Shruti vs Govt. Of NCT Of Delhi And Ors.

Nita Chowdhury, Member (A)

By filing this OA, the applicant is seeking the following reliefs:-

"(i) To quash and set aside the impugned order dated 16.04.2015 (A-1) and direct the respondents to consider the applicant for appointment to the post of Teacher (Primary) against Post Code 70/09 with all consequential benefits.

(ii) To declare the action of respondents in not granting age relaxation to the applicant for the period she has worked as Primary Teacher on contract basis in erstwhile Municipal Corporation of Delhi as illegal and unjustified and direct the respondents to grant age relaxation to the applicant for the period she has worked on contract basis in the Corporation itself.

(iii) to direct the respondents to issue offer of appointment to the applicant as per her selection as Teacher (Primary) by granting age relaxation as permissible under the rules for contract/ employees of autonomous bodies/ Govt. Employees etc.

(iv) To allow the OA with exemplary cost.

(v) To pass such other and further orders which their lordships of this Hon‟ble Tribunal deem fit and proper in the existing facts and circumstances of the case."

Brief facts of the case are that the applicant who had earlier worked as contract Primary/Nursery Teacher in erstwhile Municipal Corporation of Delhi pursuant to advertisement issued in 2003, for six months i.e., during the period from 1.9.2003 to 29.2.2004 initially which contract was renewed from time to time for different spells and break and last such contract was dated 29.12.2008 vide which he was engaged as such on contract basis from 1.1.1009 to 31.3.2009. However, while serving with the Corporation, the applicant had also applied for appointment as Primary Teacher on regular basis in Kendriya Vidyalaya Sangathan (KVS). As she was found suitable for appointment as Assistant Teacher in KVS, she was issued offer of appointment on 14.1.2009 by the KVS and pursuant to which, he joined her services as per the said appointment letter.

2.1 After joining services as Assistant Teacher in KVS, the applicant also applied for appointment as Assistant Teacher (Primary) in erstwhile Municipal Corporation in pursuance to advertisement issued in 2009. In the said applicant, applicant had mentioned about her contractual service in MCD and regular service in KVS.

2.2 The applicant was issued admit card in unreserved Govt. servant category and her Roll number is 07054360. Pursuant to the said admit card, she appeared in the examination on 2.2.2014 for the post of Teacher (Primary), Post Code No.70/09. The result of the said examination was declared by the respondents on 5.12.2014 in which the applicant was selected and recommended for appointment to the post in question as her name appears at serial No.66.

2.3 As there were number of contractual teachers who were appointed by the erstwhile Corporation to the post of Teacher (Primary), therefore, the Corporation had issued letter dated 25.11.2011 to give age relaxation to such teachers appointed on contractual basis in MCD. The applicant, who had also served on contract basis, was also required to be given age relaxation.

2.4 However, respondents did not grant age relaxation to the applicant as given to other contractual teachers and to the contrary, she was directed to submit the documents to meet the objections raised against her claim, i.e., status regarding Govt. employee required, vide Notice dated 23.2.2015.

2.5 The applicant has submitted the requisite documents but respondents have not cleared her case while notifying the final result in April 2015 and her name was included in the list of candidates whose candidature were rejected on different grounds.

2.6 Being aggrieved by the aforesaid impugned order dated 16.4.2015, the applicant has filed the instant OA seeking the reliefs as quoted above.

Pursuant to notice issued to the respondents, respondent no.1 and 2 have filed their reply in which they stated that DSSSB advertised 4500 vacancies of Teacher (Primary), Post Code 70/09 in MCD.

3.1 The Board conducted the examination for the said post code on 2.2.2014 and the mark list was declared on 8.7.2014 on the basis of eligibility criteria of user department. The result of 2676 candidates was declared on 5.12.2014 and 502 candidates was declared on 16.4.2015.

3.2 They further stated that MCD sent a list of 347 contractual teachers duly approved by Lt. Governor for age relaxation. It is further stated that as per DOP&T guidelines, the candidate who having three years continuous service will be entitled for age relaxation upto 40 years age whereas the applicant did not complete 3 years continuous Govt. service as on cut-off date, i.e., 15.1.2010.

3.3 It is also stated that all candidates were provisionally allowed to appear in the examination and the candidature of any candidate may be rejected, if found not eligible for any reason at any stage. Vide Notice dated 5.12.2014, the case of the applicant was kept pending with remarks "status regarding Govt. Employee required"and the MDC sent a list of

347 contractual teachers duly approved by Lt. Governor for age relaxation and the name of the applicant was not in the said list.

3.4 As the continuous Govt. service of the applicant is less than 3 years, she could not be treated as Govt. employee and her candidature was rejected as "overage"vide Office Order No.368 dated 16.4.2015 which is impugned in this OA.

Respondent No.4 has also filed reply wherein it is stated that the applicant was not MCD employee at the time of submitting application on the last date of submission of application form i.e. 15.1.2010, therefore, she is not entitled for age relaxation as she has worked in MCD.

