Mujahidul Islam vs Govt. Of Nct Of Delhi
2009 Latest Caselaw 2210 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     WP (C) No.9512/2007


%                              Judgment delivered on: 22.05.2009

Mujahidul Islam                                ...... Petitioner
                           Through: Mr. Javed Ahmad, Advocate

                      versus

Govt. of NCT of Delhi                     ..... Respondent

                           Through: Mr. Atyab Siddiqui, Advocate for
                           R-4 and R-5.
                           Mr. L.K. Garg, Advocate for R-1 to R-3.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may             Yes
       be allowed to see the judgment?

2.     To be referred to Reporter or not?                    Yes

3.     Whether the judgment should be reported               Yes
       in the Digest?

KAILASH GAMBHIR, J. (Oral)

*

1. By way of this petition filed under Article 226 of the

Constitution of India, the petitioner seeks directions to the

respondents to confirm/regularize the petitioner's appointment

on the post of TGT (Maths). Petitioner also seeks directions to

the respondent Nos. 1 to 3 to release necessary grant-in-aid for

the salary of the petitioner payable with effect from 11.12.2006

onwards. Directions are also sought by the petitioner against

the respondents for illegally terminating his services and

cancelling his appointment on the ground of overage.

2. Mr. Javed Ahmad, counsel for the petitioner submits

that petitioner had applied for the post of TGT (Maths) against

the reserved vacancies of OBC pursuant to the advertisement

dated 29.7.2006. Counsel further submits that the petitioner

was selected on the said post and pursuant to his selection vide

appointment letter dated 9.12.2006 he was given the

appointment on the said post. Pursuant to his appointment , the

petitioner joined the respondent No.5 and started performing his

job as a teacher. The appointment of the petitioner was also

approved by Director of Education as per the mandate of Rule

98 (4) of Delhi School Education Act 1973. Counsel also submits

that the respondent No. 2/Director of Education failed to release

the 95% grant-in-aid towards the salary of the petitioner on the

ground that the petitioner was overage as on the cut off date laid

down in the advertisement. The matter was taken up by the

respondent No.5 school for the release of grant-in-aid in respect

of salary of the petitioner and also for granting relaxation in

terms of the advertisement and after granting the said relaxation

to regularize the appointment of the petitioner in the category of

OBC on the said post of TGT (Maths). Counsel for the petitioner

further submits that without acceding to the request of the

petitioner and that of the school the respondent No.2 in a most

illegal manner dismissed the petitioner from his service with

immediate effect through their letter dated 25.8.2007 declining

the request of age relaxation. Counsel thus submits that the

said decision of the respondent No. 2 is ex-facie illegal as the

respondent has not considered the fact that the petitioner had

applied for appointment on the said post of TGT (Maths) under

the OBC category and for which the petitioner is entitled to

relaxation in age for three years. Counsel thus submits that the

petitioner who was born on 10.4.1973 is not overage if the said

relaxation of three years is granted to him in terms of the said

advertisement.

3. Mr. L.K. Garg, counsel appearing for respondent

Nos. 1 to 3 submits that the directions were given for

dismissing the petitioner from his service only on the ground

that he was overage on the date of submission of his application.

Counsel further submits that when this fact of the petitioner

being overage, was noticed, the matter was decided by the

Competent Authority to dispense with the service of the

petitioner and accordingly decision was conveyed by the

respondent No. 3 to the respondent No.5/school.

4. Mr. Atyab Siddiqui, counsel apperiang for R-4 and R-

5 school, on the other hand, states that the decision of the

respondent No.2 is absolutely illegal on the very face of it as at

the time of submitting the application, the petitioner had applied

under the category of OBC and the supporting documents were

filed by him in which date of birth disclosed by the applicant

was 10.4.1973. Counsel further submits that the petitioner had

applied in the OBC category and therefore, in terms of the

recruitment rules notified through the advertisement, he was

entitled for relaxation of three years of age and if the said

relaxation is taken into consideration then he was not overage.

Counsel thus submits that the respondent No.2 failed to take

into consideration the said fact and in utter haste passed the

order of dismissal and also did not release the grant-in-aid for

payment of his salary. Counsel for the respondent school further

submitted that even the petitioner was entitled to benefit of his

adhoc services put in by him with some other school w.e.f.

1.4.2003 to 9.12.2006 which period too was ignored by the

respondent No.2 for reckoning the said period to consider his

eligibility to meet the age requirements in terms of the

advertisement.

5. I have heard ld. Counsel for the parties at

considerable length and gone through the record.

6. It is not in dispute that the petitioner had applied for

appointment on the post of TGT (Maths) in the OBC category.

Once the said fact has not been disputed, then, clearly the

petitioner fulfils the age criteria after the relaxation of three

years in age granted to him in terms of the said advertisement

in question. The said fact of entitlement for relaxation of age

was not considered by the respondent No.2 and without

considering the said fact neither the salary was released by the

respondent No.2 nor his appointment, was approved. Strangly,

rather acting contrary to the said terms and conditions of the

advertisement respondent No.2 had taken a decision to dispense

the petitioner from his service. The said order of the respondent

No.2 is ex-facie illegal and is not sustainable in the eyes of law.

The said order was passed by the respondent No.2 but the said

order was not received by the petitioner prior to the filing of the

present petition. Be that as it may, the petitioner was appointed

on the said post after he was found fit by the Selection

Committee. Not only this, the petitioner since after his

appointment had started discharging his duties on the said post

to the satisfaction of the school authorities. No material has

been placed on record by the respondent No. 2 as on what basis

the said decision was taken to find the petitioner overage as on

the cut off date stipulated in the advertisement. Once the

petitioner had applied in the category of OBC then he was

entitled to relaxation of three years in his age and if said three

years relaxation is taken into consideration, then, certainly he

was not overage on the cut off date. The decision taken by

respondent No. 2 is clearly arbitrary and without any material to

support the same. The said illegal decision of respondent No.2

has rendered the petitioner out of service w.e.f. 5.12.2007

besides depriving him from his salary in the absence of release

of grant-in-aid from respondent no.2. Taking into consideration

the aforesaid facts let the respondent No.5 school restore the

services of the petitioner on the said post within one week from

the date of this order so as to enable the petitioner to rejoin on

his said duties. Respondent No.2 is also directed to release the

entire arrears of salary within a period of one month from the

date of this order to the extent of 95% of the grant-in-aid and

the balance amount of 5% to be paid by the school within the

said period. For causing unnecessary harassment to the

petitioner and depriving him from the job during the said period

and also from his salary, costs of Rs.15,000/- is imposed upon

the respondent No.2 to be paid to the petitioner within one

month.

7. The petition is allowed with the above directions.

May 22, 2009                             KAILASH GAMBHIR, J.
pkv