Mrs. Prerna vs Govt Of Nct Of Delhi & Ors.
2011 Latest Caselaw 809 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 8347/2010

%                 Date of Decision: 10.02.2011

MRS. PRERNA                                    .... Petitioner
                 Through Mr. Ashok Agarwal, Advocate with
                         Mr. Raunak Jain, Advocate and
                         Ms. Kusum Sharma, Advocate

                             Versus

GOVT OF NCT OF DELHI & ORS.                 .... Respondents
              Through Ms. Zubeda Begum, Advocate with
                       Ms. Sana Ansari, Advocate


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?
2.   To be referred to the reporter or not? yes
3.   Whether the judgment should be reported
     in the Digest? yes


VEENA BIRBAL, J.

*

1. Rule D.B.

2. With the consent of parties, the matter is taken up for final

disposal.

3. Respondent no. 3 had advertised 1204 vacancies (UR 563,

OBC 307, SC 185 and ST 149) for the post of Assistant Teacher

(Primary) in MCD under Post Code 57/06 vide its Advertisement

No. 03/2006. The petitioner had applied for the said post and

appeared in the examination conducted by respondent no. 3 in

the month of March, 2007 for appointment in the schools under

the overall control of respondent no. 2. Petitioner appeared as a

candidate of unreserved category (UR).

As per amended recruitment rules, the age limit prescribed

for the aforesaid post was 20-27 years whereas as per

unamended Recruitment Rules, the age limit prescribed was 32

years for male and 42 years for female candidates. There was no

lower age limit prescribed in the unamended recruitment rules.

The petitioner was under age at the time of making application

for the post of Assistant Teacher i.e. she was below 20 years of

age whereas requirement of minimum age as per amended

Recruitment Rules for the said post was 20 years. A number of

candidates were adversely affected with the amendment of

recruitment rules as a result of which a number of writ petitions

were filed in the High Court of Delhi challenging the Recruitment

Rules as notified on 08.05.2006 by the Government of NCT of

Delhi before a Division Bench of this court. The petitioner along

with five other candidates also filed a writ petition bearing no.

13743/2006 titled Sandeep Rana & Ors. vs Government of NCT

of Delhi and Ors. as she was also adversely affected by the

amendment of the recruitment rules. The Hon‟ble High Court

directed the respondent to permit the petitioners of various writ

petitions filed before it including the present petitioner to appear

in the examination for selection to the post of Assistant Teacher.

Subsequently, vide judgment dated 28.08.2008 this Court

disposed of W.P.(C) No. 7297/2007 titled Sachin Gupta & Ors. vs

UOI along with other petitions including that of the petitioner

which were tagged with it wherein the validity of Recruitment

Rules as notified on 08.05.2006 was upheld. However, with a

view to ameliorate the hardship of already enrolled students in

ETE courses, this court 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 post of

„Assistant Teacher‟ once, 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 and the same would apply to

the candidates who had already taken the examination as

permitted by this court.

After the decision of this court in Sachin Gupta & Ors. vs

UOI (supra), the respondents declared the results kept in sealed

covers. As per result declared, the name of petitioner appeared at

Serial No. 12 and was shown „not selected‟. According to

petitioner, her particulars were wrongly given i.e. she was shown

to have passed ETE in the year 2005 instead of 2006. She was

also shown „overage‟. The marks of last selected candidate were

180 whereas petitioner secured 185.75 marks but her

candidature was rejected on the ground that she was overage.

Relevant information was supplied to her under Right to

Information Act vide letter dated 28.10.2009. The petitioner filed

an O.A. challenging order/letter dated 28.10.2009. At the

preliminary hearing, the same was dismissed as withdrawn with

liberty to file fresh O.A. giving latest particulars. Petitioner had

also sent a legal notice to the respondent as her particulars in the

result declared were not correct. In response to same,

respondent no.3 issued another letter dated 24.12.2009, wherein

her candidature was rejected on the ground that she was

„underage‟.

