone save and except those appointed on regular basis after undergoing the selection process.
8. The UPSC chose to approach this Court by filing SLPs against the order of the learned Single Judge, bypassing the remedy of appeal to the Division Bench, in view of the pendency of a similar issue before this Court in SLP (C) No. 15714/2003 (UPSC vs. Girish Jayantilal Vaghela). The special leave petitions from which these appeals arise, were originally tagged to Vaghela's case on 19.1.2005, but by a subsequent order dated 1.12.2005, they were delinked and ordered to be heard separately.
9. The UPSC contended that the term 'age is relaxable for employees of Municipal Corporation of Delhi' in the advertisement dated 13.3.2004, is intended to refer only to regular and permanent employees of MCD. It was also contended that being short term contract employees, the respondents cannot claim to be 'employees of MCD'. For this purpose reliance was placed on the decision of this Court in UPSC vs. Girija Jayantilal Vaghela _ 2006 (2) SCC 482, wherein this Court held that persons working on short term contract basis cannot claim the status of Government Servants. UPSC submitted that on a similar interpretation, 'employees of MCD' will not include contract employees.
10. The learned counsel appearing for the respondents submitted that the decision in Vaghela did not apply to the respondents as they did not claim to be government servants. He submitted that the respondents claimed age relaxation as employees of MCD which was specifically provided in the advertisement. We have already noticed that the UPSC advertisement (No. SPL-03-2004) clearly specified that the age limit of 35 years was relaxable for employees of Municipal Corporation of Delhi, up to five years. Therefore, the only question that arises for consideration is whether the word 'employees of MCD' should be construed as referring only to permanent or regular employees of MCD as contended by UPSC or to all employees of MCD including contract employees, as contended by respondents.
11. Even the UPSC recruitment advertisement for the subsequent year (Advertisement No.SPL-54-2005 dated 23.7.2005 issued during the pendency of these matters) inviting applications for filling 16 posts of Medical Officers (Ayurved) in the Municipal Corporation of Delhi (and similar posts in NDMC and Union Territories) provided for age relaxation as follows :
"AGE : Not exceeding 35 years on normal closing date. Not exceeding 38 years for Other Backward Classes candidates and not exceeding 40 years for Scheduled Castes and Scheduled Tribes candidates in respect of vacancies reserved for them. Relaxable for central government servants as per the instructions issued by Government of India including NDMC/MCD from time to time up to five years. Age is also relaxable for employees of NDMC and MCD in respect of the posts in NDMC and MCD respectively up to five years."
12. By interim order dated 9.12.2005, this Court permitted the overaged respondents to sit for the examination in relation to the 2005 advertisement subject to the condition that the UPSC shall not publish the result until further orders. By subsequent order dated 9.3.2007, the said interim order was vacated and UPSC was permitted to publish the results and MCD was permitted to proceed with the appointment of candidates selected by UPSC. We are informed that UPSC has neither declared the results nor MCD proceeded to make appointments. Be that as it may.
13. Recruitment to posts in MCD is governed by the Delhi Municipal Corporation Act, 1957 ('Act' for short). Section 90 of the Act contemplates appointment of persons to either permanent posts or temporary posts. Section 90(6) provides that the Standing Committee may on the recommendations of the Commissioner create for a period not exceeding six months any category A or category B post. Section 92 provides that the power to appoint employees whether permanent or temporary shall vest in the Commissioner. Section 96 provides that no appointment to any category A post shall be made except after consultation with the UPSC, but no such consultation is necessary for selection for appointment to any acting or temporary post for a period not exceeding one year. We have referred to these provisions only to show that employment under the Municipal Corporation of Delhi could be either permanent/regular or short term/contractual.
14. The term 'employee' is not defined in the Delhi Municipal Corporation Act, 1957. Nor is it defined in the advertisement of UPSC. The ordinary meaning of 'employee' is any person employed on salary or wage by an employer. When there is a contract of employment, the person employed is the employee and the person employing is the employer. In the absence of any restrictive definition, the word 'employee' would include both permanent or temporary, regular or short term, contractual or ad hoc. Therefore, all persons employed by MCD whether permanent or contractual will be 'employees of MCD'.
