Central Administrative Tribunal - Delhi
Poonam Chaudhary vs Govt. Of Nctd on 2 February, 2024
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Item No.100/ C-3 OA No. 2120/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.2120/2020
Reserved on :16.01.2024
Pronounced on : 02.02.2024
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Poonam Chaudhary,
D/o Kabool Singh,
R/o 209(B), Street No.4,
28, Foota Road, Prem Nagar,
Najafgarh, New Delhi-110043.
...Applicant
(By Advocate : Ms. Amita Singh Kalkal)
Versus
1. Govt. of NCT,
through its Chief Secretary,
Players Building, I.P. Extension, Delhi.
2. Department of Education
Through Secretary,
Old Secretariat,Delhi.
3. Delhi Subordinate Service Selection Board,
Through its Secretary,
UTCS Building, Vishawas Nagar,
Shadara, Delhi-110032.
(By Advocate : Ms. Purnima Maheshwari for DSSSB
Mr. Anuj Kumar Sharma for DOE )
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Item No.100/ C-3 OA No. 2120/2020
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J):-
The applicant being an aspirant to the post of Physical Education Teacher (Female) applied against the post code-95/17, advertised by Delhi Subordinate Services Selection Board (DSSSB). The applicant is stated to have obtained 110.50 marks in her category (OBC) as against the cutoff of 106.25 marks in the said category. However, her candidature has been rejected by the respondents for the reason "overage". Ventilating her grievance, the applicant has preferred this OA, seeking the following reliefs:
"i). allow the present Original application;
ii). quash the rejection notice dated 30.9.2020
iii). direct the respondent No.2 to consider the applicant for age relaxation and appoint the applicant, who were recommended by the Respondent No.3 to the post Code No. 95/2017 advertised vide advertisement No. 4/2017;
iv). pass such other order or orders as are deemed fit and proper in the facts and circumstances of the case."
2. Learned counsel for the applicant has argued that admittedly, the applicant's date of birth being 23rd June, 3 Item No.100/ C-3 OA No. 2120/2020 1980, in terms of the cut off prescribed in the advertisement dated 20th December, 2017, she is in fact overage by 7 years 7 months and 8 days. She draws attention to the advertisement notice, wherein against the column "Age Limit" the following is prescribed:
"Guest/Contract teachers: Relaxation in upper age as a one time measure upto the actual time spent as guest/contract teacher in Dte. Of Education, subject to a maximum of 5 years provided they have worked for atleast 120 working days in that particular year (this would be applicable to those guest/contract teachers who have worked for the academic years 2012-13, 2013-14, 2014-15, 2015-16 & 2016-17)."
3. She further argued that since the applicant belongs to OBC category, she is entitled to an age relaxation of 3 years, in terms of the provision contained in the advertisement itself at page 39, Sr. no. 6, and as she has been employed with the SCERT on contract basis for more than 09 years, she is further entitled for relaxation of the same number of years subject to a maximum of 05 years, thereby making her eligible for the said post. She states that after getting the age relaxation of 08 years, the applicant would be fully eligible for the said post.
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Item No.100/ C-3 OA No. 2120/2020
4. She further contended that SCERT is a part of GNCTD and the respondents have, in fact, gone beyond the notification dated 11th June, 2019 (annexed at page 09 of the rejoinder), while cancelling the candidature of the applicant. According to her, the respondents are obliged to give the relaxation to the applicant as she had worked with SCERT, which is a part of Delhi Government. She claimed that the respondents have incorrectly, in the advertisement notice as well in the impugned order, mentioned the words "Directorate of Education". She clarified that Directorate of Education as well as SCERT are a part of NCT of Delhi itself. She draws attention to the RTI reply annexed with the additional documents, wherein it clearly finds mention that the Directorate of Education, Govt. of NCT of Delhi is the Administrative Department of SCERT. She adds that since the applicant imparts training to the Physical Education Teachers of GNCTD, yet she has been rendered disqualified for the reason "overage" incorrectly. Drawing attention to the rules and regulations that clearly establish that the functions of the SCERT, as expressed in detail in the Memorandum of Association, 5 Item No.100/ C-3 OA No. 2120/2020 explain that the applicant is performing exactly what is desired to be done by the applicant in case she is offered appointment. She reiterates that once the applicant has worked with SCERT, which is part of the GNCTD, Delhi and Directorate of Education also being part of the GNCTD, Delhi, the applicant could not be rendered ineligible for not being part of Directorate of Education. She drew strength from the judgment passed by the Hon'ble Delhi High Court of Delhi in WP(C) No.2121/2023 - Sonu Lal Gupta And Anr. Vs. Union Public Service Commission And Ors. annexed with the list of additional documents filed on 10th January, 2024, wherein according to her, similar issue fell for consideration before the Hon'ble Delhi High Court of Delhi, which reads as sunder :-
"11. The issue for consideration is whether the teaching experience of petitioners on deputation with SCERT can be equated as teaching experience as Vice Principal/Post Graduate Teacher/Trained Graduate Teacher in a recognized High School, Higher Secondary School/Senior Secondary School/Intermediate College or they fall short of teaching experience by 14/37 days on account of proceeding on deputation to SCERT."6
Item No.100/ C-3 OA No. 2120/2020
5. She further submitted that the applicants in W.P (C) 2121/2023 & CM APPL. 8022/2023 decided on 10th May, 2023, were in fact working with GNCTD, Delhi and came on deputation with SCERT and were short of experience in certain number of days. The experience rendered by the applicants therein with SCERT was considered and directed to be counted by the Hon'ble Delhi High Court. She states that on the same analogy, the said benefit could be extended to the applicant in the instant OA as well.
