Delhi Subordinate Services ... vs Preeti Balayan & Anr.
2013 Latest Caselaw 1320 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: March 18, 2013

+                   R.P.No.135/2013 in WP (C)3397/2012

      DELHI SUBORDINATE SERVICES SELECTION
      BOARD & ANR.                        .....Petitioners
               Represented by: Ms.Zubeda Begum, Advocate

                                   versus

      PREETI BALAYAN & ANR.              ..... Respondents
               Represented by: Mr.Anand Nandan, Advocate for
                               R-1

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J.

1. None had appeared for the respondents No.1/review applicant when arguments were heard in the writ petition on February 01, 2013. The decision was pronounced on February 06, 2013.

2. 19 original applications filed by different persons, including the first respondent Preeti Balyan were disposed of by a common judgment and order dated March 30, 2012.

3. Concededly, the impugned order did not deal with the specific and distinctive fact pertaining to the first respondent. The decision by the Tribunal dealt with an altogether different set of facts, pertaining to other applicants before the Tribunal, but as we would be noticing hereinafter the view taken by the Tribunal was incidentally to the benefit of the first respondent as well. Since vide order dated February 06, 2013 we have set aside the impugned decision dated March 30, 2012,

the petitioner has filed the review petition.

4. Facts pertaining to the first respondent are that the advertisement dated December 29, 2009 inviting applications from eligible candidates to the post of Primary Teacher mandated that the minimum educational qualification was a 'two years diploma/certificate course in ETE/JBT or equivalent or B.El.Ed.' from a recognized institution. The closing date by which applications could be submitted was January 15, 2010, which happened to be the cutoff date to acquire eligibility. Admittedly, first respondent had not obtained the requisite degree/diploma, which she did only in July, 2011. In spite thereof she filed the application.

5. It so happened that the post in question got upgraded from Group 'C' to Group 'B' when recommendations of the Sixth Central Pay Commission were implemented from January 01, 2006. The existing Recruitment Rules which were framed when the post was a Group 'C' post stipulated the upper age to be 27 years as of the cutoff date. This was in consonance with the orders passed by the Central Government that upper age limit of Group 'C' posts should be 27 years. But when the post got upgraded to a Group 'B' post with effect from January 01, 2006, the Department forgot that the applicable directive issued by the Central Government was that all Group 'B' posts should have the upper age limit of 30 years; thereby it being necessary to amend the Recruitment Rule in so far the same restricted the upper age limit to 27 years.

6. Original applications were filed by some persons who could not apply since they were above the age of 27 years but below the age of 30 years. They pointed out to the Tribunal that with the implementation of the recommendations of the Sixth Central Pay Commission the post had become a Group 'B' post for which the upper age limit was 30 years.

7. The challenge succeeded. The Tribunal directed that the Recruitment Rules be amended suitably.

8. Taking corrective action, the Recruitment Rules were amended and a corrigendum was issued on September 13, 2011 notifying that the upper age would be now treated as 30 years; retaining the cutoff date January 15, 2010, the date October 17, 2011 was notified by which the candidates could submit their applications.

9. Candidates who acquired eligibility in the interregnum approached the Tribunal resulting in the impugned order dated March 30, 2012 being passed declaring that in so far the corrigendum dated September 13, 2011 retained the cutoff date of January 15, 2010 was illegal. The cutoff date for eligibility was shifted by the Tribunal to October 17, 2011.

10. Vide order dated February 06, 2013 we had set aside the said direction, and the reasons are in paragraph 19 to 25, which read as under:-

"19. Now, the effect of the direction issued by the Tribunal is that those who turned 30 years of age as of January 15, 2010 would become ineligible and that those who were less than 27 years of age as of January 15, 2010 but would be 27 years of age as of October 17, 2011 would become eligible. In other words, rights of some candidates with respect to the upper age in the context of the shifting of the cut-off date would get adversely affected.

20. Indeed, if only the Government of NCT Delhi and the Municipal Corporation of Delhi had put a stitch in time this problem would not have arisen.

21. There is a conflict between the rights of those who were eligible as of January 15, 2010 and lose the eligibility by become overage if the date is shifted to October 17, 2011 and those who were not eligible being less than 27 years is as of January 15, 2010 but became eligible with reference to the cut-off date October 17,

2011. Neither set of candidates is at fault. The entire fault is of the MCD and the Government of NCT Delhi. Indeed, such kinds of situations confront the Court with the problem of neither there being a law on the subject nor a precedent.

22. What should a Court do?

23. In our opinion navigate the journey using the ancient marnier's compass. In other words, the Court should be guided by the reason of the law and seek direction from the reason of the law.

24. The first reason of the law which acts as our compass is that ordinarily vacancies have to be filled up from amongst the eligible candidates pertaining to the year of the vacancy and if for some reasons the selection process is postponed, only those who were eligible in the year of the vacancy should be considered. The second reason of the law which acts as our compass is that wherever in an ongoing process a derailment takes place at a particular point, the rail should be put back at the point where it derailed after removing the cause of derailment and letting the train chug alone.

15. Guided by the aforesaid two reasons of law we unhesitatingly reach the conclusion that the only corrective action which could be directed to be taken was, as was directed by the Tribunal when the Original Applications filed by candidates who pointed out a hiatus between retaining the upper age limit of 27 years and the classification of the post was decided with a direction to amend the Recruitment Rule and issue a corrigendum making eligible candidates up to the age of 30 years; requiring the cut-off date January 15, 2010 to be retained. The subsequent decision mandating that the eligibility cut- off date should be shifted to October 17, 2011 would amount to modifying the track and as a result making ineligible many candidates who cross the age of 30 years as of January 15, 2010. It must be also remembered that the vacancies pertained to the vacancy year 2010 and this

explains the cut-off date being January 15, 2010."

11. The first respondent has been impacted adversely because of the fact that she acquired the necessary eligibility by July, 2011. If the cutoff date is retained as January 15, 2010, she would be ineligible, but if the cutoff date is shifted to October 17, 2011, she would be eligible.

12. Arguments advanced by learned counsel for the first respondent are that once the last cutoff date to submit applications stand shifted, the said date has to be the date by which eligibility has to be acquired.

13. We have already negated said contention for the reason if the plea would be accepted then candidates who turned 30 years as of January 15, 2011 would become ineligible for the reason as of the cutoff date October 17, 2011 they would be 31 years and 9 months of age.

14. Our reasoning that law requires corrective action to be taken at the stage where derailment takes place and no further compels us to dismiss the review petition, noting that as regards the first respondent the issue of eligibility was unrelated to the age, but related to her acquiring the eligible educational qualifications. Though arising in a different factual background, the legal effect being the same.

15. The review petition is accordingly dismissed but without any orders as to costs.

(PRADEEP NANDRAJOG) JUDGE

(VEENA BIRBAL) JUDGE MARCH 18, 2013 mm