Full Judgment Text
* 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
W.P.(C.) No.1035/2014 Page 1 of 8
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
W.P.(C.) No.1035/2014 Page 2 of 8
1. Scheduled Caste and
Scheduled Tribes
05 years
2. Other Backward Class 03 years
3. Persons with disabilities 10 years
4. SC/ST Persons with
disabilities
15 years
5. OBC Persons with
disabilities
13 years
6. Departmental candidate
with atleast three years
service in Central
Govt./Govt. of Delhi
Upto 05 years for Group ‘B’
posts (which are in the same
line or allied cadres and where
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
“C” Posts)
Military services plus three
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
W.P.(C.) No.1035/2014 Page 3 of 8
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.
W.P.(C.) No.1035/2014 Page 4 of 8
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
W.P.(C.) No.1035/2014 Page 5 of 8
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
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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
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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
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