Asha vs Govt. Of Nct Of Delhi & Ors.
2014 Latest Caselaw 3863 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                       Date of Decision: 22.08.2014

+     W.P.(C) 1035/2014 & C.M. No.2122/2014
      ASHA
                                                               ..... Petitioner
                           Through:   Mr. Sudhanshu Tomar, Advocate

                           versus

      GOVT. OF NCT OF DELHI & ORS
                                                             ..... Respondent

Through: Mr. Yogesh Saini, Adv. for Mr. V.K.

Tandon

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

S.RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner challenges an order of the Central Administrative Tribunal (CAT/ Tribunal) dated 06.01.2014 in O.A. No.1702/2013 declining that application, whereby a direction was sought to the respondents/GNCTD that they ought to apply a circular dated 01.11.1980 extending general age relaxation for ten years for women candidates for recruitment to the teachers post, to the post of Librarian.

2. Briefly, the facts are that the post to which the petitioner seeks employment is that of Librarian in GNCTD established and managed schools in Delhi. On 21.01.2011, the GNCTD had issued an order to the

following effect:

"The post of Librarian in Govt. Schools of Dte. of Education, Govt. of N.C.T. of Delhi is hereby declared as teaching post for all purpose with immediate effect and accordingly the Librarians shall avail all benefits applicable to teaching category in prospective manner only. It is further ordered that the Librarians shall take classes also besides the work of Library as and when required by concerned HOS/any other higher authority.

This issue with the prior approval of Director of Education".

3. Subsequently, on 24.10.2011, 89 vacancies were notified in the cadre of Librarian. This advertisement was challenged by certain candidates on the allegation that the provisions of Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 had not been followed. By order dated 01.06.2012 (in W.P. (C) No.3411/2012), the advertisement was directed to be scrapped. A review proceeding seeking recall of that order was also dismissed on 07.09.2012.

4. In these circumstances, a fresh advertisement was issued on 20.02.2013. The relevant condition with which the petitioner was aggrieved, and which impelled her to approach the Tribunal was the age limit (of 30 years) prescribed in that advertisement. The age relaxation provision stipulated in the advertisement and applicable to all reads as follows:

"7. Age Relaxation:

      S. No.     Categories                    Extent of Age Concession





       1.        Scheduled    Caste       and 05 years
                Scheduled Tribes

      2.        Other Backward Class           03 years

      3.        Persons with disabilities      10 years

      4.        SC/ST       Persons     with 15 years
                disabilities

      5.        OBC        Persons      with 13 years
                disabilities

      6.        Departmental     candidate     Upto 05 years for Group 'B'
                with atleast three years       posts (which are in the same
                service     in      Central    line or allied cadres and where
                Govt./Govt. of Delhi           a relationship could be
                                               established that the service
                                               already      rendered    in   a
                                               particular post will be useful
                                               for the efficient discharge of
                                               the duties of post.)

                                               Upto 40 years of age (45 years
                                               for SC/ST for Group 'C' post.

7. Meritorious Sports Persons Upto 05 years (10 years for SC/ST and 08 years for OBC candidates)

8. Ex-Serviceman (For Group Military services plus three "C" Posts) years. 06 years and 08 years for OBC and SC/ST candidates respectively."

5. The petitioner's grievance was that once the Delhi Government had equated the post of Librarian with that of other teachers in its schools, for all

purposes, incumbents and prospective candidates had to be treated in a like manner. In this respect, the petitioner relied upon a general relaxation circular of 01.11.1980 issued by the Department of Education, Delhi Administration, which is to the following effect:

"1. In exercise of the powers vested in him under Rule 43 of the Delhi School Education Rules, 1973, the Administrator is pleased to prescribe for women candidates a general relaxation for 10 years in the maximum age limits prescribed in the Recruitment Rules for recruitment to various posts of teachers in Delhi Schools.

2. The Managing Committees shall, while considering women candidates for appointment to vacancies in their schools, consider such candidates as per the revised age limit for women candidates.

[Delhi Admn., Dte. of Edn., Recruitment Branch, No.F.1/16/3/R & S/79, dt. 1.11.1980]".

6. It was pointed out that even though the rules of recruitment for the post of librarian framed with effect from 15.01.2013 stated that the age limit for direct recruitment was 30 years and relaxation was upto five years, the gender based age relaxation circular in favour of women could not be excluded, and that the GNCTDs position denying this benefit was arbitrary.

7. The respondent/ GNCTD, on the other hand, contended that being a policy decision whether such age relaxation ought to be granted, the CAT's jurisdiction did not extend to prescribe the eligibility conditions such as qualification, age relaxation etc. The CAT accepted the GNCTDs position and rejected the petitioner's application.

