Commissoner, Mcd vs Shashi And Others
2009 Latest Caselaw 3594 Del

*         HIGH COURT OF DELHI : NEW DELHI


+         Writ Petition (Civil) No. 11331 of 2009

                            Judgment reserved on: September 01, 2009

%                           Judgment delivered on: September 07, 2009


     The Commissioner
     Municipal Corporation of Delhi
     Town Hall
     Delhi-110006.                                   ...Petitioner

                       Through Mr.Gaurang Kanth with Ms.Biji
                               Rajesh, Advs.

                       Versus

1.   Shashi
     W/o Sh. Rakesh Kumar Saini
     R/0 88, Saini Enclave
     Delhi-110092.

2.   The Chief Secretary
     Govt. of NCT of Delhi, Delhi.

3.   Sh. A.K. Guha, IAS
     Director (P.E)
     Deptt. of Education, HQ's
     Kashmere Gate
     Delhi-110006.

4.   Mr. Mahesh Chand Sharma
     President
     Education Committee
     (MCD), Deptt. of Education, HQ's
     Kashmere Gate
     Delhi-110006.

5.   Mr. B.C. Pandey
     Asstt. Commissioner of Education (MCD)
     Deptt. of Education, HQ's
     Kashmere Gate
     Delhi-110006.                                   ...Respondents

                       Through Mr.Devendra Singh, Adv. for Resp.1
                               Ms.Zubeda Begum, Adv. for Resp.2

WP (C) No.11331/2009                                        Page 1 of 10
 Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK

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

2. To be referred to Reporter or not?                             Yes

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

MADAN B. LOKUR, J.

The issue raised in this case pertains to age discrimination.

In our opinion, the Petitioner has impermissibly discriminated against

Respondent No.1 on the basis of her age and has thereby unreasonably

denied employment to her.

2. The Petitioners had taken out an advertisement in 1996 for

the appointment of primary teachers and nursery teachers. We are

concerned with those applicants for the posts of primary teachers who

belong to the OBC category.

3. In terms of the advertisement the age limit for recruitment as

on 31st July, 1996 was 18 to 30 years generally with exceptions for lady

candidates, SC/ST candidates, physically handicapped candidates, etc.

4. In response to the advertisement, the Petitioner appears to

have received an extremely large number of applications from the

general public. With a view to reduce the number, the Petitioner

introduced short-listing criteria which included, inter alia, short-listing

on the basis of the age of the applicant. It is this criterion on the basis of

which Respondent No.1 became disentitled to employment and it is only

this criterion that we are concerned with.

5. In so far as the applicability of the age criterion is concerned,

the Petitioner decided to weed out those OBC candidates whose date of

birth was later than 5th June, 1968. The effect of this was that even

though the advertisement made eligible all candidates between the age

of 18 and 30 years, by introducing the age criterion, the Petitioner

eliminated all applicants except those whose age was between 28 and 30

years. Consequently, all the applicants between the age of 18 to 27

years were eliminated from selection.

6. One significant aspect in this case is that there was no test or

interview or selection process conceived by the Petitioner and the

procedure was that there would be a verification of the credentials of the

candidates and those who were found to be eligible would be given the

appointment. As a result, those candidates who fell within the age

group of 28 to 30 years automatically became entitled to appointment

(subject to their fulfilling the other conditions) while those below the

age of 28 years were straight away eliminated, even if they were

extremely competent.

7. According to Respondent No.1 who was an eliminated

candidate, there was no rational basis for this classification and,

therefore, she challenged the action taken by the Petitioner by filing a

writ petition in this Court. Due to a notification having been issued

under the Administrative Tribunals Act, 1985 the writ petition

automatically stood transferred to the Tribunal, which allowed the writ

petition. Feeling aggrieved, the Commissioner, Municipal Corporation

of Delhi has preferred this writ petition.

8. The question that has arisen is whether the Petitioner can

discriminate against equally placed candidates merely on the basis of

age. Our answer to this is in the negative.

9. Article 14 of the Constitution provides for equal treatment

before the law and equal protection of the laws to all persons within the

territory of India and Article 16 (1) of the Constitution provides for

equality of opportunity for all citizens in matters relating to employment

or appointment to any office under the State. Yet, discrimination

between two equally placed persons is permissible if there is a

reasonable classification and that reasonable classification is based on

an intelligible differentia. Article 16 (2) of the Constitution provides

that no citizen shall be discriminated against on grounds only of

religion, race, caste, sex, descent, place of birth, residence or any of

them. There is no specific prohibition against discrimination on the

basis of age. In other words, if there is age discrimination, the person

discriminated against is entitled to rely only on Article 14 of the

Constitution and demand equal treatment, while the State would have to

show that the classification is reasonable and is based on intelligible

differentia.

10. As far as the present case is concerned, Respondent No.1 has

clearly made out a case of age discrimination in as much as the admitted

position is that even though the advertisement for recruitment related to

all eligible persons between age group of 18 to 30 years, the Petitioner

sought to limit the application of the advertisement to only those

persons who were within the age group of 28 to 30 years.

11. The reason given by the Petitioner for the age discrimination

is two-fold, namely, that the number of applications received was

overwhelming and, therefore, some short-listing criteria had to be

adopted and, secondly, persons who are senior in age would lose an

opportunity of employment if they were not selected while those who

were younger could avail of similar opportunities later in life. We are of

the opinion that neither of these reasons put forth by the Petitioner falls

within the acceptable limits of Article 14 of the Constitution.

