Umesh Kumar Tiwari vs M.C.D. And Ors.
2007 Latest Caselaw 634 Del

JUDGMENT

Hima Kohli, J.

1. The petitioner has approached this Court by way of the present writ petition and sought directions to the respondents to regularize the petitioner in the post of Assistant Teacher (Primary), MCD with effect from 23rd August, 2004, with full benefits of pay and seniority. He has also sought grant of pay scale of Rs. 4500-7000/- with effect from 23rd August, 2004, for the period he has worked with the respondent No. 3, or in the alternative, directions to the respondents to grant benefit of age relaxation to the petitioner for the period he has worked in the MCD as a teacher, i.e. with effect from 23rd August, 2004 and to publish the result of the petitioner and to grant him appointment to the post of Assistant Teacher (Primary) MCD if otherwise found eligible in the recruitment process initiated under advertisement No. 10/2005 published by the Respondent MCD in January 2005.

2. The undisputed facts of the case are that on 23.8.2004, the petitioner was appointed as a teacher in the MCD on a contract basis, in the consolidated pay of Rs. 5,000/-, for teaching in primary schools of the MCD for a period of six months or till the select list was received from respondent No. 3/DSSSB, whichever was earlier. At the time of appointment, the age of the petitioner was 31 years 8 months. The contract of the petitioner was renewed from time to time and was valid till 24th December, 2005. In January, 2005, the respondents issued an advertisement bearing No. 10/2005 in the newspapers calling for applications for appointment to 1813 posts of Assistant Teacher (Primary) MCD. The relevant clauses of the said advertisement are reproduced hereinbelow:

0347. Assistant Teacher (Primary) 1813-[UR-990, SC-294, OBC-529, including ExS-208, PH(O)-31, LV-32]

Essential: (A) (i) Higher Secondary pass of a recognised Board/University with an elective subject in the required language at the Matric level. (ii) 2 years Teacher's Training certificate from a recognised institution. OR (B) (i) Intermediate or equivalent from a recognised Board/University with an elective subject in the required language at the Matric level. (ii) One year Teacher's Training certificate from a recognised Institution. Note: (a) Required language is Hindi at Matric or higher level. (b) Candidates possessing B.EI.Ed. Degree are eligible. Pay scale: 4500-7000, Age: 32 years for Male & 42 years for Female.

3. Age relaxation: Candidates belonging to SC are eligible for age relaxation for 5 years and candidates belonging to OBC for 3 years. Candidates belonging to categories such as Ex.-Servicemen, Govt.Servants, PH/Widow etc. are eligible for age relaxation as per the orders of the Govt.of India in force. Applicants claiming age relaxation should enclose the necessary documents in support of such claim.

3. The petitioner responded to the said advertisement and applied for appointment to the post of Assistant Teacher (Primary), MCD. In the said application, the petitioner claimed age relaxation on the ground that he was employed with the MCD since 23rd August, 2004 and at the time of his initial appointment, he was less than 34 years of age.

4. It is claimed by the petitioner that while he successfully cleared the written examination as a general category candidate on 24th April, 2005 and was called upon by respondent No. 3/DSSSB vide letter dated 29th September, 2005 to appear before it and produce his testimonials, which the petitioner did, the respondents declared the results of about 600 unreserved category posts in which the name of the petitioner did not figure. It is averred in the writ petition that the result of the petitioner was withheld for the reason that he was over-age and not entitled to the benefit of age relaxation. As a result, the petitioner preferred the present writ petition.

