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Judgment
O R D E R
By Hon’ble Mr. Anand Mathur, Member (A):
Learned counsel for the applicant stated as under:-
The applicant was initially appointed as A.N.M. (Auxiliary Nurse/Midwife) by respondent no.3 on contract basis w.e.f. 16.09.2005 for a period of six months or till such time the post is filled up on a regular basis through DSSSB, whichever is earlier subject to terms & conditions contained in the Memorandum dated 13.09.2015. With some mandatory breaks, the applicant was granted extensions from time to time after expiry of each period of six months, till 28.11.2017.
Respondent no.2 issued a vacancy notice bearing Advertisement No.01/14 on 20.01.2014 inviting online applications for recruitment to various posts including the post codes 14/14, 15/14 and 16/14 fixing the cut-off date for reckoning the age of the candidates as on 27.02.2014. As per the aforesaid Notice, the requirement of age for applying for the posts under post codes 14/14, 15/14 and 16/14, was as under:-
“Age Limit: 18-27 years (relaxable for SC/ST-05 years, OBC-03 years, PH-10 years, PH & OBC-13 years, PH&SC/ST-15 years, Government servants and employees of MCD upto 35 years.”
As on the cut-off date, the applicant was 30 years and 4 months old. Since she was working with respondent no.3 w.e.f. 16.09.2005, being its employee, she applied online for the posts as per post codes 14/14, 15/14 and 16/14 and claimed age relaxation upto 35 years under OBC category of MCD. Having been found eligible as per the criteria laid down in the Vacancy Notice, the applicant was issued an e-admit card and allotted Roll No.81003897 for the selection process.
On 26.04.2015, the applicant appeared in the written examination and was declared qualified securing 70 marks vide Result Notice No. 520 dated 01.08.2016 for post code 14/14. The applicant’s name was included in the list of 51 candidates recommended for provisional selection.
It came as an utter surprise to the applicant that respondent no.2 vide Rejection Notice No.577 dated 21.09.2017, rejected her candidature for the post of ANM (Post Code 14/14) declaring her ineligible on account of being ‘overage’.
Aggrieved, the applicant filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
“i)Set aside the rejection order passed by the respondent no.2 in respect of the candidature of the applicant on account of overage vide Office Notice No.577 dated 21.09.2017.
ii) Direct the respondents to give the appointment to the applicant giving age relaxation to consider her candidature as eligible to the Post Code No.14/14 for the recruitment of A.N.M. (Auxiliary Nurse/Midwife).
iii) 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.”
Per contra, respondent no.3 has filed a counter affidavit opposing the OA stating that since the applicant was a contractual employee, she was never assured by respondent no.3 in any office order or in the terms & conditions of the contract that she would be given any age relaxation at any time, if she applied for the post of ANM to DSSSB. Moreover, as per vacancy notice, employees of MCD were to be given age relaxation upto 35 years as on the cut off date, but that does not apply to the case of the applicant because the condition of age relaxation was meant for permanent/regular employees of respondent no.3 only.
Respondent nos. 1 & 2 have also filed their counter affidavits on the same lines as has been filed by respondent no.2. Respondent no.4 has stated that since the rejection notice had been issued by respondent no. 2, hence, respondent no.4 has nothing to do with the same. However, it has been stated that the word ‘employee’ denotes a ‘regular employee’ and not a person working on ‘contract basis’, hence, age relaxation was applicable only to regular/permanent employees and not to contractual persons like the applicant.
The applicant has filed rejoinder opposing the averments made in replies of the respondents, more or less reiterating the averments made in the OA and that contractual employees of MCD were not specifically excluded in the Vacancy Notice.
Heard Mr. Rajnish, learned counsel for the applicant and Mr. Amit Yadav, Ms. Ridhi Dua and Ms. Anupma Bansal, learned counsel for the respondents and perused the material on record including the decisions relied upon by the learned counsel for the applicant. We have also gone through the written synopsis filed by the learned counsel for the applicant.
The only question that arises for consideration is whether contract employees are entitled to the benefit of maximum age prescribed for departmental candidates, for appointment as direct recruits?
In support of his claim, learned counsel for the applicant has relied upon the decision of the Hon’ble Apex Court in Union Public Service Commission vs. Dr. Jamuna Kurup & Ors [2008 (11) SCC 10] wherein the following question arose for consideration:-
“The only question that arises for consideration is whether the word „employees of MCD‟ should be construed as referring only to permanent or regular employees of MCD as contended by UPSC or to all employees of MCD including contract employees, as contended by respondents.”
The aforesaid question was answered by the Hon’ble Apex Court in the following terms:-
“13.The term „employees‟ 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”.
Learned counsel further relied upon the decision of the Hon’ble High Court of Delhi in DSSSB & Ors. Vs Preeti Rathi & Ors. [WP(C) No.1641/2011 decided on 15.11.2011] wherein following the dicta of the aforesaid decision of the Hon’ble Apex Court, it was held as under:-
“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 that time of initial appointment on contract/casual basis the incumbent was within the age limit and was not over age. If that is so, to the extent of service rendered by such an employee, the benefit thereof has to be given.”
Learned counsel further relied upon the decision of a Coordinate Bench of this Tribunal in an identical OA titled as Manju Aggarwal vs. Govt. of NCT of Delhi & Ors. [OA No.3044/2010 decided on 13.01.2012], which was decided in the following terms:-
“8.We have heard learned counsel for the parties in this case. After the judgment of the Hon‟ble High Court in WP(C) No.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…”
In view of the decisions supra, the matter is no more res integra. It has been clarified that the term ‘employees of MCD’ that the intention was to include all employees of MCD irrespective of their being contractual or ad hoc.
In conspectus of the facts and circumstances of the case, we are of the considered opinion that the applicant is entitled to the benefit of maximum age prescribed for departmental candidates. Therefore, the impugned Office Notice No.577 dated 21.09.2017 whereby candidature of the applicant was rejected on account of her being over age, is quashed and set aside. The respondents are hereby directed to consider her candidature for recruitment as A.N.M. granting her age relaxation upto 35 years, as available to departmental candidates. The respondents are further directed to declare the result of the applicant, if she is otherwise found eligible and suitable as per her merit in the selection process. She be offered appointment as ANM from the date her immediate junior (as per merit) had been appointed. If the applicant is appointed, she would be entitled to consequential benefits only on a notional basis.
The exercise, as ordained above, shall be completed by the respondents within a period of three months from the date of receipt of a certified copy of this order.
The instant OA is disposed of in the aforementioned terms.
No order as to costs.