Govt Of Nct Of Dlehi & Ors vs Vandana Gupta And Ors

Manmohan, J

The petition has been heard by way of video conferencing.

Present writ petition has been filed challenging the order dated 11th October, 2018 passed by the Central Administrative Tribunal [hereinafter

referred to as the ‘CAT’] Principal Bench, New Delhi in OA No. 336/2018 whereby the respondent-applicant’s O.A has been allowed and

they have been granted benefit of age relaxation and allowed to apply for the post of Assistant Teacher (primary). The relevant portion of the

impugned order is reproduced hereinbelow:-

“3. Pursuant to Annexure A-1 Advertisement No.04/17 of Delhi Subordinate Services Selection Board (DSSSB) dated 20.12.2017, the

applicants applied for the post of Assistant Teacher (Primary) in three Municipal Corporations of Delhi. It was indicated in the

Advertisement that the age limit prescribed for the said post is 30 years, which is relaxable, as indicated in para-6 of the Advertisement for

various categories in the post of Guest/Contract Teachers. It is further stated therein that relaxation in upper age as a onetime measure up

to the actual time spent as Guest/Contract Teachers in the Directorate of Education, subject to a maximum of 5 years provided they have

worked for at least 120 working days in that particular year. It is further stated that age relaxation should be applicable only for

Guest/Contract Teachers, who have worked for the academic years 2012-13, 2013-14, 2014-15, 2015-16 and 2016-17. All these applicants

satisfy this criterion, except that they have been working in the three Corporations and not under the Directorate of Education. It is well

settled that the Corporations are to be treated at par with the Government Department in such matters. We have no doubt in our mind that

the age relaxation applicable to Guest/Contract Teachers, as stipulated in the Advertisement, is also ipso facto applicable to these

applicants as well. Our view is further fortified by order of this Tribunal in OA No.3044/2010 dated 13.01.2012 (Manju Aggarwal Vs. Govt.

of NCT of Delhi & Ors), wherein it is held as under:-

“We have heard Learned Counsele for the parties in this case. After the judgment of the Hon’ble 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

candidate. 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.â€​

In view of the above, we allow this OA and direct the respondents to grant age relaxation to the applicants at par with the Assistant

Teacher (Primary) on contact basis of Directorate of Education, GNCTD and, accordingly, process their candidatures for further action.â€​

Ms.Avnish Ahlawat, learned counsel for the petitioners submits that the issue involved in the present case is covered by the judgment dated 30th

January, 2020 passed by the Division Bench of this Court in a batch of matters wherein the lead matter was Govt. of NCT of Delhi & Anr. Vs. Anita

Kataria & Ors. being W.P.(C) No.1445/2019.

Ms.Avnish Ahlawat, further submits that the CAT failed to appreciate that the respondents had already availed age relaxation benefits in the

requisition sent by MCD for the post Code 16/17 and 01/18 and appeared for the post of Assistant Teacher (Primary) in MCD schools.

We have perused the judgment dated 30th January, 2020 and are of the opinion that the same has no application to the facts of the present case as

would be apparent from the following paragraphs in the said judgment:-

“1. In this batch of writ petitions, the petitioners are aggrieved by almost identical orders passed by Central Administrative Tribunal

(‘Tribunal’).

To appreciate the submissions made by Mrs. Avnish Ahlawat, learned Standing Counsel appearing for petitioners, we deem it appropriate

to reproduce the operative portion of interim order passed by the Tribunal in batch matters ‘Soma and Others Vs. Govt. of NCT of Delhi

and Others’: O.A. No.463/2018 & others decided on 23.10.2018 :

“6. We, therefore, dispose of these OAs directing that :

(a) the respondents shall proceed to declare results of the examination which was held in pursuance of the impugned

notification/advertisement.

(b) the interim order passed in these OAs, shall not be construed as conferring eligibility upon them, but the same shall be decided by the

respondents separately.

(c) in case the applicants or any of them are found to be in the zone of selection, the respondents shall inform such of them through a notice

as to how they are not eligible to participate in the selection process, duly indicating the reasons.

