Department Of Women And Child ... vs Urmila Devi
2014 Latest Caselaw 817 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                  Decided on February 12, 2014
+        W.P.(C) 728/2013, CM No. 1405/2013
         DEPARTMENT OF WOMEN AND CHILD
         DEVELOPMENT
                                                             ..... Petitioner
                                    Through:   Mr.Dhanesh Relan, Mr.
                                               Kumar Sameer, Advocates

                                    versus

         URMILA DEVI
                                                            ..... Respondent
                                    Through:   Mr.Varun Prasad, Advocate

+        W.P.(C) 729/2013, CM No. 1407/2013
         DEPARTMENT OF WOMEN AND CHILD
         DEVELOPMENT
                                                             ..... Petitioner
                                    Through:   Mr.Dhanesh Relan, Mr.
                                               Kumar Sameer, Advocates
                                    versus

         SMT. BANARAS GODARA
                                                            ..... Respondent
                                    Through:   Mr.Varun Prasad, Advocate

+        W.P.(C) 730/2013, CM No. 1409/2013
         DEPARTMENT OF WOMEN AND CHILD
         DEVELOPMENT
                                                             ..... Petitioner
                                    Through:   Mr.Dhanesh Relan, Mr.
                                               Kumar Sameer, Advocates
                                    versus

         RAJA BALA
                                                            ..... Respondent
                                    Through:   Mr.Varun Prasad, Advocate


W.P.(C)Nos. 728, 729, 730 & 732 of 2013                         Page 1 of 7
 +        W.P.(C) 732/2013, CM No. 1411/2013
         DEPARTMENT OF WOMEN AND CHILD
         DEVELOPMENT
                                                             ..... Petitioner
                                    Through:   Mr.Dhanesh Relan, Mr.
                                               Kumar Sameer, Advocates
                                    versus

         RAM CHANDRI
                                                            ..... Respondent
                                    Through:   Mr.Varun Prasad, Advocate

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

1. Since common issue of law and facts arises in this batch of writ petitions, with the consent of the learned counsels for the parties, the writ petitions are being disposed of by this common order.

2. A scheme known as 'Integrated Chid Development Programme' was started by the Central Government in the year 1975. It is funded by the Central Government. Its application, however, is at the hands of the respective States. The respondents herein were engaged as Anganwari workers on the following dates:

                Respondents-Workmen                  Date of Joining
         1. Ms. Urmila Devi                          27.01.1987
         2. Ms. Banaras Godara                       12.04.1980
         3. Ms. Raja Bala                            06.08.1986
         4. Ms. Ram Chandri                          23.08.1990

3. The respondents raised Industrial Disputes which were referred by the Govt. of NCT of Delhi to the Industrial Tribunal (Tribunal, in short), inter alia, as to whether the respondents are entitled to be promoted to

the post of Supervisor, if so, and what relief they are entitled to and what directions are necessary in this respect.

4. The identical case of the respondents in their claim petitions was that they have been appointed on regular basis on the dates mentioned above. They have been working continuously without any brake. They have been posted in project. According to them, they have not been promoted in the category of Supervisor, but other workers even employed on temporary post in the year 2007-2008 and again, 120 temporary Supervisor post have been created and the petitioner has arbitrarily appointed them without providing promotion to them. They relied upon the Judgment of the Supreme Court in Writ Petition (Civil) No. 1319/89 dated October 11, 1993, wherein the Supreme Court has rejected this type of exploitation. Further, they have sought a parity with the case of one Smt. Kamla Choudhary, the petitioner in the W.P.(C) No. 1319/89, who was promoted as Supervisor. Their claim is for promotion as Supervisor in the pay scale of Rs. 4500-7000, after completion of 15 years of service along with consequential benefits including revision of pay scale.

5. The petitioners had challenged the reference made by the Govt. of NCT on the ground that the work of Anganwari worker is honorary in nature and are they are paid honorarium for their voluntary service. It is stated that the post of Supervisor is not a promotional post. As per the Recruitment Rules for the post of Supervisor, is a direct recruitment post, effected through DSSSB. However, prior to 2004, the selection was done on the basis of personal interview conducted by Selection Committee for which the applicants were called through Employment Exchange. They would further state that as per the Recruitment Rules

the age limit for direct recruitment as Supervisor (Women) is 27 years and is relaxed in case of an Anganwari worker, subject to a maximum of 15 years. It is also stated that as per the Recruitment Rules, there is a provision of reservation of 25% of total posts of Supervisor (Women) for Anganwari workers who are matriculate and fulfil the above requirements.