6. The respondents have filed respective counter affidavits opposing the OA. Learned counsel for DSSSB stated that the advertisement notice clearly stipulated in para 6 that age relaxation could be extended to the applicant for three years as she belongs to OBC category and the same was extended to her and that further age relaxation could not be extended to her as she was not a contractual employee with the Directorate of Education.
This relaxation could be extended only to the departmental candidates with at least three years of continuous service in Government of NCT, Delhi and its 7 Item No.100/ C-3 OA No. 2120/2020 local and autonomous bodies but the applicant was not a departmental candidate with three years of continuous service with the GNCTD, Delhi. SCERT is neither a local/ autonomous body within the GNCTD, Delhi nor the Directorate of Education. SCERT has its own charter of functioning and RRs for the said post. With respect to the judgment relied upon by the learned counsel for the applicant, she stated that the said judgment may not come to the rescue of the applicant as the applicants therein were in fact employed with the Directorate of Education and went on deputation with the SCERT. The certificate relied upon while deciding the writ petition was issued by the Directorate of Education as the applicants therein were on deputation with the SCERT and were maintaining their lien with the parent department. She drew strength from the judgment of the Hon'ble Apex Court annexed with the written synopsis filed on 19th December, 2023 in Civil Appeal No.4461/2021 titled Delhi Subordinate Services Selection Board & Anr. Vs. Seema Kapoor, which clearly establishes that the SCERT was not part of the Delhi Government and accordingly, the applicant is not 8 Item No.100/ C-3 OA No. 2120/2020 entitled to be regularized. Paras 6 & 7 of the judgment read thus :
"6. It is also argued that in terms of judgment of this court in Jai Prakash Wadhwa & Ors. v. Lt. Governor, Delhi Admn. & Anr., Assistant Teachers in the Municipal Corporations are not government servants holding a post in a substantive, temporary or officiating capacity. In the aforesaid case, the appellants were employed as Assistant Teachers in the schools run by the Municipal Corporation. Such schools were taken over by Delhi Administration in 1970. The appellants sought fixation of pay in terms of provisions of Fundamental Rule 22-C. Such claim was negated by this Court on the ground that teachers in the Municipal Corporation are not the government servants. This Court held as under:
"5. Fundamental Rule 22-C, in its own terms is restricted in its application to a government servant holding a post in a substantive, temporary or officiating capacity, who is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him. The appellants were employees of the Municipal Corporation and were not government servants and since they were not government servants they could not invoke the protection of Fundamental Rule 22-C."
7. On the other hand, Mr. Jha argued that the respondent is a departmental candidate working with the Corporation which is evident from the "Recruitment Rules for the post of Trained Graduate Teacher (MIL) under the Directorate of Education, Delhi Administration, Delhi"3 notified on 30.12.1992 wherein Assistant Teachers are eligible for promotion. It is thus contended that as a teacher working in the Corporation, she has a right to be promoted under the State Government. Therefore, the respondent falls in the feeder cadre 9 Item No.100/ C-3 OA No. 2120/2020 leading to inference that she is a departmental candidate."
7. Learned counsel for respondent - Department of Education while reiteratinag the submissions made in the counter affidavit submitted that relaxation with respect to age is clearly stipulated in the advertisement itself, as per which, the applicant is not entitled for the said relaxation. As per the applicant's own averment, she has been working on contractual basis (PSTE) under SCERT. Since the SCERT is an automous body, she is not eliglible for relaxaion, as she was not working as guest/contract teacher under DOE. The judgments relied upon by the applicant are not applicable to the present facts of the case.
8. Learned counsel for the applicant in rejoinder has stated that the judgment relied upon by the respondents' counsel was in fact on a different issue. The issue before the Hon'ble Apex Court was with respect to the retiral benefits and not age relaxation and therefore, this judgment may not be applicable to the present facts. 10
