Mukesh Kumar vs Government Of Nct Of Delhi & Ors
2011 Latest Caselaw 2694 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 19th May, 2011

+                           W.P.(C) 3547/2010

         MUKESH KUMAR                                         ..... Petitioner
                    Through:              Mr. Lokesh Bhola & Mr. Shohit
                                          Chaudhary, Advocates.

                                   Versus

         GOVERNMENT OF NCT OF DELHI & ORS. ..... Respondents
                    Through: Ms. Zubeda Begum, Adv. for R-1&2.
                             Mr. S.C. Gupta, Advocate for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The challenge in this writ petition is to the rejection of the

candidature of the petitioner for appointment for the post of Assistant

Electric Fitter (AEF) in the respondent No.3 Delhi Transco Ltd. (DTL) for

the reason of the petitioner being overage. Notice of the petition was

issued and the counter affidavits have been filed by the respondent No.2

Delhi Subordinate Services Selection Board (DSSSB) and by the

respondent No.3 DTL and to which rejoinders have been filed by the

petitioner. Vide interim order dated 4th June, 2010 which continues to be

in force, appointments to the said post of AEF in the respondent No.3 DTL

on the basis of the advertisement in pursuance to which the petitioner had

applied were made subject to the outcome of the writ petition. The

counsels for the parties have been heard.

2. The respondent No.2 DSSSB in the month of November, 2003

issued the advertisement inviting applications inter alia for the post

aforesaid in the respondent No.3 DTL. Of the 27 vacancies in the said post,

8 were stated to be reserved for Other Backward Classes (OBC). The last

date for submission of the application was 24th January, 2004. The

maximum age limit prescribed for the said post was of 27 years. Though it

was not so mentioned but all counsels agree that the age is to be reckoned

as on the last date for making the applications. Admittedly, the petitioner

with the Date of Birth of 1st January, 1975, as on 24th January, 2004 was 29

years and 24 days old. The petitioner however is an OBC and had applied

in the OBC category and claims that as per policy of Government of India

there was to be relaxation of three years in age for OBC candidates. The

petitioner thus claims that with such relaxation, the maximum age as on

24th January, 2004 for OBC candidates was to be of 30 years and he being

29 years and 24 days old, was eligible for so applying.

3. The respondent No.2 DSSSB held a written examination on 1 st

August, 2004 in which the petitioner appeared. On 31st August, 2004, the

respondent No.2 asked the petitioner to furnish copies of documents in

support of his claim for falling under the OBC category and which

documents were furnished by the petitioner.

4. No result of the aforesaid examination held on 1st August, 2004 was

declared. After four years, the respondent No.2 with reference to the

application aforesaid of the petitioner asked the petitioner to submit certain

other documents which also were submitted by the petitioner. However,

thereafter also no outcome of the selection process was disclosed.

5. On the contrary, the respondent No.2 DSSSB on 13 th May, 2008

inserted "second advertisement" inviting applications, again for the post of

AEF in the respondent No.3 DTL; this time showing the number of

vacancies as 69 with 18 reserved for OBCs. This time around, the

maximum age prescribed, according to the petitioner was of 35 years as on

10th July, 2008 with the clear stipulation of relaxation of 3 years for OBCs.

6. It is the contention of the petitioner that without announcing the

result of the earlier selection process, the second advertisement

commencing another selection process could not have been commenced.

However, the same is not relevant for the present purpose. The petitioner

again applied and was issued an admit card for the written examination

scheduled on 8th March, 2009.

7. However, on 12th November, 2008, the result of the written test

earlier held on 1st August, 2004 was announced and the petitioner was

declared as "selected" in the OBC category. It is the case of the petitioner

that having been selected, he did not appear in the written examination

scheduled on 8th March, 2009 in pursuance to the second advertisement.

8. However, no appointment letter was issued to the petitioner inspite

of having been declared "selected" as aforesaid. When the petitioner learnt

that others selected had been issued appointment letters, he started making

enquiries through the medium of Right to Information Act and was vide

reply dated 20th May, 2009 of the respondent No.2 DSSSB informed as

under:

"(i) upper age limit for post code 0155 was 27 years as cut off date i.e. 24.01.2004.

