Central Administrative Tribunal - Delhi
Ms. Manita Rani vs Delhi Subordinate Services Selection ... on 29 July, 2015
Central Administrative Tribunal Principal Bench OA No.959/2014 New Delhi, this the 29th day of July, 2015 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr.V.N.Gaur, Member (A) Ms. Manita Rani, R/o 436/7, Ashok Mohalla, Nangloi, New Delhi-41. ...applicant (By Advocate : Shri Akshay Bhardwaj for Shri Manish Garg) Versus 1. Delhi Subordinate Services Selection Board, Government of NCT of Delhi, FC-18, Institutional Area, Karkardooma, Delhi-92, Through its Secretary. 2. Government of NCT of Delhi, Directorate of Education, Through its Director, Old Secretariat, Delhi. 3. Union of India, Through Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Training and Personnel, North Block, New Delhi-01. ...respondents (By Advocate : Shri Anmol Pandita for Shri Vijay Pandita ) ORDER (ORAL)
Mr. A.K. Bhardwaj, Member (J) :-
The prayer made in the present OA filed under Section 19 of the Administrative Tribunals Act, 1985 read thus :-
8.1 To quash/amend in so far as to non-grant of benefit of age relaxation to widows, divorced women and women judicially separated from their husbands and who are not married to Group B post of TGT (Computer Science) in notification No.F.No.D.E. TGT (CS)/E-IV/2011/504 dated 25.04.2013 of the recruitment Rules as notified by the respondent no.2 is concerned for the post of TGT (Computer Science) Non-Gazetted Non-Ministerial Group B post without giving age relaxation to widows, divorced women and women judicially separated from their husbands and who are not remarried and Advertisement No.F.1(231)/DSSSB/ P&P/2014/03 dated 20.1.2014 in alternative 8.2 To declare that Advertisement No.F.1(231)/DSSSB/P&P/2014/03 dated 20.1.2014 is for the vacancies for 2013 as notified in RRs notification No.F.No.D.E.TGT (CS)/E-IV/2011/504 dated 25.4.2013 and thereby directing that the applicant is entitle4d to participate in selection process.
8.3 To direct respondent authorities to issue a corrigendum to the advertisement for post in question in accordance with the notified criteria giving at least chance to the applicant and similarly situated persons with effect from 25.4.2013 is so far age relaxation is concerned.
8.4 If quashing the relevant appointment orders and re-advertisement of the post is not possible the applicant may be compensated for her violation of fundamental rights by monetary compensation.
8.5 To pass any other orders that is deem, just, fit and proper to meet the ends of justice as per facts and circumstances of the present case.
2. The sole grievance of the applicant in the OA is that there should be provision of age relaxation in direct recruitment to the post of TGT (Computer Science) Non-Gazetted - Non-Ministerial Group 'B'. The stand of the respondents in their reply is that the recruitment rules for the post do not provide for any age relaxation to widows and divorced women. The reply to OA was filed on 28.07.2014. Thereafter the applicant sought and availed repeated opportunities to file rejoinder but did not do the needful.
3. We heard the learned counsels for the parties and perused the record. Indisputably, the post in question i.e. TGT (Computer Science) is a Group 'B' post. Though in terms of the provisions of General Instructions, Department of Personnel and Training notified by Notification No.15012/6/98-Estt.(D) dated 21.12.1998, there is provision for age relaxation for widow, divorced women and women judicially separated from their husbands and who are not re-married upto the age of 35 years (upto 40 years for members of SCs/STs) for recruitment to the post in Group G' and 'D' categories, there is no provision for age relaxation in Recruitment Rules for Group 'B' category. For easy reference, the relevant excerpt of the OM is reproduced hereinbelow :-
G.S.R.758 (E).- In exercise of the powers conferred by the proviso to Article 309 and Clause (5) of Article 148, of the Constitution and after consultation with the Comptroller and Auditor-General of India in relation to the persons serving in the Indian Audit and Accounts Department, the President hereby makes the following rules regulating the upper age-limit for recruitment to the Central Civil Services and Civil posts under the Union..
xxx xxx xxx Category of Persons to whom Age concession is admissible Categories of Posts to which the Age concession is admissible Extent of Age concessions (xvii) Widows, divorced women and women judicially separated from their husbands and who are not re-married Group C and Group D posts filled through the Staff Selection Commission and Employment Exchange.
