DELHI SUBORDINATE SERVICES SELECTION BOARD & ANR. versus SEEMA KAPOOR on 22 July 2021

1. The challenge in the present appeal is to an order passed by theCDelhi High Court on 20.2.2019 affirming the order passed by the CentralAdministrative Tribunal, Principal Bench, New Delhi on 5.9.2018 wherebyan original application (OA) filed by the respondent herein was allowed,holding that she was entitled to age relaxation of five years forappointment to the post of PGT (English) Female.

2. The respondent is serving as Teacher (Primary) in South DelhiDMunicipal Corporation[1] since 7.4.2006. The appellant invited applicationsfor various posts including the post of PGT (English) Female, Post CodeNo. 133/2012, vide Advertisement No. 2/2012. The age limit as per theadvertisement in respect of the post for which the respondent was anapplicant reads thus:E“Age Limit: Below 36 years & relaxable in case of Govt. Servantand departmental candidates upto 05 years in accordance withthe instructions or orders issued by the Central Government. Thispost is identified as suitable for OH/VH persons only as per theRequisition of the User Department.”F3. The respondent’s date of birth is 10.2.1976 and on the closingdate of the receipt of the applications i.e. 15.6.2012, she was more than36 years of age. The learned Tribunal allowed the OA filed by therespondent holding that she was entitled to age relaxation as theCorporation falls under the ambit of Government Organisation. It is theGsaid order which was affirmed by the High Court.

4. It is admitted by Mr. Jha, learned counsel for the respondent,that the reproduction by the High Court from the advertisement asmentioned in para 4 is a condition in respect of a subsequent selectionprocess initiated vide advertisement in the year 2016.

H1 For short, the ‘Corporation’

5. Learned counsel for the appellants argued that as per theconditions of advertisement, the age could be relaxed in case ofGovernment servants and departmental candidates. It is argued that therespondent is not a government servant nor a departmental candidate,therefore, the benefit of age relaxation is not permissible. It is also arguedthat the Circular of the Government of India dated 27.3.2012 in respectof relaxation of upper age limit allowed to various categories of variousGovernment servants are applicable only to Central Government civilianemployees holding civil posts and are not applicable to the personnelworking in the autonomous/statutory bodies, public sector undertakingsetc. which are governed by regulations/statutes issued by the concernedadministrative Ministries/Departments. The relevant clause reads asunder:

“3. These instructions are applicable only to Central GovernmentCivilian Employees holding Civil posts and are not applicable topersonnel working in autonomous/statutory bodies, public sectorundertakings etc. which are governed by regulations/statute issuedby the concerned administrative Ministries/Departments. In certaincases the benefit of age relaxation, was allowed to a specifiedcategory of personnel for a limited period. The validity of relaxationin such cases will be for the period specified in the originalinstructions or as amended from time to time.

In case of recruitment through the UPSC and the Staff SelectionCommission (SSC), the crucial date for determining the age-limitshall be as advertised by UPSC/SSC. The crucial date fordetermining age for competitive examination held by UPSC/SSCis fixed as per the instructions in this Department’s O.M. No.42013/1/79-Estt.(D) dated 4.12.1979 and O.M. No. AB. 14017/70/87-Esst.(RR) dated 14.07.1988.”

6. It is also argued that in terms of judgment of this Court in JaiPrakash Wadhwa & Ors. v. Lt. Governor, Delhi Admn. & Anr.[2],Assistant Teachers in the Municipal Corporations are not governmentservants holding a post in a substantive, temporary or officiating capacity.In the aforesaid case, the appellants were employed as AssistantTeachers in the schools run by the Municipal Corporation. Such schoolswere taken over by Delhi Administration in 1970. The appellants soughtfixation of pay in terms of provisions of Fundamental Rule 22-C. Such AB

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Aclaim was negated by this Court on the ground that teachers in theMunicipal Corporation are not the government servants. This Court heldas under:

“5. Fundamental Rule 22-C, in its own terms is restricted in itsapplication to a government servant holding a post in a substantive,Btemporary or officiating capacity, who is promoted or appointedin a substantive, temporary or officiating capacity to another postcarrying duties and responsibilities of greater importance than thoseattached to the post held by him. The appellants were employeesof the Municipal Corporation and were not government servantsand since they were not government servants they could not invokeCthe protection of Fundamental Rule 22-C.”

7. On the other hand, Mr. Jha argued that the respondent is adepartmental candidate working with the Corporation which is evidentfrom the “Recruitment Rules for the post of Trained Graduate Teacher(MIL) under the Directorate of Education, Delhi Administration, Delhi”[3]Dnotified on 30.12.1992 wherein Assistant Teachers are eligible forpromotion. It is thus contended that as a teacher working in theCorporation, she has a right to be promoted under the State Government.Therefore, the respondent falls in the feeder cadre leading to inferencethat she is a departmental candidate.E

8. We have heard learned counsel for the parties and find that theorder passed by the Central Administrative Tribunal and that of the HighCourt are not sustainable. Firstly, the High Court has quoted a wrongprovision in the order passed relating to subsequent advertisement.Secondly, the benefit of age relaxation is permissible for governmentFservants and departmental candidates. It is not even the stand of therespondent that she is a government servant and, rightly so, as she isemployed in an autonomous body i.e. Municipal Corporation establishedunder a specific statute. The expression ‘Departmental Candidates’ isin respect of the candidates who are working in the concernedDepartment i.e. Education. The Circular of the Government of IndiaGdated 27.3.2012 has made it explicitly clear that the benefit of agerelaxation is only meant for civil employees of the Central Governmentand not to the employees of the autonomous bodies, public sectorundertakings etc. Therefore, the respondent, as an employee of the H3 Hereinafter referred to as Recruitment Rules autonomous body, i.e. the Corporation, is not entitled to age relaxationeither as a departmental candidate or as a government servant.

9. The argument that the respondent is in the feeder cadre andshould be treated as a departmental candidate is again not sustainable.The Recruitment Rules mentioned by the respondent provides a promotionchannel to the teachers working in the Municipal Corporation. Suchchannel of promotion is in no way comparable for appointment to thepost as direct recruit. The respondent would be entitled to be consideredfor promotion in terms of the statutory rules on the basis of her seniority.Therefore, the respondent is not entitled to age relaxation as she cannotbe considered as a departmental candidate for appointment by way ofdirect recruit.

10. Consequently, the appeal is allowed. The orders passed bythe High Court and that of Central Administrative Tribunal are herebyset aside.

Divya Pandey

Appeal allowed.

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