Delhi Subordinate Services ... vs Mrs.Suman Lata Sharma & Anr
2011 Latest Caselaw 1185 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) No.7416/2010

%                    Date of Decision: 28.02.2011

Delhi Subordinate Services Selection Board        ....Petitioner
                  Through Ms. Zubeda Begum with Ms.Sana Ansari,
                                        Advocates

                               Versus

Mrs.Suman Lata Sharma & Anr                      .... Respondents
                Through Mr. Sumit Kumar, Adv. for R-1.
                         Ms. Suparna Srivastava, Adv. for R-2.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.   Whether reporters of Local papers may be
     allowed to see the judgment? Yes
2.   To be referred to the reporter or not? No
3.   Whether the judgment should be reported in
     the Digest? No


 VEENA BIRBAL, J.

*

1. By way of this petition, petitioner i.e. Delhi Subordinate

Services Selection Board (in short `DSSSB') has prayed for quashing

of impugned order dated 8th July, 2010 passed by the Central

Administrative Tribunal, Principal Bench, New Delhi (hereinafter

referred to as `the Tribunal') passed in O.A. No. 498/2010 whereby

petitioner as well as MCD/respondent no.2 has been directed to offer

appointment to respondent no.1 within a period of three months from

the date of receipt of copy of the impugned order.

2. The relevant facts necessary for disposal of present petition are

as under:-

Respondent no.1 had qualified the Diploma in Elementary

Teacher Training Course (in short referred to as ETE course) in the

year 2007. Petitioner gave an advertisement in 2007 for the post of

Assistant Teacher (Primary) with post code 164/2007 wherein

respondent no.1 appeared in the examination but did not qualify.

Respondent no.1 could not have appeared in the next examination

because of change of eligibility condition regarding age. However, this

court vide its judgment dated 28th August, 2008 passed in WP(C)

7297/2007 and other batch of writ petitions titled as Sachin Gupta

& Others V. Delhi Subordinate Services Selection Board (DSSSB)

through its Chairman & Ors. (2008 IX AD (Delhi) 96), gave one

chance to all those who had qualified the ETE course in the year 2006

or 2007 or 2008.

During the pendency of the aforesaid writ petition, the office of

petitioner, as per requisition of respondent no.2/MCD issued an

advertisement under the post code of 016/2008 for the post of

Teacher (Primary). Respondent no.1 applied for the said post. The

office of petitioner issued roll number to her. Respondent no.1

appeared in the examination and qualified the first test and thereafter

qualified the test which was conducted on 16.11.2008 and thereupon

her performance was assessed of the descriptive examination which

was conducted on the same day. Respondent no.1 in all secured 117

marks in the examination. The last candidate in the unreserved

category who was selected and offered the post secured 114 marks

whereas respondent no.1 who also belongs to unreserved category

had secured more marks but was not given appointment. Thereafter

respondent no.1 applied under the Right to Information Act, 2005 for

knowing reasons for her non-appointment. Through communication

dated 28th October, 2009, respondent no.1 was informed that she had

already availed one chance in 2007 and for present examination, she

was over age and as such, her candidature had not been considered.

Respondent no.1 approached the Tribunal for getting the benefit of

judgment dated 28th August, 2008 passed in WP(C) 7297/2007 by

filing O.A. No. 498/2010. The said O.A. was allowed along with other

connected O.As i.e. O.A. No. 751/2010 and 1489/2010 vide

impugned order dated 08.07.2010. The challenge before this Court is

in respect of relief granted to respondent no.1.

The stand of the petitioner before the Tribunal was that as

respondent no.1 had already appeared for the Teacher (Primary)

MCD/Assistant Teacher (Primary), Dte of Edn under post code 164-

165/07 and could not qualify the same, therefore, respondent no.1 is

not entitled for another chance as per judgment of this court passed

in Sachin Gupta's case (supra). The stand of the petitioner before the

Tribunal was that the respondent no.1 was not entitled for second

chance in the examination as such she was not entitled for any relief.

The stand of respondent no.1 before the Tribunal was that after

the judgment of Sachin Gupta & Others V. Delhi Subordinate Services

Selection Board (DSSSB) through its Chairman & Ors. (supra), she

was entitled to get one chance. Her further stand was that in the year

2007 she appeared within her own rights as she was not overage by

then.