Respondent No.3 has also filed reply wherein it is stated that after trifurcation of MCD the Education Department - South Delhi Municipal Corporation has been entrusted with the work of recruitment of teachers and prepare/fixing seniority of teachers for all the three Corporations. As such all the reliefs claimed by the applicant in the present OA pertain to respondent No.2, i.e., DSSSB & respondent No.4, i.e., South DMC and as such respondent no.3 is thus only a pro forma party in the present case.

The applicant has filed rejoinder to the counter replies filed by respondents no1. & 2 and respondent no.4 in which applicant reiterated the stand taken by her in the OA.

During the course of hearing, Shri M.K. Bhardwaj, learned counsel for the applicant submitted that respondents have acted in violation of Articles 14 and 16 of the Constitution of India, illegal, arbitrary and unjustified as they have not granted age relaxation to the applicant as had been given to other similarly placed contractual teachers when the Corporation itself vide letter dated 25.11.2011 granted age relaxation to the teachers working on contract basis in MCD.

7.1 Counsel further submitted that the respondents have treated the applicant differently as she had joined as Primary Teacher on regular basis in KVS which cannot be said to be justified because the applicant had also worked as contractual Teacher in the respondents Corporation and the decision of the Corporation dated 25.11.2011 is also applied in her case.

7.2 Counsel also submitted that respondents failed to consider that the applicant was appointed in KVS as per offer of appointment dated 14.1.2009, therefore, she was entitled for age relaxation being a Govt. employee pursuant to instructions issued by the DOP&T.

7.3 Counsel further submitted that once the respondents treated the candidature of the applicant as Govt. servant category as evident from admit card, how could different stand be taken at the time of consideration for appointment.

Shri Amit Anand, learned counsel for respondent nos. 1 and 2 submitted that benefit of age relaxation was given to departmental candidates as well as also to those who were working on contract basis in the Corporation with the approval of Lt. Governor, as a list of 347 contractual Teachers was sent. He further submitted that as per DOP&T guidelines, candidate having three years continuous service will be entitled for age relaxation upto 40 years age whereas the applicant did not complete 3 years continuous Govt. service as on cut-off date, i.e., 15.1.2010.

As the applicant is seeking age relaxation in this case, it is relevant to quote the DOP&T OM dated 30.1.1990 which reads as under:-

"No.15012/1/88-Estt. (D) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training New Delhi, dated the 30th January, 1990

OFFICE MEMORANDUM

Subject: Relaxation of Upper Age limit for Departmental candidates to Group "C"and "D"posts.

The undersigned is directed to say that this Departments O.M. dated 20th May, 1988 provides that departmental candidates may be allowed to compete alongwith candidates from open market for appointment to Group‟C"posts upto the age of 40 years in the case of general candidates and 45 years in the case of candidates belonging to Scheduled Castes and Scheduled Tribes subject to the usual condition that the Group "C"posts to which direct recruitment is being made are in the same line or allied cadres and that a relationship could be established that service rendered in the post will be useful for efficient discharge of the duties in other categories of posts. It has been decided to extend this concession for departmental candidates for appointment to Group "D"posts also subject to the same conditions.

It is also clarified that the age relaxation upto 40/45 years, as the case may be, for appointment to Group "C"and Group "D"post will be available only to those departmental candidates who have rendered at least 3 years continuous service under Government."

From the aforesaid OM and the subsequent OMs on the subject, it is quite clear that age relaxation upto 40/45 years, as the case may be, will be available only to those departmental candidates, who have rendered at least 3 years continuous service under Government. It is an admitted fact that the applicant was appointed as Assistant Teacher in KVS on 23.1.2009 and prior to that, she had worked on contract basis as Primary/Nursery Teacher in the respondent Corporation. Therefore, she cannot be permitted to claim the benefit of her earlier contractual service rendered in the respondent Corporation prior to appointment in KVS for the purpose of age relaxation by placing reliance of DOP&T OM. It is further relevant to mention that age relaxation in the case of contractual employees, who are/were actually in the strength of the respondent Corporation at the time of consideration of their candidatures for appointment to the post advertised, is admissible as held by the Apex Court in the case of Union Public Service Commission Vs. Dr. Jamuna Kurup and Ors. (2008 (11) SCC 10) and the same had been followed subsequently. However, in the present case, applicant was not an employee of the Respondent Corporation at the time when she applied for the post in question as she has been working with the KVS at the relevant point of time and the service rendered by the applicant from the date of her appointment in KVS as Assistant Teacher, i.e. 14.1.2009 till the date of last date of submission of the application for the said post, i.e., 15.1.2010 is less than three years, which is a pre condition for consideration of the case of the candidate for age relaxation as per the DOP&T OM supra. As such, the applicant cannot be given age relaxation on the basis of prior service rendered in respondent Corporation as she was not on the strength of the respondent Corporation at the time when the case of other contractual teachers was considered and sent for approval of the Lt. Governor. As such the respondents have rightly not sent the case of the applicant for age relaxation in the case of the applicant along with the other contractual teachers, who are/were on the strength of the respondent Corporation.

In view of the aforesaid reasons, this Court is unable to accept the aforesaid contentions of the learned counsel for the applicant.

In the result and for the foregoing reasons, this Court does not find any illegally and infirmity in the impugned Order and as such the present OA is dismissed. There shall be no order as to costs.