Petitioner challenged the action of the respondent rejecting

her candidature by filing a petition before the Tribunal on the

ground that the respondents while rejecting her case had not

complied with the judgment of this court in Sachin Gupta & Ors.

vs UOI (supra) in true letter and spirit. It is contended that said

judgment clearly provides that exemption from amended

Recruitment Rules would apply to the candidates who had

already taken their examination as permitted by the court. The

respondents have committed illegality in not granting her

exemption. The other contention raised before the Tribunal was

that the action of the respondent in denying petitioner

appointment on the ground of being „underage‟ was in violation of

law settled by this court in W.P.(C) No. 11331/2009 titled The

Commissioner MCD, Delhi vs Shashi; wherein it has been held

that age cannot be the basis for discrimination amongst equally

placed candidates and negated the contention that underage

candidates can avail similar opportunities later in life.

The contentions raised were rejected by the Tribunal by a

detailed order dated 14.09.2010 which has been challenged by

filing the present petition. Aggrieved with the same, the present

petition is filed.

4. The learned counsel for petitioner has raised similar

contentions before this court as were raised before the Tribunal.

It is also contended that the order of the Tribunal is illegal and is

contrary to the judgments referred above.

5. The stand of the respondent is that a Division Bench of this

court in Sachin Gupta & Ors. vs UOI (supra) has upheld the

validity of amended Recruitment Rules which were notified on

08.05.2006 by which age for the Assistant Teacher (Primary) was

reduced to 20-27 years and relief has been granted only to the

„overage‟ candidates and not to the „underage‟ candidates, as

such petitioner is not covered by the said judgment. It is also

contended that the judgment of The Commissioner MCD, Delhi vs

Shashi (supra) relied upon by petitioner is not applicable to the

facts of the present case, as such petitioner cannot avail any

benefit from the said judgment.

6. We have heard the counsel for parties. It is admitted

position that the petitioner was less than 20 years of age at the

time of applying for the aforesaid post. She was permitted to

appear in the examination by the order of this court along with

various other candidates who had also challenged the

Recruitment Rules. This court vide judgment dated 28.08.2008

disposed of writ petition no. 7297/2007 titled Sachin Gupta &

Ors. vs UOI along with a number of other writ petitions which

were tagged with it including that of petitioner. By the said

judgment, the age criteria i.e. minimum and maximum eligibility

age of 20-27 years respectively was upheld but with a view to

ameliorate the hardship of already enrolled students of ETE

courses, it was directed that the respondents would permit those

candidates who had completed ETE course either in the year

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

the respondents for the post of „Assistant Teacher‟ once provided

they do not exceed the upper age limit of 32 years for males and

42 years for females and on the fulfillment of other eligibility

conditions. The relevant portion of the judgment is as under:-

"Para 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 courses, 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 Teacher (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 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. Except to the above extent, legality and validity of the impugned RRs are upheld and accordingly the entire batch of writ petitions are disposed of in the above terms with no order as to costs."

Learned counsel for respondents have pointed out that even

the Special Leave Petition filed against the judgment of Sachin

Gupta & Ors. vs UOI (supra) has been dismissed and in this

regard learned counsel for respondent has placed on record copy

of the order dated 06.08.2010 passed in review application moved

in W.P.(C) No. 7297/2007 i.e. Sachin Gupta vs UOI (supra) which

is reproduced as under:-

"CM No. 84/2010 (for review)

This is an application for review of the order dated 28th August, 2008 passed in W.P.(C) 7634/2007, in a batch of writ petitions.

Be it noted, the order passed in the writ petitions was challenged by a Special Leave petition and their Lordships have dismissed the same.

In view of the aforesaid, we are not inclined to entertain the review application and the same is rejected."

Learned counsel for respondent has not pointed out

anything to the contrary.

