Vandana Gupta & Ors. vs Govt. of NCT of Delhi & Ors.

“(i)

To declare the action of respondents in treating the applicant ineligible for appointment to the post of Assistant Teacher (Primary), Directorate of Education, as illegal, arbitrary and unjustified and direct the respondents to consider the candidature of applicant for appointment to the aforesaid post by giving age relaxation for the period the applicant has worked as Assistant Teacher (Primary) in North DMC, South DMC & East DMC.

(ii)

To quash and set aside the impugned Advertisement No. 04/17 dated the extent 20.12.2017 (A-1) to contractual employee of North DMC, South DMC & East DMC (Applicant) have been denied age relaxation of 5 years at par with contractual employee / Guest Teachers of Directorate of Education, Govt. of NCT of Delhi for appointment to the post of Assistant Teacher (Primary), Post Code 89/17 and direct the respondents to grant 5 years age relaxation to the applicants at par with contractual employee of Directorate of Education, Govt. of NCT of Delhi and as per Govt. of India instructions and the law on the subject and consider their claim for selection and appointment as Assistant Teacher (Primary), Post Code 89/17, Directorate of Education, Govt. of NCT of Delhi.

(iii)

To allow the OA with cost.

(iv)

Any other orders may also be passed as this Hon'ble Tribunal may deem fit and proper in the existing facts and circumstances of the case.”

“5.

We have gone through the counter reply filed by the respondents and there is no categorical averment to the effect that the applicant is not entitled to the benefit of age relaxation as set forth in the vacancy notice and as reproduced above. Therefore, to that extent, we hold that the candidature of the applicant could not have been rejected by holding him to be not entitled to the said benefit of relaxation. Learned counsel also points our attention towards the Office Memorandum dated 11.06.2019 titled "Relaxation in upper age limit to the contractual employees working under Government of NCT of Delhi at the time of regular appointment on direct recruitment basis" and submits that the case of the applicant is covered under the provisions of the said Memorandum. Learned counsel for the respondents contests this averment pointing out that the relaxation given by the aforesaid Memorandum was only a one time measure.

6.

As far as the applicant's status as a contractual employee of MCD is concerned, learned counsel submits that in the main body of the OA, he has one of the Hon'ble quoted from three judgments, Apex Court and two of the Hon'ble High Court of Delhi, wherein it has been unambiguously held that nefit of employees of MCD would be entitled to the age relaxation and other such provisions as are available to the regular employees of the Govt. of NCT of Delhi, specifically mentioning employees' entitlement vests on the fact that the MCD also functions by way of grant-in-aid from the that MCD consolidated funds of India and they cannot be pushed to inferior service conditions. As stated earlier, there is no dispute qua the facts of the case.

7.

We have no doubt in our mind that the applicant is entitled to the benefit of age relaxation as set forth in the vacancy notice and as quoted in the preceding paragraphs having requisite experience in the same line/allied cadre; it is worthwhile to reiterate that the post applied for is Assistant Teacher (Primary) and the applicant has been working as Teacher in primary schools of the MCD. It has also beenconclusively established that the experience gained as an MCD employee, against the background of the judgements referred to above, would hold good for all purposes for appointment under such age relaxation in the Govt. of NCT of Delhi.

8.

There being no other issue, we have no hesitation in allowing the present OA and setting aside the rejection notice No.791 dated 14.08.2019 issued by the DSSSB. We hold that the applicant is entitled to get the benefit of age relaxation in terms of the provisions set forth in column 6 of the vacancy notice. Accordingly, the respondents shall declare the result qua the applicant and take further action with respect to his appointment as Assistant Teacher (Primary), should he have been successful in the said selection process. In case of the applicant having been successful in the selection process, appointment shall be given within a period of six weeks' from the date of receipt of a certified copy of this order, along with all the consequential benefits with effect from the date other Assistant Teachers (Primary) were appointed pursuant to the selection examination which is the subject of this OA. However, the applicant shall be entitled to these consequential benefits on notional basis.

9.

The OA stands allowed against the background of these directions. There shall be no order as to costs.”

“7.

This Court has considered the submission. It is evident that recruitment notice in the year 2017 was issued by the Government. The said notice specifically provides that age relaxation shall be given to departmental candidates with at least 03 years of continuous service in Government of NCT of Delhi / its local and autonomous bodies.

8.

MCD is a local body of Government of NCT of Delhi. hence, there is no substance in the argument of learned counsel representing the Petitioners that Respondent was entitled to age relaxation only in the recruitment carried out by the MCD.

9.

Learned counsel representing the Petitioners also relies upon the judgment passed by the Hon'ble Supreme Court of India in the case of Delhi Subordinate Services Selection Board & Anr. v. SeemaKapoor: Civil Appeal No. 4461 of 2021 decided on 22.07.2021.

10.

In the aforesaid case, the question arose whether the Respondent, who was serving as Teacher (Primary) in South Delhi Municipal Corporation, fell within the definition of departmental candidate or not.

11.

The relevant clause for grant of age relaxation in the aforesaid case reads as under:

"Age Limit: Below 36 years & relaxable in case of Govt. Servant and departmental candidates upto 05 years in accordance with the instructions or orders issued by the Central Government. This post is identified as suitable for OH/VH persons only as per the Requisition of the User Department."

12.

It is evident that the Hon'ble Supreme Court of India has interpreted the clause which did not include employees of the local /autonomous bodies. However, in the present case, Clause 6 specifically includes employees of local / autonomous bodies of the Government under category of departmental candidates.

13.

Hence, the judgment relied upon by the learned counsel representing the Petitioners is distinguishable.

14.

Consequently, finding no merit, the present Writ Petition along with the pending application is dismissed.”