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Supreme Court of India
Delhi Subordinate Services … vs Seema Kapoor on 22 July, 2021Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Hemant Gupta
REPORTABLE
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.
1
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’
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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
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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
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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
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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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