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Judgment
O R D E R
Hon’ble Mr. Rajveer Singh Verma, Member (J) :
The present Original Application (O.A.) has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s) :-
“In view of the above, it is, therefore most respectfully prayed that the Hon'ble Tribunal may kindly be pleased to quash the impugned rejection notice dated 27.02.2019 and direct the respondents to appoint the applicant as Auxiliary Nurse and Midwife granting the age relaxation as mentioned in their advertisement no.01/2014 for Post Code 14/14 along with all the consequential benefits which may arise during the pendency of the present O.A., in the interest of justice.”
Learned counsel for the applicant, narrating the brief factual matrix of the case, submitted that the applicant was born on 19.08.1983, and has been serving continuously as an Auxiliary Nurse and Midwife (ANM) on a contractual basis under the Integrated District Health Society (IDHS), Government of NCT of Delhi, since 17.12.2007.
Pursuant to Advertisement No. 01/2014 by respondent No. 1 (DSSSB) for the post of ANM (Post Code 14/14) under the Municipal Corporations of Delhi, the applicant submitted her online application under the Unreserved Category. Though the general age limit prescribed was 18 to 27 years, the advertisement allowed age relaxation up to 35 years for departmental candidates/government servants. Being 31 years of age at the time of application, the applicant claimed age relaxation based on her continuous contractual service under the Government of NCT of Delhi.
The applicant successfully passed the written examination conducted on 26.04.2015, on merit and was called for document verification on 04.10.2017. Upon being asked vide communication dated 12.11.2018, to substantiate her claim for age relaxation, she submitted her No Objection Certificate-cum-Experience Certificate dated 19.07.2018, confirming her continuous performance of duties as a contractual ANM since 17.12.2007. Thereafter, the respondent No.1 again confirmed from the IDHS i.e. employer of the applicant as to whether the applicant is working on contractual or regular basis vide letter dated 10.01.2019. Upon receiving the response from the IDHS dated 06.02.2019, the respondents issued impugned rejection notice dated 27.02.2019 on the ground of “Being Over-Aged in UR category”.
Learned counsel for the applicant contended that the recruitment notification did not contain any restrictive clause explicitly limiting age relaxation strictly to "regular" or "permanent" employees to the exclusion of contractual workers. In the advertisement itself, relaxation has been granted upto the age of 35 years irrespective of the clause ‘regular’ or ‘contractual’.
To strengthen his claim, learned counsel placed reliance on the following settled judicial precedents:
Union Public Service Commission v. Dr. Jamuna Kurup & Ors. [(2008) 11 SCC 10], specifically para 13 thereof, wherein the Hon’ble Supreme Court held that the word "employee" is a term of wide import and, in the absence of any restrictive definition in the recruitment notification, includes contractual, temporary, ad-hoc, and short-term employees.
All India Institute of Medical Sciences v. Ruchika Madan [2015 SCC OnLine Del 12964], wherein the Hon’ble High Court of Delhi reaffirmed that contractual employees who have gathered relevant experience working under government instrumentalities are entitled to age relaxation when the governing rules/advertisement do not expressly exclude non-regular staff.
It was thus argued that the rejection of the candidature of the applicant after clearing the competitive exam on merit is arbitrary, unjust, and contrary to the principles laid down by the Hon’ble Apex Court and Hon’ble High Court.
Per contra, the respondents have filed their reply opposing the OA. Learned counsel for the respondents submitted that Rejection Notice No. 767 was issued strictly in accordance with service rules and recruitment guidelines.
Learned counsel for the respondents submitted that the applicant was appointed under Integrated District Health Society, purely on a contractual basis. Contractual service does not create a civil post nor does it confer the status of a regular "government servant". Learned counsel for the respondents further submitted that the age relaxation clause in Advertisement No. 01/2014 for "government servants" and "departmental candidates" was intended exclusively for regular employees holding sanctioned posts within government departments or the Municipal Corporation of Delhi. It is further submitted that following a clarification request dated 10.01.2019, sent by DSSSB, the applicant's employer vide letter dated 06.02.2019, explicitly confirmed that her service was purely contractual.
We have carefully considered the rival submissions, evaluated the record, and perused the relied-upon judicial precedents.
The fundamental issue requiring our determination is whether a candidate who has rendered years of continuous service on a contractual basis under a government society is entitled to age relaxation under an advertisement extending age relaxation to government/departmental employees, when the notification does not explicitly restrict such relaxation to regular employees.
