Delhi Subordinate Services Selection Board & Anr. vs Seema Kapoor

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4461 OF 2021 (ARISING OUT OF SLP (CIVIL) NO. 19968 OF 2019)

DELHI SUBORDINATE SERVICES SELECTION BOARD & ANR. .....APPELLANT(S)

VERSUS

SEEMA KAPOOR .....RESPONDENT(S)

ORDER

HEMANT GUPTA, J.

Leave granted.

1. The challenge in the present appeal is to an order passed by the

Delhi High Court on 20.2.2019 affirming the order passed by the

Central Administrative Tribunal, Principal Bench, New Delhi on

5.9.2018 whereby an original application (OA) filed by the Signature Not Verified respondent herein was allowed, holding that she was entitled to Digitally signed by RASHI GUPTA Date: 2021.07.28

age relaxation of five years for appointment to the post of PGT 16:13:15 IST Reason:

(English) Female.

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2. The respondent is serving as Teacher (Primary) in South Delhi

Municipal Corporation1 since 7.4.2006. The appellant invited

applications for various posts including the post of PGT (English)

Female, Post Code No. 133/2012, vide Advertisement No. 2/2012.

The age limit as per the advertisement in respect of the post for

which the respondent was an applicant reads thus:

“Age Limit: Below 36 years & relaxable in case of Govt. Servant and departmental candidates upto 05 years in accordance with the instructions or orders issued by the Central Government. This post is identified as suitable for OH/VH persons only as per the Requisition of the User Department.”

3. The respondent’s date of birth is 10.2.1976 and on the closing date

of the receipt of the applications i.e. 15.6.2012, she was more than

36 years of age. The learned Tribunal allowed the OA filed by the

respondent holding that she was entitled to age relaxation as the

Corporation falls under the ambit of Government Organisation. It is

the said 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 as

mentioned in para 4 is a condition in respect of a subsequent

selection process initiated vide advertisement in the year 2016.

5. Learned counsel for the appellants argued that as per the

conditions of advertisement, the age could be relaxed in case of

Government servants and departmental candidates. It is argued 1 For short, the ‘Corporation’

2 that the respondent is not a government servant nor a

departmental candidate, therefore, the benefit of age relaxation is

not permissible. It is also argued that the Circular of the

Government of India dated 27.3.2012 in respect of relaxation of

upper age limit allowed to various categories of various

Government servants are applicable only to Central Government

civilian employees holding civil posts and are not applicable to the

personnel working in the autonomous/statutory bodies, public

sector undertakings etc. which are governed by

regulations/statutes issued by the concerned administrative

Ministries/Departments. The relevant clause reads as under:

“3. These instructions are applicable only to Central Government Civilian Employees holding Civil posts and are not applicable to personnel working in autonomous/statutory bodies, public sector undertakings etc. which are governed by regulations/statute issued by the concerned administrative Ministries/Departments. In certain cases the benefit of age relaxation, was allowed to a specified category of personnel for a limited period. The validity of relaxation in such cases will be for the period specified in the original instructions or as amended from time to time.

In case of recruitment through the UPSC and the Staf Selection Commission (SSC), the crucial date for determining the age-limit shall be as advertised by UPSC/SSC. The crucial date for determining age for competitive examination held by UPSC/SSC is 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 Jai

3 Prakash Wadhwa & Ors. v. Lt. Governor, Delhi Admn. & Anr.2,

Assistant Teachers in the Municipal Corporations are not

government servants holding a post in a substantive, temporary or

officiating capacity. In the aforesaid case, the appellants were

employed as Assistant Teachers in the schools run by the Municipal

Corporation. Such schools were taken over by Delhi Administration

in 1970. The appellants sought fixation of pay in terms of

provisions of Fundamental Rule 22-C. Such claim was negated by

this Court on the ground that teachers in the Municipal Corporation

are not the government servants. This Court held as under:

“5. Fundamental Rule 22-C, in its own terms is restricted in its application to a government servant holding a post in a substantive, temporary or officiating capacity, who is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him. The appellants were employees of the Municipal Corporation and were not government servants and since they were not government servants they could not invoke the protection of Fundamental Rule 22-C.”

7. On the other hand, Mr. Jha argued that the respondent is a

departmental candidate working with the Corporation which is

evident from the “Recruitment Rules for the post of Trained

Graduate Teacher (MIL) under the Directorate of Education, Delhi

Administration, Delhi”3 notified on 30.12.1992 wherein Assistant

Teachers are eligible for promotion. It is thus contended that as a

teacher working in the Corporation, she has a right to be promoted

2 (1997) 11 SCC 174 3 Hereinafter referred to as Recruitment Rules

4 under the State Government. Therefore, the respondent falls in the

feeder cadre leading to inference that she is a departmental

candidate.

8. We have heard learned counsel for the parties and find that the

order passed by the Central Administrative Tribunal and that of the

High Court are not sustainable. Firstly, the High Court has quoted a

wrong provision in the order passed relating to subsequent

advertisement. Secondly, the benefit of age relaxation is

permissible for government servants and departmental candidates.

It is not even the stand of the respondent that she is a government

servant and, rightly so, as she is employed in an autonomous body

i.e. Municipal Corporation established under a specific statute. The

expression ‘Departmental Candidates’ is in respect of the

candidates who are working in the concerned Department i.e.

Education. The Circular of the Government of India dated

27.3.2012 has made it explicitly clear that the benefit of age

relaxation is only meant for civil employees of the Central

Government and not to the employees of the autonomous bodies,

public sector undertakings etc. Therefore, the respondent, as an

employee of the autonomous body, i.e. the Corporation, is not

entitled to age relaxation either as a departmental candidate or as

a government servant.

9. The argument that the respondent is in the feeder cadre and

5 should be treated as a departmental candidate is again not

sustainable. The Recruitment Rules mentioned by the respondent

provides a promotion channel to the teachers working in the

Municipal Corporation. Such channel of promotion is in no way

comparable for appointment to the post as direct recruit. The

respondent would be entitled to be considered for promotion in

terms of the statutory rules on the basis of her seniority. Therefore,

the respondent is not entitled to age relaxation as she cannot be

considered as a departmental candidate for appointment by way of

direct recruit.

10. Consequently, the appeal is allowed. The orders passed by the

High Court and that of Central Administrative Tribunal are hereby

set aside.

.............................................J. (SANJAY KISHAN KAUL)

.............................................J. (HEMANT GUPTA)

NEW DELHI;

JULY 22, 2021.

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