5. Learned Counsel for the petitioner, in the course of arguments, submitted that at the time when the advertisement was inserted in the newspapers by the respondents i.e. in January, 2005, the petitioner was 33 years 1 month old whereas the required age on the said date was 32 years. It was submitted that having been appointed on contractual basis by the respondents with effect from 23rd August, 2004, the petitioner was entitled to the benefit of age relaxation, particularly since he was working on the same post for which applications were invited by the respondents through the advertisement. Though the reliefs prayed for in the writ petition were for regularizing the petitioner to the post of Assistant Teacher (Primary), MCD as also for grant of pay scale of Rs. 4500-7000/- to the petitioner from the date of his contractual appointment i.e. 23rd August, 2004, during the course of arguments, learned Counsel for the petitioner confined himself to the relief for grant of benefit of age relaxation to the petitioner for the period he had worked in the MCD as Assistant Teacher (Primary). In support of his contention, learned Counsel for the petitioner placed reliance on the following judgments:

(i) Government of National Capital Territory of Delhi and Ors. v. Dr. V.S. Chauhan 1998 VI AD (DELHI) 81.

(ii) Government of NCT of Delhi and Anr. v. Shallu Sharma and Ors. 2000 (3) All India Service Law Journal 189.

(iii) WP(C) No. 8423/2006 entitled Parvez Azhar v. Anglo Arabic Sr. Sec. School decided on 15th May, 2006.

6. Learned Counsels for the respondents, however, disputed the contention of the petitioner for claiming age relaxation and submitted that the advertisement is very clear and unequivocal. They submitted that the petitioner is neither a Government servant, nor does he fall in any of the other categories as specified in the advertisement so as to claim relaxation of age limit and thus he is not entitled for any age relaxation, as the eligibility criteria cannot be modified for the petitioner alone.

7. It was contended by the learned Counsels for the respondents that the post of Assistant Teacher (Primary) is a category `C' post and, therefore, the provision of Section 92(A) of the DMC Act mandates the respondent No. 1/MCD to send requisition for appointment to the said post to respondent No. 3/DSSSB and that respondent No. 3/DSSSB makes the recruitment through an open written examination, subject to the candidates fulfillling the basic eligibility conditions and recruitment regulations as prescribed by the National Council of Teacher Education. Upon receipt of the select list of Assistant Teachers (Primary) from respondent No. 3/DSSSB, respondent No. 1 posts them in various schools.

8. In the present case, Counsel for respondent No. 1 stated that MCD had forwarded the requisition for direct appointment of regular teachers to respondent No. 3/DSSSB from time to time from July, 2001 to December, 2004 and that the respondent No. 3 had from time to time, such as in April, 2001, October, 2002, April, 2004 and April, 2005, conducted examinations for filling up the said vacancies. It was submitted that as the respondent No. 3/DSSSB was unable to complete the recruitment process and make available the select list , as per the requisition forwarded by respondent No. 1 from time to time, to tide over the emergent situation and to avoid disruption of teaching activities in the schools, respondent No. 1 decided to engage some teachers on a purely contractual basis, as a temporary measure and a stop-gap arrangement till the selection as per the rules was completed by respondent No. 3. It was in these facts and circumstances that the petitioner and many others were given contractual appointment.

9. Counsels for the respondents drew the attention of the Court to the letter of appointment, wherein it was specifically stipulated that the said appointment was for a fixed period or till the selection list was received from respondent No. 3/DSSSB, whichever was earlier. Thus it was submitted that the petitioner accepted a contractual appointment with open eyes and he knew that the appointment was purely temporary or till such time that select list was received from respondent No. 3/DSSSB, whichever was earlier. Thus the petitioner cannot claim age relaxation or modification of the eligibility criteria on the basis of prior contractual work in the MCD as per the rules and eligibility as prescribed by respondent No. 3/DSSSB. It was urged that if the petitioner was really interested in availing the job, he should have applied when the vacancies were advertised by respondent No. 3/DSSSB on various dates right from the year 2001 to 2005, which he did not do for reasons best known to him and thus he cannot claim to seek age relaxation on the ground of having worked on contractual basis. In support of this contention, the learned Counsel has placed reliance on the following judgments:

(i) Union Public Service Commission v. Girish Jayanti Lal Vaghela and Ors. 2006 II AD(SC) 261.

