Central Administrative Tribunal - Delhi
Manju Aggarwal vs Govt. Of Nct Of Delhi on 13 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 3044 /2010 New Delhi, this the 13th day of January, 2012 Honble Mr. G.George Paracken, Member (J) Honble Dr. A.K.Mishra, Member (A) Manju Aggarwal D/o Shri Radhey Shyam Aggarwal r/o B-19, Krishan Vihar, New Delhi. .. Applicant (By Advocate: Shri Ajesh Luthra) Versus Govt. of NCT of Delhi Through the Chief Secretary, 5th Floor, Delhi Sachivalaya, New Delhi.
M.C.D. Through its Commissioner Town Hall, Delhi Delhi Subordinate Services Selection Board Through its Chairman Govt. of NCT of Delhi, F-18, Karkardooma Institutional Area, Delhi-92 Respondents (By Advocate : Shri Abhishek Sharma, Respondent no.1&2) (Shri Vijay Pandita, Respondent no.3) Order Shri G.George Paracken The applicant was working as Teacher (Primary) in the Municipal Corporation Delhi (MCD for short) on contractual basis w.e.f. 09.09.2005. He is still continuing in that capacity. The respondent No.3, namely, Delhi Subordinate Services Selection Board (DSSSB for short) advertised vacancies for Teacher (Primary) in MCD by way of direct recruitment under post code no. 016/08. The applicant was also one of the candidates and she had participated in the recruitment. By Annexure A-5, the DSSSB has published the consolidated final merit list in which the applicants name was included. She scored 147 marks under the un-reserved category and the last selected candidate has scored only 114 marks. However, by Annexure A-6 when the DSSSB has issued the final result Notice No.46 dated 16.10.2009, her name was not included. On enquiry, she found that she was not selected because the DSSSB treated her as Over in Age candidate. The DSSSB did not consider the representation made by the Applicant against the same.
2. The maximum age limit prescribed by the DSSSB was 27 years as on the closing date of receipt of application i.e. 12.08.2008. However, upper age limit was relaxable for the different categories. The departmental candidates/Government Employees were entitled for 5 years relaxation. According to the applicant, she being a contractual employee in MCD itself, she should have been treated as departmental candidate and the DSSSB should have granted her age relaxation upto 5 years. In that case, she would have come sufficiently high in the merit list and would have become eligible for appointment.
3. The learned counsel for applicant Mr. Ajesh Luthra has submitted that the contractual employees have already been declared as departmental employees by the Courts & Tribunals and consequently the respondents have also treated them accordingly. In this regard he relied upon the Order of a coordinate Bench of this Tribunal in the case of Preeti Rathi & Others vs MCD & ors in OA 714/2009 decided on 20.08.2010 wherein it has been held as under :-
2. Heard the learned counsel for the parties.
3. Applicants through this OA have sought declaration of result for the posts of Primary Teachers and appointment on relaxation of age.
4. On factual matrix applicants were appointed on contract basis as Primary Teachers in MCD in the year, 2001 when they were within the age limit.
They have passed the ETE diploma course when the age limit was 27-30 years, which was notified on amendment as 27 years for both male and female candidates on 13.07.2007. The aforesaid amendment was challenged before the High Court of Delhi in Sachin Gupta & Others v.DSSSB & others. 152 (2008) DLT 378 (DB) whereby an exception carved out for age relaxation to those who qualified the ETE course in the years 2006 to 2008. The Writ Petition was allowed on the basis of which learned counsel of applicants states that the applicants who were eligible at the time of appointments apart from the decision in Sachin Guptas case (supra) being applicable to them are covered by the decision of the Apex Court in Harminder Kaur vs. Union of India, 2009 (7) SCALE 204. Learned counsel also relied upon the decision of the Tribunal in OA No.498/2010 Suman Lata Sharma v. Govt. of Delhi & others, decided on 08.07.2010 and decision of the High Court in Sharmila & Anr. v. DSSSB & Ors., Writ Petition (Civil) No.228/2010 decided on 14.01.2010 where irrespective of qualifying the ETE course and the year in which it has been qualified the benefit has been accorded to the concerned. The aforesaid dicta has also been followed by the Tribunal in Parul Dhingra v. Govt. of NCT of Delhi & others (OA No.2983/2009) decided on 18.03.010, against which a Writ Petition is pending, whereby the stay has been granted but the same does not preclude us from treating it as a precedent to follow the dicta.
6. Learned counsel has also taken an additional ground that in the case of contract Teachers age relaxation has been given by the Lieutenant Governor vide an order passed on 25.05.2010, which has now been sought by invoking Article 14 of the Constitution of India by the applicants.
7. On the other hand learned counsel for respondents vehemently opposed the contentions and stated that the decision in Sachin Gupta (supra) would not apply in the case of applicants and the applicants having not passed the ETE course during the years 2006 to 2008 are not eligible to be given age relaxation. The age relaxation accorded by the Lieutenant Governor has been directed not to be quoted as a precedent in future.
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.
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 be applicants in violation of Article 14 of the Constitution of India.
Resultantly, OA is allowed. Respondents are directed to declare the result of applicants and as per their result on age relaxation be offered appointments as Primary Teachers within a period of three months from the date of receipt of a copy of this order. No costs.
4. The respondents challenged the aforesaid order before the Honble High Court of Delhi in WP(C) 1641/2011 and was decided on 15.11.2011 relying upon a judgments of the Honble Supreme Court in UPSC vs. Dr.Jamuna Kurup (2008) 11 SCC 10 and in UPSC vs. Girish Jayanti Lal Vaghela (2006) 2 SCC 482 holding that contractual employees are departmental candidates. The relevant part of the aforesaid judgment of the Honble High Court reads as under :-
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.
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 challendged, 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.
5. Relying upon the aforesaid Order of the Tribunal as upheld by the judgment of High Court of Delhi in the case of Preeti Rathi and Others (supra), this very same bench of this Tribunal has allowed OA.3097/2010, Ms.Sunita Sharma vs. GNCTD of Delhi and ors. vide order dated 01.11.2011.
6. The Learned Counsel for applicant has also submitted that even though he has taken various other grounds in this OA in support of the relief sought by him, in view of the aforestated undisputed position, he is not pressing any of them.
7. Respondents (DSSSB & MCD) have filed their respective replies on 18.10.2010 & 05.01.2007. Both of them respondents have opposed this OA and sought its dismissal. However, they have not considered the aforesaid judgment of the Honble High Court in WPC 1641/2011 (supra).
8. We have heard Learned Counsel for the parties in this case. After the judgment of the Honble High Court in WP (C) 1641/2011 Preeti Rathi and others case (supra), there need not be any doubt that contractual employees have to be treated as departmental employees and they are entitled for age relaxation for direct recruitment. Therefore, we allow this OA and reject the decision of the respondents that applicant being a contractual employee is not a departmental candidate for the purpose of granting age relaxation. Consequently, the respondents shall consider the applicant as a departmental candidate and grant the age relaxation as available to the departmental candidates. As the applicant has already scored a high position in the merit list, respondents shall declare her result and if found otherwise suitable & eligible, she shall be appointed as Teacher (Primary) in MCD with all consequential benefits except back wages. The aforesaid direction shall be complied with, within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
(A.K.Mishra) (G.George Paracken) Member(A) Member(J) uma