The legal position in this regard is no longer res integra. In UPSC v. Dr. Jamuna Kurup & Ors. [(2008) 11 SCC 10], the Hon’ble Supreme Court comprehensively interpreted the scope of the word "employee" in recruitment notices. Para 1 3 o f t h e j u d g m e n t r e a d s a s u n d e r : -
"13.The term 'employee' is not defined in the Delhi Municipal Corporation Act, 1957. Nor is it defined in the advertisement of UPSC. The ordinary meaning of „employee‟ is any person employed on salary or wage by an employer. When there is a contract of employment, the person employed is the employee and the person employing is the employer. In the absence of any restrictive definition, the word „employee‟ would include both permanent or temporary, regular or short term, contractual or ad hoc. Therefore, all persons employed by MCD whether permanent or contractual will be „employees of MCD‟. The respondents who were appointed on contract basis initially for a period of six months, extended thereafter from time to time for further periods of six months each, were therefore, employees of MCD, and consequently, entitled to the benefit of age relaxation. If the intention of MCD and UPSC was to extend the age relaxation only to permanent employees, the advertisement would have stated that age relaxation would be extended only to permanent or regular employees of MCD or that the age relaxation would be extended to employees of MCD other than contract or temporary employees. The fact that the term „employees of MCD‟ is no way restricted, makes it clear that the intention was to include all employees including contractual employees. Therefore, we find no reason to interfere with the judgment of the High Court extending the benefit of age relaxation.”
This principles-based approach was followed by the Division Bench of the Hon’ble High Court of Delhi in All India Institute of Medical Sciences v. Ruchika Madan [2015 SCC OnLine Del 12964]. The Hon’ble High Court observed that when public institutions utilize the services of contractual staff for extended periods, denying them age relaxation to compete for regular selection, in the absence of explicit exclusion clauses in the advertisement, violates the mandate of equal opportunity under Articles 14 and 16 of the Constitution.
It is understood that advertisement No. 01/2014 provided age relaxation to the post code No.14/14 up to 35 years of age to the candidates who were government servants and employees of MCD. It did not contain any qualification that such relaxation was strictly confined to "permanent" or "regular" appointees. Applying Dr. Jamuna Kurup (supra), the term must be given a wider import to include contractual staff. It is further not in dispute that the applicant has been serving continuously as an ANM under a Government of NCT of Delhi health society since 17.12.2007. It is further understood that IDHS operates under the Directorate of Health Services, Govt. of NCT of Delhi, managing public health programmes and administrative medical services. It is also not the case of the respondents that the applicant is not working under Govt. Department. The respondents themselves have admitted in their counter reply that the applicant is working under MCD, the only ground for rejection is that she is working on contractual basis. Therefore, the service and experience of the applicant should not be bruised and overlooked only due to the reason that she is not permanent employee and a contractual employee. This argument is negated in view of the law laid down in Jamuna Kurup (supra). The work performed by her is identical to that required for the post advertised. The applicant appeared for the open written examination and qualified on merit. The prima facie balance of convenience lies in favour of the applicant, who has rendered dedicated public service for over a decade. Denying her the benefit of age relaxation based on a narrow interpretation of her contract employment is legally unsustainable.
Consequently, we hold that Rejection Notice No. 767 dated 27.02.2019, suffers from legal infirmity and cannot be sustained and is liable to be set aside.
In view of the above analysis, the OA is allowed with the following directions:
Rejection Notice No. 767 dated 27.02.2019, issued by Respondent No. 1 (DSSSB), in so far as it rejects the candidature of the applicant for Post Code 14/14, is hereby quashed and set aside.
The respondents are directed to grant the applicant age relaxation by taking into account her continuous contractual service rendered under the Integrated District Health Society, Government of NCT of Delhi.
Respondent No. 1 (DSSSB) shall process her result under the Unreserved Category based on her performance in the written examination and, if found otherwise eligible, and in the order of merit, recommend her name for appointment to Respondent No. 3 (MCD).
Respondent No. 3 in turn shall issue the offer of appointment to the applicant accordingly. The applicant shall be entitled to benefit of notional seniority from the date her immediate junior in the merit list was appointed, but shall not be entitled to back wages for the period she did not work.
The entire exercise, as ordained above, shall be completed within a period of eight (8) weeks from the date of receipt of a certified copy of this order.
All pending MAs, if any, shall stand disposed of. There shall be no order as to costs.