(ii) as per the policy of Government of India, three years relaxation is given to OBC candidates.

(iii) Shri Mukesh Kumar, Roll No.15536339 is included in selected candidates and the list of selected candidates was forwarded to DTL.

(iv) DTL returned the dossiers with remarks that candidates are over aged."

It may be noticed that the petitioner as per the aforesaid reply also,

being eligible for age relaxation, was not overage. The representations of

the petitioner having not met with any success, the present writ petition

was filed.

9. The respondent No.2 DSSSB has in its counter affidavit stated:

(i) That it makes the selection of Group C and Group B posts of

various departments of Government of NCT of Delhi and its

autonomous / local bodies on the basis of the requisition sent

by them and follows the selection procedure in accordance

with the recruitment rules of the concerned posts and the

relaxations and concessions as conveyed by the user

department which are in accordance with the instructions

issued by Government of India from time to time.

(ii) That the respondent No.3 DTL in its requisition dated 23rd

October, 2003 to the respondent No.2 DSSSB for filling up of

29 vacancies for the post of AEF had prescribed the age limit

as not exceeding 25 years, relaxable by five years for

government servants /SC/ST and by three years for OBCs.

In this regard, it may be stated that the respondent No.2

DSSSB did not annex the said requisition to its counter

affidavit. The respondent No.2 DSSSB however filed

documents under List of Documents dated 8th August, 2010

and at pages 4 to 9 whereof has purported to file the said

requisition dated 17/23rd October, 2003. However, the said

documents though at page 4 (running page 78 of the paper

book) contains the letter with requisition for 29 vacancies for

the post of AEF, at pages 5 to 9 contains the particulars for the

post of Sub Station Attendant (SSA) Grade-II i.e. the other

post for which requisition was sent and no particulars sent

along with the requisition for the post of AEF have been

furnished. The same have not been furnished by the

respondent No.3 DTL also. This position was admitted by the

counsels for the respondent No.2 DSSSB and the respondent

No.3 DTL during the course of hearing. It is however worth

noting that the maximum age limit prescribed for the post of

SSA Grade-II was not exceeding 30 years, relaxable by five

years for government servants /SC/ST and three years for

OBCs.

(iii) That however since the Department of Personnel and Training

of the Government of India vide its Office Memorandum

dated 21st December, 1998 had made provision for addition of

two years in the upper age limit with effect from 1 st April,

1999 in the matter of direct recruitment in civil services /

posts, the respondent No.2 DSSSB while advertising the

requisitioned vacancies for the post of AEF and SSA Grade-II

provided the maximum age limit of 27 years instead of 25

years as per the requisition of respondent No.3 DTL for the

post of AEF and of 32 years instead of 30 years as per

requisition of the respondent no.3 DTL for the post of SSA-

Grade-II.

(iv) That the respondent No.3 DTL vide its letter dated 10 th

January, 2005 to respondent No.2 DSSSB informed that as per

its recruitment rules, the maximum age for the post of SSA

Grade-II was 30 years and the respondent No.2 DSSSB had

wrongly advertised it as 32 years. Though the respondent

No.2 DSSSB vide its reply dated 4th May, 2005 explained that

the increase of two years was effected in accordance with the

Office Memorandum dated 21st December, 1998 (supra) but

the respondent No.3 DTL in its subsequent letter dated 20 th

June, 2005 insisted that since its own Recruitment Rules did

not permit appointment beyond the age of 30 years in the case

of SSA Grade-II, it could not appoint the overage candidates

selected owing to the respondent No.2 DSSSB having itself

increased the age by two years. The respondent No.2 DSSSB

vide its subsequent communication dated 18th October, 2005

informed the respondent No.3 DTL that if it cancelled the

candidature of selected candidates on account of age, it would

be doing so at its own responsibility.

(v) That though the petitioner was selected according to

respondent No.2 DSSSB but since the respondent No.3 DTL

had informed that the maximum age for the post of AEF as

per its Recruitment Rules was 25 years and even with

relaxation of three years for OBCs, the petitioner was overage,

accordingly he was not appointed.