(d) the applicants shall be entitled to submit their explanation/representation putting forward their grievance, within 15 days from the date

of receipt of such communication.

(e) further steps shall be taken by the respondents as regards the applicants only after passing a reasoned order, on the basis of the notice

and reply, if any.

(f) the verification as indicated shall be undertaken along with the results in the examination. It shall be open to the applicants to approach

the Tribunal if their grievance subsists. There shall be no order as to costs.â€​

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Mrs. Ahlawat submits that the O.As. could not have been decided without deciding the issue raised; and directions could not have been

issued allowing the applicants to submit their applications offline when a proper procedure for submitting the applications online was

prescribed. She further submits that vide the interim-orders passed, the candidates who were prima-facie over-age and ineligible, for not

having cleared the Central Teacher Eligibility Test (CTET), were also permitted to appear in the examination. Directions were issued to

declare the results; and thereafter an unusual procedure was followed by directing the petitioners herein to inform all the candidates who

were in the zone of selection through a notice as to why they are not eligible to participate in the selection process indicating reasons. The

Tribunal further granted liberty to the applicants to submit their explanations/representations putting forward their grievance within 15

days; and a direction has also been passed to the petitioners to pass a reasoned order on the basis of such notice and reply.

xxx xxx xxx

We have heard learned counsel for the parties and have examined the order passed by the Tribunal, relevant extracts of which we have

already reproduced above. The Tribunal granted leave to the applicants to appear in the examination; and thereafter, vide the impugned

orders, all O.As. were allowed with directions to the petitioners to declare the results; and as per direction “(c)†in the impugned order,

if an applicant was not eligible, the applicant was to be informed, giving reasons for rejection; and thereafter, time was required to be

given to the applicant to put-forward their explanations/representations within 15 days; and subsequently a reasoned order was to be

passed by the petitioners.

In our view the Tribunal exceeded its jurisdiction in passing such directions, especially for the reason that there is no discussion on the

merits of the matter nor have the contentions of the parties been noted muchless the law which has been relied upon. As noticed above

according to the petitioners, the legal position is against the respondents. We are also of the view that the terms of the advertisement could

not have been varied by the Tribunal; and, as far as possible, the court should be slow in treading on such a path since it can cause serious

prejudice to the rights of the parties. We are also of the considered view that there was no necessity for calling upon the petitioners to

inform each applicant the reasons for rejection; and thereafter putting in place an elaborate process by which representations and

explanations were to be received and reasoned orders were to be passed. If such procedures are encouraged, public bodies like DSSSB,

UPSC etc. would find it impossible to conduct public examinations and fill-up vacancies for the user-departments.

Accordingly, we set-aside the impugned orders of the Tribunal, being conscious of the fact that to a large extent the orders already

stand complied with. We also make it clear that if any of the respondents are aggrieved by the orders of rejection, they would be at liberty

to seek such remedy as available to them in accordance with law.â€​

In fact, in the present case, the CAT has given a clear and categorical finding while disposing of the O.A that Assistant Teachers (Primary) of

Municipal Corporations are at par with Government departments in matters of age relaxation.

As far as the submission that the respondents have already availed the age relaxation benefit in the requisition sent by MCD is concerned, we find

that no such contention had been raised by the petitioners before the CAT in its reply affidavit to the O.A.

At this stage, Ms.Ahlawat states that out of 51 applicants who had filed the present O.A, only one applicant i.e. Ms.Manisha had been successful in

the examination. She states that the fact that Ms.Manisha had availed the age relaxation benefit in the requisition sent by the MCD came to the

knowledge of the petitioners post final disposal of the present O.A.

Since according to the petitioners, this was a fact which came to their knowledge after the passing of the impugned order, this Court grants liberty

to the petitioners to file an appropriate application before the CAT, in accordance with law, within four weeks. However, this Court clarifies that it has

not expressed any opinion on the merits of the application proposed to be filed by the petitioners. All the rights and contentions of the parties with

regard to the proposed application are left open. With the aforesaid liberty and findings, present writ petition along with pending applications stand

disposed of.

The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail.