DELHI SUBORDINATE SERVICES SELECTION BOARD & ANR.versusSEEMA KAPOOR

                         [2021] 6 S.C.R. 517                              517


        DELHI SUBORDINATE SERVICES SELECTION                              A
                   BOARD & ANR.
                                  v.
                         SEEMA KAPOOR
                   (Civil Appeal No. 4461 of 2021)                        B
                           JULY 22, 2021
   [SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]
      Service Law – Age relaxation – When not entitled to –
Applications invited by appellant for various posts including the
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post of PGT (English) Female – As per the advertisement, age
relaxation of five years permissible for Govt. Servant and
departmental candidates – Claimed by Respondent, a Teacher
(Primary) in South Delhi Municipal Corporation – OA allowed by
CAT, Principal Bench, New Delhi – Affirmed by High Court – Held:
Respondent, as an employee of the autonomous body i.e. the                D
Corporation, is not entitled to age relaxation either as a departmental
candidate or as a government servant – Further, the Circular of the
Government of India dtd. 27.3.12 made it 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,
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public sector undertakings etc. – High Court quoted a wrong
provision relating to subsequent advertisement – Respondent not
entitled to age relaxation as she cannot be considered as a
departmental candidate for appointment by way of direct recruit –
Orders passed by the High Court and Central Administrative
Tribunal, set aside.                                                      F
       Jai Prakash Wadhwa & Ors. vs Lt. Governor, Delhi
       Admn. & Anr. (1997) 11 SCC 174 – referred to.
                       Case Law Reference
       (1997) 11 SCC 174               referred to       Para 6           G
       CIVIL APPELLATE JURISDICTION: Civil Appeal No.4461 of
2021
      From the Judgment and Order dated 20.02.2019 of the High Court
of Delhi at New Delhi in W.P. (C) No.1738 of 2019.
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                                 517
518                SUPREME COURT REPORTS                        [2021] 6 S.C.R.


A           Madhvi Divan, ASG, Ayush Puri, Sanjeev Prakash Upadhyay, Jay
      Anant Dehadrai, Sidharth Arora, B. V. Balaram Das, Advs. for the
      appellants.
             Somesh Chandra Jha, Umesh P. Wadhwani, Rahul Narang, Advs.
      for the respondent.
B               The Order of the Court was passed by
                HEMANT GUPTA, J.
                Leave granted.
             1. The challenge in the present appeal is to an order passed by the
C     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 respondent herein was allowed,
      holding that she was entitled to age relaxation of five years for
      appointment to the post of PGT (English) Female.
             2. The respondent is serving as Teacher (Primary) in South Delhi
D
      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:
E               “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.”
F            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
G     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.
      1
H         For short, the ‘Corporation’
        DELHI SUBORDINATE SERVICES SELECTION BOARD v.                             519
               SEEMA KAPOOR [HEMANT GUPTA, J.]

       5. Learned counsel for the appellants argued that as per the               A
conditions of advertisement, the age could be relaxed in case of
Government servants and departmental candidates. It is argued 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
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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               C
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       D
         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.
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         In case of recruitment through the UPSC and the Staff 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/              F
         70/87-Esst.(RR) dated 14.07.1988.”
       6. It is also argued that in terms of judgment of this Court in Jai
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.      G
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
2
    (1997) 11 SCC 174                                                             H
520                 SUPREME COURT REPORTS                          [2021] 6 S.C.R.


A     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,
B               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
C               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
D     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 under the State Government.
      Therefore, the respondent falls in the feeder cadre leading to inference
      that she is a departmental candidate.
E            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
F     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
G     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

      3
H         Hereinafter referred to as Recruitment Rules
      DELHI SUBORDINATE SERVICES SELECTION BOARD v.                             521
             SEEMA KAPOOR [HEMANT GUPTA, J.]

autonomous body, i.e. the Corporation, is not entitled to age relaxation        A
either as a departmental candidate or as a government servant.
       9. The argument that the respondent is in the feeder cadre and
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              B
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.                                                                 C

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

Divya Pandey                                                  Appeal allowed.
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