(ii) Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs and Pharmaceuticals Ltd. 2007 (112) FLR 474

(iii) WP(C) No. 5868/2006 entitled Ajmal Saeed and Ors. v. MCD and Anr. decided on 4th May, 2006.

10. Lastly, it was submitted by Respondents that the petitioner has not approached this Court with clean hands as he has failed to reveal that he had filed an identical writ petition on the same facts and averments impleading therein the same respondents as in the present case and claiming the same relief of age relaxation against respondent No. 3/DSSSB which petition was dismissed by this Court on 29th April, 2005.

11. I have heard the rival contentions of the learned Counsels for the parties. I have also perused the records.

12. In the present case, the advertisement which is the subject matter of the writ petition unambiguously lists the circumstances in which a candidate can claim age relaxation. As per the said advertisement, age relaxation was permissible to candidates belonging to SC category (5 years), OBC category (3 years), and categories such as Ex-servicemen, Govt.Servants, PH/Widow etc. (as per the orders of the Government of India in force). In the said advertisement, it was stated that such of the applicants who claim age relaxation should enclose the necessary documents in support of such a claim. Further details of the age relaxation of the said advertisement with regard to the recruitment process for the candidates, as enclosed by the petitioner with the writ petition, pertaining to Government Servants are as below:

4. Age relaxation for Government Servants:

up to 4 years for Government Servants (10 years for candidates belonging to SC/ST and 8 years for persons belonging to OBC) or in accordance with the instructions/orders issued by the Government of India from time to time. Candidates claiming to belong to the category of Central/State Government servants and thus seeking age relaxation under this provision should produce a certificate from his employer to the effect that he is a Government servant as on the opening date of this announcement for the post. No candidate will be allowed age relaxation under this provision unless he produces the requisite certificate along with his application for the recruitment to the post.

Note. The departmental candidates with 3 years of continuous services for recruitment to the posts which are in the same line or allied cadre, the relaxation will be provided as per instructions/orders issued by Government of India from time to time with further relaxation of 5 year in age for SC/ST candidates and 3 years for OBC candidates.

13. Since the petitioner does not fall in any of the categories specified in the aforesaid advertisement as he neither belongs to SC or PH/Widow, the only other category left is that of Government servant. Respondent No. 3 stipulated in the advertisement that candidates claiming to be belonging to the category of Central/State Government servants and thus seeking age relaxation under the provision, should produce a certificate from his employer to the effect that he is a Government servant as on the opening date of the announcement for the post.

14. The contract of the petitioner is also unambiguous and unequivocal inasmuch as it clearly states that the appointment of the petitioner was purely contractual, for a period of six months or till the select list was received from respondent No. 3/DSSSB, whichever was earlier and even the extensions granted to the petitioner from time to time were also on the same basis. Thus it is evident that the contract of the petitioner being purely temporary in nature, was liable to cease by efflux of time.

15. The argument raised by the learned Counsel for the petitioner to the effect that having appointed the petitioner on contractual basis and having extended the said appointment from time to time, knowing very well that there were vacancies available with respondent No. 1 and the respondents having failed to take any steps to fill up the vacancies, while permitting the petitioner to continue to work on contractual basis, entitles the petitioner for some age relaxation for applying for the post of Assistant Teacher (Primary) subject to fulfillling the other eligibility criteria, is untenable in view of the fact that the respondent No. 1 did not keep the petitioner in the dark at any stage. The terms and conditions of the appointment letter are very clear and unambiguous. A perusal of the counter affidavit filed by respondent No. 1 also makes it amply clear that steps were taken by respondent No. 1 to approach the respondent No. 3/DSSSB regarding appointment to the post of Assistant Teacher (Primary), right from the year 2001 onwards and in fact pursuant thereto respondent No. 3/DSSSB had conducted examinations from time to time. Thus nothing prevented the petitioner from applying pursuant to the said advertisement so as to be considered for selection to the post of Assistant Teacher (Primary) subject to fulfillling the eligibility criteria.