12. Subject to constitutionally permissible reservations, every

endeavour must be made by the State to employ or engage the most

qualified or the most meritorious persons. In doing so, the State may fix

short-listing criteria on the basis of educational qualifications or

experience or marks obtained in an examination or an interview or any

other criterion which enables the most competent person to be selected.

Unfortunately, age has nothing to do either with merit or competence.

Wisdom may be an attribute of age, but not merit or competence.

13. There is not even an iota of material to suggest, nor indeed

has anything been pointed out by learned counsel for the Petitioner, that

merely because an applicant falls within the age group of 28 to 30 years

he is better qualified as a teacher than a person falling in the age group

of 18 to 27 years. It is not the case of the Petitioner that persons in the

age group of 28 to 30 years are either better qualified educationally or

have more experience or are in any manner more meritorious or

competent than the applicants falling within the age group of 18 to 27

years solely because of their age. It seems to us that the Petitioner has

literally picked the age group of 28 to 30 years out of the hat (as it were)

without any reference to any logical or empirical basis.

14. Learned counsel for the Petitioner sought to justify the action

of the Petitioner on the basis of four decisions. In our opinion, none of

these decisions is applicable to the present case.

15. The first decision cited by learned counsel for the Petitioner

is Ramangouda Hanumantha Patil v. High Court of Karnataka, ILR

1996 KAR 1730. In this case, short-listing was resorted to for

appointment of District Judges directly from the Bar. The Karnataka

High Court approved the concept of short-listing (in principle, even we

do not say that short-listing is impermissible) but the High Court went

on to add that there must be a clear, rational and reasonable nexus

between the criteria prescribed and the object sought to be achieved, that

is, selection of the best candidate. In that case, the short-listing criteria

was to the effect that the candidates who were not paying income tax

(excluding women and SC/ST candidates) and who have not practiced

as lawyers for a period of 10 years should not be called for an interview

for appointment as District Judges. The Court noted that prescription of

the income criterion may result in a good candidate being ignored in

some exceptional cases but it is not possible to provide for all

contingencies. Mere failure to provide for all contingencies would not

make the criterion adopted either unreasonable or irrational. The High

Court suggested that the matter may be looked at from another angle -

the question was not whether a better alternative criteria should be

employed or not but whether the criteria employed are reasonable and

rational. Answering this, the High Court held that the two criteria fixed

for calling candidates for an interview if applied together would ensure

that only persons with experience and knowledge in the field of law are

called for an interview.

16. Insofar as the present case is concerned, selecting only those

candidates who fall within the age group of 28 to 30 years would

necessarily mean that persons with better educational qualifications,

experience and knowledge might not be appointed only because of their

age and for no other reason.

17. Learned counsel for the Petitioner also referred to The State

of Haryana v. Subash Chander Marwaha and Others, (1974) 3 SCC

220. In this case, the short-listing criterion fixed for appointments was a

score of not less than 55% marks in the competitive examination. The

Supreme Court found nothing wrong in the fixation of this criterion

since it was open to the Government to fix a score which is much higher

than the minimum score required for mere eligibility on the ground that

a higher score would result in maintenance of higher standards of

competence.

18. In Madhya Pradesh Public Service Commission v. Navnit

Kumar Potdar and Another, (1994) 6 SCC 293 the Supreme Court held

that a Selection Board can regulate its procedure for selecting the best

candidates from amongst the applicants. Reference was made to

Subash Chander Marwaha and it was then held that the short-listing

criterion for calling candidates for interview for appointment as

Presiding Officers to the Labour Courts did not amount to altering or

changing the prescribed criterion in the statutory rules but it was only a

part of the selection process. In that case, the short-listing criteria raised

the bar from 5 year's practice to 7 ½ years practice and the Supreme

Court did not find this to be either arbitrary or unreasonable.

19. Finally, learned counsel referred to The State of West

Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 wherein the Constitution

Bench laid down that classification must be based on some real and

substantial distinction bearing a just and reasonable relation to the

object sought to be attained and cannot be made arbitrarily and without

any substantial basis. It was observed that classification thus means

segregation in classes which have a systematic relation, usually found in

common properties and characteristics and does not mean herding

together of certain persons and classes arbitrarily. In this context, the

Constitution Bench observed that the legislature may fix the age at

which persons shall be deemed competent to contract between

themselves.

20. Obviously, there can be no quarrel with the proposition of

law laid down by the Supreme Court and in our daily life we find such

classifications being made in several other instances such as the voting

age or the age of juvenility or the age of superannuation etc. In these

cases, there is some rational basis for the age criterion being laid down

but in the present case, merely "herding together" applicants on the

basis of their age group, that is, 28 to 30 years cannot stand judicial

scrutiny inasmuch as the age group selected has no relevance to merit,

competence, knowledge or experience vis-à-vis candidates falling

outside that age group. Also, no overriding public interest has been

shown to us for making the classification on the basis only of age.

21. For all these reasons we find that the age discrimination

carried out by the Petitioner cannot be sustained being arbitrary and

contrary to the principles of Article 14 of the Constitution.

22. There is no merit in the writ petition. It is dismissed in

limine.

                                              MADAN B. LOKUR, J




September 07, 2009                            A.K. PATHAK, J
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