Vide impugned order dated 8th July, 2010, the Tribunal allowed

the O.A. of the respondent no.1 and directed petitioner as well as

respondent no. 2 to offer appointment to respondent no.1 with all

consequences within a period of three months from the date of receipt

of order.

Aggrieved with the same, present writ petition is filed

challenging the relief granted to respondent no.1.

3. Learned counsel for the petitioner has contended that the

Tribunal has failed to appreciate that the respondent no.1 had already

appeared in the examination for the post of Primary Teacher

(MCD)/Assistant Teacher under the post code 164-165/07 but failed

to qualify the same, as such respondent no.1 is not entitled for any

benefit given by this court in Sachin Gupta's case (supra). It is

further contended that age relaxation could be given to respondent

no.1 only once and same was already availed by respondent no.1 in

the year 2007.

4. On the other hand, the stand of respondent no.1 is that when

she had appeared in the examination for the post of Assistant Teacher

in the year 2007, she was not overage as she was below 27 years at

that time as such she did not avail the relaxation of age given by this

court vide judgment in Sachin Gupta's case (supra). It is contended

that respondent no.1 had done ETE course in the year 2007 and

when she appeared in the examination for the post of Assistant

Teacher conducted by the petitioner in the year 2008, she was over

age on account of amendment in rules but in view of the judgment in

Sachin Gupta's case (supra) she was entitled for one chance as such

she is entitled for appointment as she had cleared the examination.

5. We have heard counsel for the parties.

For appointment to the post of Assistant Teacher (Primary) in

the Government of NCT of Delhi, the Government of NCT of Delhi had

notified its Recruitment Rules by virtue of power conferred by proviso

to Article 309 of the Constitution. The Department of Urban

Development vide notification dated 13th July, 2007 had also notified

Recruitment Rules for appointment to the post of Assistant Teacher

(Primary) in MCD. Both the RRs of Government of NCT of Delhi and

MCD are identical. Both the RRs mandatorily prescribe as essential

eligibility criteria minimum and maximum eligible age as 20 and 27

years respectively.

Prior to aforesaid RRs, the age limit for participating in the

Assistant Teacher (Primary) examination conducted by the petitioner

was 32 years for male candidates and 42 years for female candidates.

The candidates being aggrieved by the RRs notified by the

Government of NCT of Delhi vide notification dated 8th May, 2006 and

by the Department of Urban Development vide notification dated 13th

July, 2007, filed various writ petitions before this court challenging

the constitutional validity of the same. The entire batch of writ

petitions were disposed of by this court vide judgment dated 28th

August, 2008 titled Sachin Gupta and others v. Delhi Subordinate

Services Selection Board through its Chairman & Ors reported in

2008 IX AD Delhi 96 wherein language and marks criteria has been

upheld in its entirety. Even the age criteria i.e. the minimum and

maximum age limits of 20 years and 27 years respectively has been

upheld, but with a view to ameliorate the hardship of already enrolled

students in ETE course, it was directed that petitioner would permit

all those candidates who have completed the ETE course either in the

year 2006 or 2007 or 2008 to appear in the examination conducted by

the petitioner for the post of Assistant Teachers (Primary) once

provided they do not exceed age limit of 32 years for males and 42

years for females and also fulfil all other eligibility conditions. It was

further held that relaxation granted by this court would cease to

operate for the ETE courses after 2008 i.e commencing from 2009 as

from 30th September, 2007 the maximum age limit for ETE course has

been reduced from 30 years to 24 years.

6. It is admitted position that respondent no.1 had passed ETE

course in July, 2007. The judgment in Sachin Gupta's case (supra)