Item No.100/ C-3 OA No. 2120/2020
9. We have heard learned counsel for the parties and gone through the material available on record.
10. The applicant belongs to OBC category. Admittedly on the cutoff date, she was over aged by 7 years, 07 months and 08 days. By virtue of being an OBC candidate, she was entitled to age relaxation of 3 years but even after granting the same, she was still over aged by 4 years 7 months and 8 days. Therefore, she has claimed remaining age relaxation for the number of years (subject a maximum of 5 years) she has been on contractual employment with SCERT. The respondents have rejected the candidature of the applicant on the ground that her working on contractual basis was with SCERT and not with the Directorate of Education. To clarify, the advertisement notice itself finds mention under the Post Code 95/17 page 30 of the paper book that the guest/contract teacher relaxation in upper age was extended as a one- time measure up to the actual time spent as a guest/contractual teacher in the Directorate of Education, subject to a maximum of five years. The issue before us is whether the employment of 11 Item No.100/ C-3 OA No. 2120/2020 the applicant on contractual basis with SCERT would be rendered as her employment with the Directorate of Education or not. Learned counsel for the applicant has taken us through the record in support of her claim. She has primarily argued that SCERT is a creation of the State, though an autonomous body under the Societies Registration Act in May 1988. It receives its funds from GNCT of Delhi under the Grants-in-Aid Scheme. The Directorate of Education is in fact the administrative department of SCERT and, therefore, is part of the GNCTD for obvious reasons as explained by her.
11. We are of the considered opinion that though it is not in dispute that SCERT receives funds from GNCTD and is under the administrative control of Delhi Government, yet being an independent autonomous body under the Societies Act, is not a part of the Delhi Government and, therefore, as a corollary not a part of the Directorate of Education. The table in para 6 of the advertisement is unambiguously clear that in order to avail five years' age relaxation, candidates should be working on a contractual basis under the Directorate of 12 Item No.100/ C-3 OA No. 2120/2020 Education. This precise issue came up for consideration before the Hon'ble Apex Court in Civil Appeal No.3272/2003 titled Lt. Governor of Delhi & Ors. Vs. V.K. Sodhi & Ors. Relevant paras 15,16 & 17 of the said judgment read as under :-
"15. Once we hold that SCERT is not a State or other authority within the meaning of Article
12 of the Constitution of India, we do not find ourselves persuaded to issue any such direction as sought for by the writ petitioners (the respondents herein). In fact, it becomes unnecessary to go into the question of validity of the amendment of Regulation 67, the effect of the uniform non implementation of Regulation 67 as it stood earlier, and the effect of the absence of a challenge in the writ petition to the amendment to the Regulation itself. It is also not necessary to go into the question whether SCERT should seek the permission of the Government for incurring additional expenditure in terms of service benefits to its employees.
16. It appears to us that in the case of bodies like SCERT, the court cannot ignore the financial implications of implementing the directions that it is called upon to issue. The object of SCERT is laudable and it has to coordinate and promote education in the State. Its resources are limited and the main income is by way of grant from the State Government. When SCERT pleads that it cannot spend the whole of the grant or a major portion of the grant in paying salaries and emoluments to its employees and if it does so, that may tend to frustrate the very object with which the society was formed, it is an argument that has to be considered weighty by a court called upon to exercise jurisdiction under Article 13 Item No.100/ C-3 OA No. 2120/2020 226 of the Constitution of India. A court cannot issue a direction which would tend to frustrate the very object with which a society like SCERT is formed or a body like SCERT is created. After all, there may be a point of time in a welfare State where the right of the employees must be subservient to the right of the society. In the matter of education, surely, the interests of the society at large should prevail and issue of any direction that may endanger such interests must be done with extreme caution and only after careful deliberation.
17. In our view that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution and normally not amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India, we do not find it necessary to pursue further, these other aspects. Suffice it to say, that the direction issued by the High Court cannot be sustained."
12. Reliance has also been placed upon the judgment of Hon'ble High Court in Writ Petition No.3560/2013 titled B.K. Kapoor Vs. Govt. of NCT of Delhi & Ors., in which, it has been held as under :-
"13. The submission advanced that Rule 26 shows complete representation of the Government of NCT Delhi including the Secretary Finance on the Executive Council of SCERT and that since the resolution dated October 13, 2008 was passed when the Secretary Finance was present it has to be treated as a resolution with the approval of the Government of NCT Delhi is noted and rejected 14 Item No.100/ C-3 OA No. 2120/2020 for the reason the Secretary Finance has not been shown to us as having any power to act on behalf of the Government of NCT Delhi with reference to the allocation of business rules to conduct the affairs of the Government of NCT Delhi. A person can wear two hats. The Lt. Governor of Delhi exercises the executive powers on behalf of the Government of NCT Delhi and he alone could have approved the resolution in question."
13. While the learned counsel for the applicant has placed reliance on the judgment of Hon'ble High Court of Delhi in WP (C) No.2121/2023 in Sonu Lal Gupta and Anr. Vs. Union Public Service Commission and Ors., however, the same may not come to her rescue as the applicants in the relied upon matter were working as part of the Directorate of Education and had gone on deputation to the SCERT and were seeking benefit of that period in terms of experience and eligibility, while in the instant matter, the issue is the number of years on contractual basis spent by the applicant in the SCERT. We are guided by the decision rendered by the Hon'ble Supreme Court in Lt. Governor of Delhi & Ors. Vs. V.K. Sodhi & Ors. (supra), as referred to hereinabove. 15
Item No.100/ C-3 OA No. 2120/2020
14. In face of the position brought out above, we find the OA to be devoid of merit and the same is accordingly dismissed.
15. No costs.
(Pratima K Gupta) (Anand Mathur)
Member (J) Member (A)
/rk/