Up to the age of 35 years (up to 40 years for members of SCs/STs).
3. Also in OM No.41034/1/2014-Estt(D) dated 30.01.2014, it has been provided that there should be age relaxation for appointment of widows, divorced woman and woman judicially separated from their husbands and who are remarried up to the age of 35 years (40 years for member of SCs/STs) in recruitment to the post of Group C and Group 'D' categories. The OM reads thus:-
No.41034/1/2014-Estt(D) Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) North Block, New Delhi-110001.
Dated-30.01.2014 OFFICE MEMORANDUM Subject:- Action Taken on 62nd Report of the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on the Status of Women Government Employees, Service Conditions, Protection Against exploitation, Incentives and other related issues regarding.
*** The undersigned is directed to refer to Para 20.1 and Para 20.2 of the 62nd Report of the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice wherein, the Committee has drawn attention to extant instructions of the Government on age relaxation for appointment of widows, divorced woman and woman judicially separated from their husbands and who were not remarried allowing age concession up to the age of 35 years (40 years for member of SCs/STs) for the post of Group C and erstwhile Group D filled through SSC/Employment Exchange and has directed scrupulous compliance of these instructions by all administrative authorities.
2. The Department of Personnel and Trainings OM No.15012/13/79-Estt.(D) dated 19.1.1980 provides that for purposes of appointment to Group C and D posts under the Central Govt. filled through the SSC and the Employment Exchange, the upper age limit in the case of widows, divorced women and women judicially separated from their husbands who are not remarried shall be relaxed upto the age of 35 years (upto 40 years for members of Schedules Castes/Schedules Tribes) by invoking the provisions in the relevant recruitment rules, subject to production of a certified copy of the judgment/decree of the appropriate court to prove the fact of divorce or the judicial separation, as the case may be (provided through DoP&T O.M. No.15012/1/82-Estt.(D) dated 06.09.1983). Further, this relaxation has been extended to Group A & B posts except where recruitment is made through open competitive examination vide DoP&T O.M. No.15012/1/87-Estt.(D) dated 05.10.1990.
3. All Ministries/Departments are requested to bring these instructions to the notice of all concerned including attached and subordinate offices for strict compliance.
(Arunoday Goswami) Under Secretary to the Govt. of India
4. Thus, it is clear that there is no provision for age relaxation in favour of widow, divorced women and judicially separated women in recruitment for the post in Group 'B' categories. The applicant has not questioned the aforementioned policy decisions of the Government. As has been ruled by the Honble Supreme Court in Mallikarhyba Rao Versus State of Andhra Pradesh AIR 1990 SC 1251, it is not open to the Courts or Tribunals either to interfere with the existing policy decision or to legislate casually. The relevant excerpt of the judgment read thus :-
11. This Court relying on Narender Chand Hem Raj & Ors. v. Lt. Governor, Union Territory, Himachal Pradesh & Ors., [1972] 1 SCR 940 and State of Himachal Pradesh v. A parent of a student of medical college, Simla and Ors., [1985] 3 SCC 169 : (AIR 1985 SC 910) held in Asif Hameed & Ors. v. State of Jammu & Kashmir & Ors., [1989] Supp. 2 SCC 364 : (AIR 1989 SC 1899) as under:
"When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike-down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power-of judicial review of administrative ac- tion, the court is not an appellate authority. The constitu- tion does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive."
12. The Special Rules have been framed under Article 309 of the Constitution. The power under Article 309 of the Constitution to frame rules is the legislative power. This power under the constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The Courts cannot usurp the functions assigned to the executive under the constitution and cannot even indirectly require the execu- tive to exercise its rule making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution.
5. In view of the aforementioned, the OA is found devoid of merits and is accordingly dismissed. No costs.
( V.N. Gaur ) ( A.K. Bhardwaj ) Member (A) Member (J) rk