Meenakshi Sharma vs South Delhi Municipal Corporation And Ors

Praveen Mahajan, Member (A)

Briefly stated, the facts of the current case are that the applicant was working as Teacher (Primary) with South Delhi Municipal Corporation (SDMC) on contract basis on 21.08.2003. On 16.10.2007, the respondents issued an Advertisement No. 08/2007 for recruitment of Teacher (Primary) vide Post Code No. 165/07. The applicant submitted her form to participate in the competitive exam being a departmental candidate. The result was declared in the month of January, 2009 where the applicant did not find herself in the list of selected candidates. When she did not get any satisfactory reply on repeated queries, she filed an application under Right to Information Act on 04.12.2014 by which she was informed that the marks obtained by her were 122/200 but she was not selected being over age. The applicant states that the respondents vide Notification dated 13.07.2007 amended the Recruitment Rules (RRs) for Teacher (Primary) whereby the upper age for appointment of teacher was reduced from 32 to 27 years for male and 42 to 27 years for female. The contention of the applicant is that at the time of her appointment on contractual basis as Teacher (Primary) she was within the prescribed age limit for the post as per the RRs prevailing at that time, which was 32 years for male and 27 years for female.

It is further averred that the respondents have been giving appointments to other similarly placed candidates against the same Post Code-165/07 under the orders of Central Administrative Tribunal and Hon'ble High Court of Delhi. The applicant, therefore, submits that she is also entitled for extension of judgment to get age relaxation being a departmental candidate. The respondents are competent to grant age relaxation to teachers, who are already in service as Teacher (Primary) on contract basis and are employees of the respondents. The applicant has relied upon guidelines of O.M. of DoP&T dated 20.05.1988 reiterated vide O.M. dated 30.01.1990.

It is further submitted that in OA-714/2009, the Tribunal had directed the respondents to grant relaxation to other similarly placed candidates. This order, on challenge, was dismissed by the Hon'ble High Court of Delhi in Writ Petition (Civil) No. 1641/2011 dated 15.11.2011 upholding the judgment of the Tribunal. Ratio of this judgment was extended in many other OAs as well. Aggrieved by this decision of the respondents, the applicant has sought the following reliefs:-

"(i) extend the ratio of Judgment dated 15.11.2011 of Hon'ble High Court of Delhi in Writ Petition (Civil) No. 1641/2011 being extended in several Original Applications by this Hon'ble Tribunal including the order dated 28.3.2014 in O.A. No. 641/2013, by giving the benefit to the applicant for the age relaxation to the post code no. 165/07 for the appointment of Teacher (Primary).

(ii) direct the respondents to give age relaxation to the applicant and offer her for the appointment of Teacher (Primary) to the post code no. 165/07; and/or

(iii) pass a direction to regularize the applicant as Primary Teacher in the school of the respondent no.1/corporation with consequential service benefits with respect to salaries and other benefits in favour of the applicant.

(iv) Any other/further order(s) instruction(s) and direction(s) as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case, may also kindly be passed in favour of the applicant and against the respondents."

The applicant has also placed reliance on the following judgments:-

(i) UPSC Vs. Dr. Jamuna Kurup and Ors., (2008) 11 SCC 10.

(ii) UOI & Ors. Vs. Shantiranjan Sarkar, (2009) 3 SCC 90.

(iii) Achala Saluja Vs. UOI & Anr., LA.APP. 584/2011 dated 23.03.2016.

(iv) R.H. Vaswani Vs. UOI & Ors., 113 (2004) DLT 19

4.1 On issue of delay, the applicant has relied on the decision of Hon'ble Supreme Court in the case of K.C. Sharma and Others Vs. UOI & Ors., (1997) 6 SCC 721.

In the counter, the respondents state that the O.A. is hit by limitation and contrary to Section-21 of the Administrative Tribunals Act, 1985. The applicant had applied for the post of Teacher (Primary), the result of which was declared in October, 2009 whereas the current O.A. has been filed in May, 2016. In this regard, reliance has been placed on the following judgments:-

(i) Dhiru Mohan Vs. UOI, Full Bench CAT 1989-1991 Vol.II page 448.