6. The Tribunal framed two issues, the first one being, whether the claim of the respondents has been properly espoused by the Union; and the second one being, as per the terms of reference.

7. The Industrial Tribunal on issue No. 1 has held that the Industrial Dispute has been properly espoused. On issue No. 2, the Tribunal was of the view that the promotion is a condition of service and the relaxation restricted to 15 years only for Anganwari workers to be promoted as Supervisor (Women) is void under Section 23 of the Contract Act, 1872 as the same is against public policy. According to the Tribunal, the age relaxation should be for full period of service as Anganwari worker.

8. The learned counsel for the petitioner would urge that the Tribunal has exceeded its jurisdiction and granted relief which was not even prayed for by the respondents in their claim petitions. He would further submit that the recruitment to the post of Supervisor (Women) has to be in accordance with the Recruitment Rules notified in the year 2007 by the Department of Social Welfare, Govt. of NCT of Delhi. According to him, the Recruitment Rules stipulate a female, who is a matriculate having 10 years of experience as an Anganwari worker, could apply for the post of Supervisor (Women). He would also submit that the relaxation, over and above the maximum age is of 15 years. In other words, till the age of 42, an Anganwari worker can be appointed as a

Supervisor (Women). In the case of the respondents, they being over age i.e. beyond the age of 42 years, they cannot be considered for direct recruitment. He says the Tribunal could not have interfered with the policy of framing Recruitment Rules to the post of Supervisor (Women) and prays for setting aside the order of the Tribunal.

9. On the other hand, Mr. Varun Prasad, learned counsel for the respondents would rely upon the judgment of the Supreme Court in Writ Petition (Civil) No. 1319/89 decided on October 11, 1993 wherein the Supreme Court directed the respondents in that case to consider the case of the petitioner Ms. Kamla Chaudhary for regularization, waiving the requirement of coming through Employment Exchange. The question of her further promotion was directed to be considered from the date of her regularization in service. Mr. Varun Prasad would state the respondents are also entitled to the same relief.

10. On this, the learned counsel for the petitioner would submit that the order of the Supreme Court was of the year 1989. According to him, Rules have been notified in the year 2007, thereafter, it would be Rules governing to the post of Supervisor (Women), which shall govern the appointment.

11. Having considered the rival submissions, I agree with the learned counsel for the petitioner that the recruitment to the post of Supervisor (Women) has to be regulated in terms of the Recruitment Rules notified in the year 2007. The mode of recruitment is through direct recruitment which includes a female matriculate having 10 years of experience as Anganwari worker subject to relaxation of 15 years in the upper age limit. Since the respondents herein are over age, they cannot be considered for promotion to the post of Supervisor (Women). The

Tribunal had committed an error by holding the clause of relaxation as unconscionable. I find such a prayer was not even sought for by the respondents in their claim petitions. The Tribunal even on that account has enlarged the scope of the reference. In any case, prescribing a particular eligibility is in the domain of the Executive and the Courts cannot interfere with the same unless and until it is arbitrary, violative of Article 14 of the Constitution of India, that too, when a prayer is specifically made challenging the vires of a Rule. It is a settled law that recruitment has to be made in terms of the Rules as in vogue. The Supreme Court in the case of Rajasthan Public Service Commission Vs. Kaila Kumar Paliwal and Another, (2007) 10 SCC 260 has held as under:

"20. A person in order to be considered for promotion to a higher post must possess the essential qualification. If he does not do so, he cannot be considered therefor. Even the Selection Committee in absence of any express power conferred upon it cannot relax such essential qualification. [See J.C. Yadav v. State of Haryana and Bhanu Prasad Panda (Dr.) vs. Chancellor, Sambalpur University]".

12. The impugned orders of the Tribunal dated April 03, 2012, in all the writ petitions need to be set aside. I order accordingly.

13. During the submissions, Mr. Varun Prasad would highlight the fact that the respondents are stagnating on the same post with the same scale (except the revision of pay scale). He would submit if an observation is made by this Court that in the eventuality, a representation

is made by the respondents seeking a financial upgradation, the same shall be considered by the Authority in accordance with the Rules and Instructions. I find the prayer is an innocuous one. The respondents would be at liberty to make a representation to the authorities seeking the benefit of financial upgradation. If such a representation is made, the same shall be considered by the authorities in accordance with the Rules and Instructions.

14. With the above observations, the writ petitions are disposed of.

15. No costs.

CM Nos. 1405, 1407, 1409 &1411 of 2013

In view of the order in the writ petitions, the applications are disposed of as infructuous.

(V.KAMESWAR RAO) JUDGE

FEBRUARY 12, 2014 akb