8. Learned counsel for the petitioner reiterates the submissions urged in support of the present petition. He also points out that neither in the reply before the Tribunal, nor in any document has it been ever submitted that the 1980 circular stands superseded. It was argued that on a parity of reasoning, non teaching or miscellaneous teaching posts such as drawing teachers etc. have been afforded relief of 10 years relaxation in the age limit at the time of recruitment-on basis of gender. Contending that this was in line with the general policy of GNCTD to grant ten years relaxation to women candidates, it was argued that the benefit of the 21.01.2011 circular equating the post of librarian with that of teaching staff has been judicially recognised. In this respect, he relied upon the decisions of this Court in Nutan Gulati v. Directorate of Education (W.P. (C) No.109/2013 decided on 09.07.2013) and Neha Vashisht v. GNCT of Delhi (W.P. (C) No.1840/2013 decided on 23.01.2004).

9. Counsel for GNCTD argued that the order of the Tribunal is reasonable and does not call for interference. He relied upon the judgment taken note of by the Tribunal. i.e. V.K. Sood v. Secretary, Civil Aviation, 1993 Supp. (3) SCC 9, as well as State of M.P. v. Dharamveer, (1998) 6 SCC 165, and submitted that the Tribunal or, for that matter, the Court would not engage itself in a policy exercise to work out the appropriate terms - to be applied for the purposes of recruitment.

10. It is evident from the above discussion that the petitioner's contention hinges on the applicability of the 01.11.1980 circular in the light of the equation of post of Librarian with that of other teachers - made effective by a later notification on 21.01.2011. The respondents did not contest - nor

indeed can they - that the equation is matter of fact. Their only contention appears to be that in the absence of an appropriate amendment reflecting this equation, no right accrues to a prospective candidate to demand that they ought to be given age relaxation in line with the 01.11.1980 circular. Significantly, the GNCTD's reply in the application before the Tribunal nowhere states that the circular of 1980 was superseded either in letter or in effect. At best, its argument appears to be that the Recruitment Rules pertaining to Librarian framed in 2003 do not enable such age relaxation.

11. In the opinion of this Court, that argument is fallacious; it does not meet the subsequent development of equation of the two posts made effective from 21.01.2011. The compelling consequences of that event were noticed for varied and diverse conditions of service in the judgments of this Court (i.e. Nutan Gulati (supra) and Neha Vashisht (supra). No doubt, in both those cases, what occasioned the legal proceedings was a demand by unaided school teachers to equate the terms and conditions of Librarian, given the mandate of Section 10(1) of Delhi Schools Education Act. However, this Court cannot lose sight of the fact that the discussion in these judgments, like in the present case, centred around the equation which occurred between the post of Librarian and teaching posts. In the first case, Nutan Gulati (supra), the equation of parity with respect to extension of retirement age from 60 to 62 was in issue; in the second case, Neha Vashisht (supra), it was the appointment to the post of Librarian in the light of 2011 equation circular was in issue.

12. This Court is conscious of the fact that in the realm of executive decision making, where policy formulation is involved, Article 226 hardly

affords any room to spell out, much less direct the Government or the State Agency, to behave in any particular manner. Yet, at the same time, when facts - such as those presented before this Court in the case, stare on the face of record, i.e. equation of posts had occurred after the Recruitment Rules are framed, and the subsequent two judgments directing the diverse conditions of service to be equated with that of teachers for librarian, the mandate of Article 14 cannot be ignored.

13. In view of the GNCTD's silence as to the supersession or inapplicability of the 01.11.1980 circular - clearly its position that age relaxation for women candidates cannot be granted, is violative of Article 14 of the Constitution; it amounts to not giving effect to the discretion vested in it for no reason except that it has failed to carry out the necessary consequential amendment to the recruitment rules giving effect to the equation which occurred. The GNCTD also does not dispute that for other categories of teaching staff or teachers in its schools, the 10 year relaxation, based upon 01.11.1980 circular or rules-which assimilated its mandate, have been given effect to.

14. The impugned order of the Tribunal also has noticed a judgment of this Court in Smt. Promila Dixit v. GNCTD in W.P.(C.) No.1234/2010 decided on 26.11.2010, where an identical contention with respect to the equation of TGT with librarian for the purposes of recruitment and age relaxation was upheld. This Court is of the opinion that this being the position even before the issuance of 21.01.2011 circular, the GNCTD's stand in this case appears to be obstinate to put it mildly. Furthermore, the CAT, in our opinion, fell into error in ignoring a direct judgment on the

issue even after noticing its effect and purport.

15. For the foregoing reasons, the petition has to succeed. The impugned order of the CAT is, accordingly, set aside. The respondents are hereby directed to accept the petitioner's application and allow her to appear in the competitive examination scheduled on 31.08.2014.

16. The petitioner shall be intimated about her examination centre etc. on 27.08.2014 by the concerned officer of the DSSSB. For that purpose, she shall appear before the concerned officer of the DSSSB on 27.08.2014. The respondent GNCTD is directed to coordinate with the DSSSB and ensure that the petitioner is given the Admit Card as well as intimation about the examination centre etc. on 27.08.2014. The petitioner shall present in the office of the respondent/DSSSB at 11:00 a.m. on that day.

17. The writ petition is allowed in the aforesaid terms.

18. Order Dasti under the signatures of the Court Master.

S. RAVINDRA BHAT, J

VIPIN SANGHI, J AUGUST 22, 2014 sr