was delivered on 28th August, 2008 wherein directions have been

given to petitioner to permit all those candidates who have completed

the ETE course either in the year 2006 or 2007 or 2008 to appear in

the examination conducted by the petitioner for the posts of Assistant

Teachers (Primary) once each of MCD and Govt. of NCT of Delhi. The

relevant portion of the judgment is reproduced which is as under:-

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

59. However, considering that the maximum age prescribed for the post of Assistant Teachers (Primary) for the MCD and NCT has been reduced from 32 years for males and 42 years for females to 27 years, we are of the view that this would cause hardship to candidates already enrolled in the ETE course, who might suddenly find themselves overage and ineligible. With a view to ameliorate this hardship and as a one time measure, following the ratio in the case of Anuj Johri vs. Union of India & Ors reported in 2005 III AD (DELHI) 614, it is directed that the respondents would permit all those candidates who have completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the respondents for the posts of Assistant Teachers (Primary) once each of the respondents i.e MCD and Govt. of NCT of Delhi provided they do not exceed the upper age limit of 32 years for males and 42 years for females and also fulfill all other eligibility conditions. This would also apply to candidates, who have already taken the examination as permitted by this Court. This relaxation will be independent of the relaxation applicable to reserved categories. However, the relaxation granted by this court shall cease to operate for the ETE course after 2008 i.e commencing from 2009 as from 30th September, 2007 the maximum age limit for ETE course has been reduced

from 30 years to 24 years.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

64. To conclude, the language and marks criteria (namely passing of Hindi subject at primary level and minimum 50% marks in senior secondary examination) are upheld in their entirety. Even the age criteria (namely minimum and maximum eligibility age as 20-27 years respectively) is upheld but with a view to ameliorate the hardship of already enrolled students in ETE course, it is directed that the respondents would permit all those candidates who have completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the respondents for the posts of Assistant Teachers (Primary) once each of the respondents i.e MCD and Govt. of NCT of Delhi provided they do not exceed the upper age limit of 32 years for males and 42 years for females and also fulfill all other eligibility conditions. This would also apply to candidates, who have already taken the examination as permitted by this Court. This relaxation will be independent of the relaxation applicable to reserved categories. However, the relaxation granted by this court shall cease to operate for the ETE course after 2008 i.e commencing from 2009 as from 30th September, 2007 the maximum age limit for ETE course has been reduced from 30 years to 24 years."

The Department of Urban Development had notified its

Recruitment Rules on 13th July, 2007, the validity of which has been

upheld in Sachin Gupta's case (supra) vide judgment dated 28th

August, 2008. Respondent no.1 had appeared in the examination

conducted by the petitioner for the post of Assistant Teacher (Primary)

on 20th April, 2008. Prior to this she had appeared in the

examination in the year 2007. She was not over age at that time.

Further by then, judgment in Sachin Gupta's case (supra) was also

not delivered. The said judgment gives benefit to those who after

amendment of RRs suddenly found themselves overage as the

maximum age prescribed for the post of Assistant Teacher (Primary)

for MCD/GNCT had been reduced from 32 years for males and 42

years for females to 27 years. When respondent no.1 appeared in

exam in the year 2008, she had completed 27 years of age i.e. she was

few months above 27 years of age.

The ratio of law laid down in Sachin Gupta's case (supra) is that

as a one time measure, to ameliorate the hardship of already enrolled

students in ETE course, petitioner was directed to permit all those

candidates who had completed the ETE course either in the year 2006

or 2007 or 2008 to appear in the examination conducted by the

petitioner for the posts of Assistant Teachers (Primary) once each of

MCD and Govt. of NCT of Delhi provided they do not exceed the upper

age limit of 32 years for males and 42 years for females and also fulfill

all other eligibility conditions.

Respondent no.1 had not availed the benefit of aforesaid

judgment as the same judgment was delivered only on 28th August,

2008. By appearing in examination in the year 2008, she is availing

the benefit of Sachin Gupta's case (supra) for the first time.

Learned counsel for the petitioner has referred to the judgment

of this Court in Parul Dhingra v. DSSSB (WP(C) No.4677/2010)dated

02.11.2010. The said judgment has no applicability to the facts of the

present case as in the said case respondent therein had done ETE

course in the year 2002.

In view of above discussion, the contentions raised by learned

counsel for petitioner have no force and the same are rejected.

For the foregoing reasons, the writ petition is dismissed.

The learned counsel for the respondent no.2 MCD has

submitted that there is a vacancy available for the post of Assistant

Teacher. The petitioner shall recommend the case of the respondent

no.1 to respondent no.2 within two weeks who will give the

appropriate appointment letter to the respondent no.1 within two

weeks thereafter in accordance with law. It is clarified that the

respondent no.1 shall not be entitled for arrears of wages. However,

considering the facts and circumstances, the parties are left to bear

their own costs.

VEENA BIRBAL, J.

ANIL KUMAR, J.

FEBRUARY 28, 2011 ssb