15. The respondents who were appointed on contract basis initially for a period of six months, extended thereafter from time to time for further periods of six months each, were therefore, employees of MCD, and consequently, entitled to the benefit of age relaxation. If the intention of MCD and UPSC was to extent the age relaxation only to permanent employees, the advertisement would have stated that age relaxation would be extended only to permanent or regular employees of MCD or that the age relaxation would be extended to employees of MCD other than contract or temporary employees. The fact that the term 'employees of MCD' is no way restricted, makes it clear that the intention was to include all employees including contractual employees. Therefore, we find no reason to interfere with the judgment of the High Court extending the benefit of age relaxation.
16. The learned counsel for appellant submitted that the advertisement granted age relaxation to employees of MCD and employees of government of India, and that the words 'permanent' or 'regular' were not used either with reference to 'employees of government' or 'employees of MCD'. It is pointed out that in Vaghela (supra), this Court while dealing with persons employed in identical circumstances, that is 'engaged for a period of six months from the date of joining or till a candidate selected by UPSC joined on regular basis', held that the term 'government servant' did not refer to or include persons employed on contract basis. It is argued that on the same principle, the term 'employees of MCD' cannot include a contract employee of MCD. We cannot agree. Vaghela (Supra) related to contract employment by a government whereas in this case the contract employment is by a Municipal Corporation. The reason that weighed with this Court in Vaghela to hold that a contract employee was not a government servant, was in view of the special connotation of the term 'government servant'. This Court after referring to the decision of the Constitution Bench in Roshanlal Tandan vs. Union of India _ 1968 (1) SCR 185, and the decision in Dinesh Chandra Sanpma vs. State of Assam _ 1977 (4) SCC 441, held that employment under the government is a matter of status and not a contract even though acquisition of such a status may be preceded by a contract; and that contract employees of the government were governed by the terms of contract and did not possess the status of government servants nor were governed by rules framed under Article 309 of the Constitution, nor enjoyed the protection under Article 311. But a Municipal Corporation is not 'government', and municipal employees are not government servants governed by Article 309 to 311. Though permanent employees of municipal corporation or other statutory bodies may be governed by statutory rules, they do not enjoy the status of government servants. Therefore, the decision in Vaghela, rendered with reference to government servants may not be of any assistance in interpreting the term 'employees of MCD'. In fact, for that very reason, these matters were de-linked from the hearing of Vaghela.
17. In view of the above, we dismiss these appeals. We also direct UPSC to declare the withheld results of respondents who had participated in the examination in pursuance of the interim orders of this Court and grant the benefit of age relaxation as per the direction of High Court.
10. The aforesaid judgment of the Apex Court has been followed by the High Court of Delhi in its judgment dated 15.11.2011 in WP (C) No.1641/2011 Delhi Subordinate Services Selection Board and Anr. Vs. Mrs. Preeti Rathi & Ors. arisen out of the order of the Tribunal in OA 714/2009 (supra) decided on 20.08.2010. The relevant part of the said judgment reads 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. 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.
11. In view of the above position, in our considered view, the applicants herein are not entitled for age relaxation in terms of the judgment of the Honble High Court in WP (C) No. 7297/2007 (supra). But, being contractual employees under the MCD, they are entitled to be treated as departmental candidates and they have to be given age relaxation to that extent as admissible to regular employees of MCD and the respondents shall consider their candidature afresh.
12. We, therefore, direct the respondents to examine the cases of each of the applicants and if they come within the purview of the aforesaid judgment of the Apex Court in Dr. Jamuna Kurup (supra), they shall be given age relaxation and those who fulfil that condition and otherwise found suitable shall be given appointment as Teacher (Primary) with all consequential benefits except back wage at the earliest and in any case within a period of two months from the date of receipt of a copy of this order. No order as to costs.
(Dr. A.K. Mishra) ( G. George Paracken )
Member (A) Member (J
SRD