16. Reliance placed by the counsel for the petitioner on the judgment dated 15th May, 2006 rendered by a Single Judge of this Court in WP(C) No. 8423/2006 is misplaced. Facts of the said case reveal that in the said case the court was of the view that vacancies in the post in question existed at a time when the petitioner was working in the respondent institution, but no steps were taken for direct recruitment by the respondent therein in accordance with law. In such circumstances, it was held that the distinction sought to be made therein between adhoc and regular employees with regard to age relaxation was specious and artificial. In the present case, however the records reflect that all efforts were made by respondent No. 1 to fill up the posts by sending requisitions for appointment to respondent No. 3/DSSSB who was empowered to make the appointment in terms of Section 92 (A) of the DMC Act.

17. Similarly, the judgment dated 4th May, 2006 rendered by a Single Judge of this Court in WP(C) No. 5868/2006 and relied upon by the respondent is also not applicable to the facts of the present case as in the said writ petition, the petitioner had claimed relief of regularization in the post of Primary Teacher with the MCD as also the relief of regular pay scales and benefits prescribed by the Rules and Regulations. A perusal of the records of the said file called for by this Court shows that there was no advertisement issued at that time by the respondent MCD for filling up the post of Primary Teacher in the department and that the grievance of the petitioners therein was that they were entitled to receive pay scales similar to the scale of regularly appointed teachers, as also the relief of regularization, and lastly for directions to the MCD to explain the scheme of preference to be provided to the petitioners therein during the forthcoming advertisements for appointment of regular teachers. Thus it is clear that there was no advertisement issued by respondent No. 3/DSSSB at the relevant time when the learned Single Judge declined to issue directions to the respondent to grant any age relaxation to the petitioners. The only order passed therein was that it would be open to the petitioners to participate in the regular process of recruitment, provided they fulfillled the eligibility conditions and applied for the posts, and in which case, liberty was given to the respondent/MCD to consider as to whether it wanted to give weightage for the contractual service of the petitioners and experience gained by them, in accordance with law.

18. Finally, coming to the question of whether a person working on short term contract basis can be granted age relaxation on the strength of being said to be a Government service, the said issue is no longer res integra as in the judgment rendered in the case of Girish Jayanti Lal Vaghela (supra), the Supreme Court discussed at length the question as to who can be said to be holder of a civil post under the Government by referring to a series of judgments rendered on the said issue right from the year 1967 till date, and held as below:

Para 15: ... It, therefore, follows that employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the contract of the two parties but by statutory rules which are framed by the Government in exercise of power conferred by Article 309 of the Constitution and the service rules can be unilaterally altered by the rule making authority, namely, the Government.

19. After discussing the entire case law on the subject, it was observed by the Supreme Court in the facts of the said case that respondent No. 1 therein could not be said to be a Government servant as he was working on a contract basis and, was therefore not entitled to any age relaxation in the upper age limit. Holding so, the view taken by the High Court directing the petitioner therein to issue an age relaxation certificate to respondent No. 1, was set aside.

20. Even in the present case, the public advertisement was issued by the body authorised under the relevant Rules to do so. It is not a case where the petitioner was appointed on contractual basis even after issuance of the said public advertisement. It is also not a case where the petitioner was kept in the dark while being appointed on a contractual post. In fact the records reflect that while various advertisements were issued from time to time, the petitioner apparently did not apply to the respondent for being considered to be appointed on a permanent basis for reasons best known to him. In these circumstances, the petitioner cannot claim the privilege of seeking age relaxation for the purpose of being held eligible to apply under the advertisement issued by the respondents, the petitioner not being a Government servant and not falling in any of the other categories where age relaxation was permitted.

21. In this view of the matter, the writ petition and the pending application are dismissed being devoid of merits. Parties are left to bear their own costs.