(vi) It is denied that in the second advertisement inserted on 13th

May, 2008, the maximum age prescribed for the post of AEF

was 35 years and it is reiterated that the same was 25 years

only.

Again neither the respondent No.2 DSSSB nor the respondent

No.3 DTL have filed any copy of the advertisement dated 13 th

May, 2008. The petitioner has filed copies of advertisement

published in English as well as in Hindi newspapers on 13 th

May, 2008. While as per the advertisement in Hindi, the

maximum age prescribed is of 35 years, as per the

advertisement in English, the maximum age prescribed is of

25 years. In view of the statement in the affidavit of

respondent No.2 DSSSB, it appears that there is a printing

error in the Hindi advertisement. However, the counsels for

the respondent No.2 DSSSB and the respondent No.3 DTL

proceeded on the basis as if the maximum age prescribed in

the second advertisement is of 35 years only and could not

explain as to why and how the age was enhanced from the

earlier stated of 25 years to 35 years.

10. The respondent No.3 DTL in its counter affidavit has pleaded that

the maximum age as per its recruitment rules for the post of AEF was 25

years; was wrongly advertised by the respondent No.2 DSSSB as 27 years

and the petitioner even with the relaxation of three years for OBCs, was

overage.

11. I have enquired from the counsels as to why the respondent No.3

DTL is not bound by the Office Memorandum dated 21 st December, 1998

increasing the upper age limit for direct recruitment by two years. No

plausible answer has been forthcoming.

12. Similarly, I have enquired form the counsels as to why, when the

mistake even if committed by the respondent No.2 DSSSB in, in

accordance with the Office Memorandum dated 21 st December, 1998

enhancing the age limit by two years than that requisitioned by the

respondent No.3 DTL, corrective measure were not taken and the matter

allowed to linger on till 2008. Again no answer has been forthcoming.

13. Another disturbing feature of the present case is the long time taken

by the respondents in the selection process. The selection process remained

pending from 2003 when the advertisement inviting applications was

published till 2009 i.e. for nearly six years. The respondents having kept

candidates in a lurch / pending for such long span of time cannot now be

heard to squabble about the petitioner being over age by about one year,

even if the version of the respondent No.3 DTL is to be accepted.

14. Moreover, the respondent No.3 DTL as the requisitioning

department owed a duty to the prospective applicants to immediately after

the date of the advertisement contact the respondent No.2 DSSSB and to

notify it of the mistake if any made by it in enhancing the maximum age by

two years. There is no explanation whatsoever as to why the respondent

No.3 DTL maintained absolute quietus in the matter. Had the respondent

No.3 DTL objected immediately at that time, the respondent No.2 DSSB

could have published a corrigendum and applicants such as the petitioner

would have been warned and would not have awaited the result of the

selection process and it is well nigh possible that they would have taken up

opportunities elsewhere. Else, just like the petitioner, upon being informed

of the selection chose not to appear in the examination in pursuance to the

second advertisement and of which he had been issued the admit card, the

petitioner could reasonably be expected to have missed out on other

opportunities also.

15. In my opinion, the respondent No.3 DTL is not only bound by the

Notification of 21st December, 1998 but is also bound by the action of

respondent No.2 DSSSB of, notwithstanding the requisition letter of

October, 2003, having enhanced the age and the petitioner cannot be

prejudiced by their said action. Thus, looked at either way, the conclusion

is inescapable that the petitioner inspite of selection could not have been

rejected as overage.

16. The petition is therefore allowed, the rejection by the respondent

no.3 DTL of the candidature of the petitioner for appointment to the post of

AEF is quashed/set aside. The respondent no.3 DTL is directed to, on or

before 31st July, 2011 issue a letter of appointment to the petitioner. Even

though the petitioner would also have been entitled to emoluments from

the date of appointment onwards but since no arguments were addressed

on that part, I refrain from issuing any directions for the same. The

petitioner is however awarded cost of this petition of `20,000/- payable

before 31st July, 2011 as aforesaid.

RAJIV SAHAI ENDLAW (JUDGE) MAY 19, 2011 „gsr‟/pp..

(corrected and released on 17th June, 2011).