(ii) DCS Negi Vs. UOI & Ors., [SLP(Civil) No. 7956/2011] decided on 07.03.2011.

(iii) S.S. Rathore Vs. UOI & Ors., AIR 1990 SC 10.

(iv) Karnataka Power Corporation Ltd. Through its CMD and Anr. Vs. K. Thangappan and Anr., 2006(4) SCC 322.

(v) Sh. Bhoop Singh Vs. UOI & Ors., 1992(3)SCC 136.

(vi) UOI & Ors. Vs. M.K. Sarkar, 2010(2)SCC 58.

(vii) P.K. Ramachandran Vs. State of Kerala & Anr., JT 1997 (8) SC 189.

(viii) State of Karnataka Vs. S.M. Kotraya, 1996(7)SCALE 179.

We feel that keeping in view the facts and circumstances of the case, this is a fit case in which the delay needs condonation in the interest of justice. The applicant continued to approach the respondents for relief granted to similarly placed persons and ultimately had to resort to seek relief by way of filing the current O.A. Delay is accordingly condoned.

We have gone through the facts of the case and the rival contentions of both sides. We feel that the issue involved in the current O.A. stands squarely covered by the judgment of the Hon'ble High Court of Delhi in WP(C) No. 1641/2011 dated 15.11.2011. The Hon'ble High Court has put the matter to rest by observing that:-

"9. In the aforesaid backdrop, the submission of the learned counsel for the petitioner is that the respondents are not entitled to age relaxation. According to her, as per the judgment of this Court in Sachin Gupta, the amendment in rules has been upheld and age relaxation was given only in respect of those candidates who qualified the ETE course in the years 2006 to 2008. She points out that in so far as the respondents herein are concerned, they had completed ETE course in the year 2001 and therefore cannot be given age relaxation as provided by this Court in Sachin Gupta (supra) which limited the same to only those who qualified the ETE course in the years 2006 to 2008. It is further submitted that in such circumstances, the learned Tribunal was wrong in applying the provision of Article 14 of the Constitution of India in as much as the two groups, one considered on the basis of Sachin Gupta and the other namely the respondents herein fall in altogether two different categories. According to her they are not at par and therefore question of discriminating the respondents does not arise as the amendment in the rules has already been upheld by this Court. It is also the submission of the learned counsel for the petitioners that as a recruiting agency the petitioner has to follow the norms stipulated in the rules and there is no provision for age relaxation.

The learned counsel for the respondents on the other hand submits that these respondents have been working as Primary Teachers in MCD since 2001 when they were admittedly within the age limit as per the rules which were in force at that time and even as per the amended rules. It is also pointed out that they are continuously working on contract basis and after having worked for all these years they cannot be denied their due consideration for appointment on regular basis as Primary Teachers.

After hearing the counsels for the parties, we are of the view that impugned judgment rendered by the learned Tribunal does not call for any interference though we have our own reasons for arriving at the same conclusion and each of which reasons is independent and sufficient to sustain the order.

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."

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.

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. "

We have gone through the above judgments and find that the issue has already been decided by the judgment of Apex Court in the case of Dr. Jamuna Kurup & Ors. (supra) wherein the following has been held:-

"Eligibility conditions-Age relaxation-Five years age relaxation to "employees" of Municipal Corporation of Delhi-Whether persons engaged on contract for a specified period, entitled to age relaxation - Held, neither the advertisement nor DMC Act defined the term "employee" - The term has therefore to be given ordinary meaning, which includes contractual employees also."

In view of the foregoing discussion, the O.A. is allowed. The respondents are directed to grant age relaxation to the applicant as granted to similarly placed persons and offer her appointment to the post of Teacher (Primary) with all consequential benefits with respect of salaries and other benefits. This may be done within a period of two months from the date of receipt of a certified copy of this order. No costs.