Learned counsel for respondent has also pointed out that

an application i.e. CM 14055/2008 was moved in W.P.(C) No.

7522/2007 i.e. Amit Kumar v. DSSSB which was one of the batch

matters connected with Sachin Gupta & Ors. v. UOI and disposed

of with the said matter seeking clarification of the judgment dated

28.08.2008 to the effect that the under age petitioners are also

entitled to benefit of concession granted by this court in

accordance with para 64 of the aforesaid judgment. However, the

Division Bench of this court vide order dated 06.02.2009

disposed of the said review application by observing as under:-

"CM No. 14055/2008 in WP(C) No. 7522/2007

The present application has been filed seeking clarification of the judgment dated 28th August 2008 to the effect that under aged petitioners are also entitled to the benefit of concession granted by this Court in accordance with the paragraph 64 of the aforesaid judgment.

xxxx xxxx xxxx xxxx

However, it is pertinent to the mention that a case of under aged student has been specifically dealt with in paragraph 57 of the aforesaid judgment.

Paragraph 57 reads as follows:

57. As far as the under-aged candidates are concerned, we are of the view that it is open to the State government to stipulate a cut off age as it may like to recruit only candidates having sufficient maturity. In any event, the under-aged candidates suffer no prejudice as they would be eligible to apply for the post of Assistant Teacher (Primary) in the future.

In our opinion, both the paragraphs 64 as well as 57 have to be read harmoniously and the effect of reading both paragraphs harmoniously would be that the under aged students would have to wait until they turn 20 and they would be entitled to have three chances as prescribed under the relevant rules. With the aforesaid observations, the present application stands disposed of."

In view of above clarification given, it is clear that no benefit

has been given to the candidates who were under age on the

relevant date in the judgment of Sachin Gupta and Ors. v. UOI

(supra) on the ground that underaged candidates suffer no

prejudice and they would be eligible to apply for the post of

Assistant Teacher (Primary) in future. In view of above

discussion, the contention raised by the petitioner has no force

and is rejected.

7. The other contention of the petitioner is that denying the

petitioner appointment on the ground of being under age is in

violation of law laid down by this Court in The Commissioner

MCD, Delhi vs Shashi; W.P.(C) No. 11331/2009. We have gone

through the said judgment. In the said case as per

advertisement, the age limit for recruitment for Assistant Teacher

(Primary) as on 31.07.1996 was 18-30 years generally with

exceptions for lady candidates, SC/ST candidates, physically

handicapped candidates, etc. In response to the advertisement,

the petitioner therein had received large number of applications

from the general public and to reduce the number, petitioners

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

listing on the basis of age as per which all the applicants between

the age of 18 to 27 were eliminated and those who were between

28 to 30 years became entitled to appointment subject to

fulfillment of other conditions.

The reasoning given by the petitioner therein for short-

listing was not accepted by the court and it was held that age

discrimination carried out was arbitrary and contrary to

principles of Article 14 of the Constitution of India. The above

case has no applicability to the facts and circumstances of the

present case wherein the minimum and maximum age is fixed by

the Recruitment Rules. The petitioner was underage when she

applied for the post of Assistant Teacher (Primary) as per

Recruitment Rules for the said post. The legality and validity of

these Recruitment Rules has been upheld by the Division Bench

of this court in Sachin Gupta vs UOI (supra) with slight

relaxation for the over age candidates as is stated in Para 64 of

the judgment which is reproduced above. The SLP challenging

the said judgment is also dismissed.

For the foregoing reasons, we do not find any illegality or

irrationality in the impugned order dated 14.09.2010 of the

Tribunal which requires interference of this court in exercise of

its extraordinary jurisdiction under Article 226 of the

Constitution of India.

The writ petition is, therefore, dismissed.

Parties are, however, left to bear their own costs.

VEENA BIRBAL, J.

ANIL KUMAR, J.

FEBRUARY 10, 2010 kks