r > V- $-7, 8 & 11 * IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 8523/2010 CHIEF SECRETARY GOVT. OF NCT OF DELHI & ANR. Petitioners Through; Ms.Zubeda Begum, Advocate with jVjs.Sana Ansari, Advocate versus MS.SARIKA GUPTA & ANR. Respondents Through: Mr.Raunak Jain, Advocate for R- 1/caveator Mr.Mukesh Gupta, Advocate with Mr.Sumit Gupta, Advocate for R-2 W.P.(C) 8524/2010 GOVT. OF NCTOF DELHI & ANR. Petitioners Through: Ms.Zubeda Begum, Advocate with Ms.Sana Ansari, Advocate versus SH.VINOD KUMAR GARG & ANR. Respondents Through: Mr.K.Venkatraman, Advocate for R- 1/caveator Mr.Mukesh Gupta, Advocate with Mr.Sumit Gupta, Advocate for R-2 W.P.(C) 8545/2010 DSSSB & ANR. ..... Petitioners Through: Ms.Zubeda Begum, Advocate with Ms.Sana Ansari, Advocate versus SH.VINOD KUMAR GARG & ANR. Respondents Through: Mr.Raunak Jain, Advocate for R-1 to R-5/caveators W.P.(C) No.8523/2010,8524/2010&8545/2010 Page1of9 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified -c- Ms.Neelam Tiwary, Advocate for Ms.Saroj Bidawat, Advocate for R-6 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SIDDHARTH MRIDUL ORDER % 22.12.2010 Caveat No.289/2010 in W.P.fO No.8523/2010 Caveat No.290/2010 in W.P.fC) No.8524/2010 Caveat No.291/2010 in W.P.(C) No.8545/2010 Since counsel as above appears for the caveators in f the 3 captioned petitions the caveats are discharged. CM No.21797/2010 in W.P.(C) No.8523/2010 CM No.21799/2010 in W.P.(C) No.8524/2010 CM No.21822/2010 in W.P.(C) No.8545/2010 Allowed subject to just exceptions. CM No.21796/2010 in W.P.(C) No.8523/2010 CM No.21798/2010 in W.P.(C) No.8524/2010 CM No.21821/2010 in W.P.(C) No.8545/2010 > u Since the writ petitions have been heard for disposal today itself with consent of learned counsel for the parties, above captioned applications which seek interinn stay of the impugned order pending final hearing of the writ petitions are dismissed as infructuous. W.P.fC) No.8523/2010. W.P.fC) No.8524/2010 & W.P.(C) No.8545/2010 1. Learned counsel for the contesting respondent i.e. the applicants before the Tribunal state that the real issue W.P.(C)No.8523/2010,8524/2010&8545/2010 Page2of9 raised by them before the Tribunal has not been decided and thus request that the matter be remanded to the Tribunal. 2. A word needs to be penned by us before we remand the matter before the Tribunal for fresh adjudication. 3. In the impugned decisions the Tribunal has held that it would be a case of insidious discrimination if benefit granted by a Division Bench of this Court which was restricted to candidates who had completed or were enrolled for the ETE course in the year 2006, 2007 or 2008, is not extended to the others. The Tribunal has noted that it was following its decision dated 18.3.2009 allowing OA No.2983/2009 filed by one Parul Dhingra. The decision of the Tribunal in Parul Dhinara's case was overruled by a DivisionBench of this Court vide order dated 2.11.2010 in W.P.(C) No.4677/2010 DSSSB Vs. Parul Dhinara & Ann The decision reads as under:- 1. Vide impugned judgment and order dated 18.3.2010, purporting to follow the ratio of law laid down by this Court in W.P.(C) No.7297/2007 Sachin Guota & Ors. Vs. DSSSB & Ors.. the Tribunal has held that the respondent Parul Dhingra would be entitled to be appointed as an Assistant Teacher (Primary) under the Municipal Corporation of Delhi. 2. Parul Dhingra had sought appointment as an Assistant Teacher (Primary) in response to an advertisement No.8 dated 6-12 October 2007 and it is not in dispute that she was aged more than 27 years as on date of the advertisement. That she had obtained ETE Diploma in the year 2002 is also not in dispute. It may be noted that Parul Dhingra was born on 23.1.1979. 3. As per the advertisement the maximum age for W.P.(C)No.8523/2010,8524/2010&8545/2010 Page3of9 r- : 1 eligibility was 27 years and thus, as per the advertisennent Parul Dhingra was overage. Being a candidate in the general category, Parul Dhingra is admittedly not entitled to any age relaxation. 4. On the issue of educational qualifications essential to be appointed as an Assistant Teacher (Primary), there is no dispute qua Parul Dhingra's eligibility. 5. Only issue was, whether she was overage. 6. According to Parul Dhingra she was entitled to the benefit of the decision dated 28.8.2008 in Sach/n Gupta's case (supra). 7. Issue which arose for consideration in Sachin Gupta's case, relevant for the purposes of adjudication of the claim of Parul Dhingra is that prior to a notification issued by the Department of Urban Development on 13.7.2007 concerning the post of Assistant Teacher (Primary) under the Municipal Corporation of Delhi the maximum age limit prescribed was 32 years for male candidate and 42 years for female candidates. By and under the notification in question the age was prescribed as 27 years, both for male and female candidates. 8. Various candidates challenged the notification and questioned the prescription of the maximum age limit to be 27 years. We may note that there were other issues pertaining to other eligibility conditiohs which also got changed and in respect whereof decision was pronounced in Sachin Gupta's case, but since the same are not in issue in the instant case, we ignore them. 9. The Division Bench of this Court held that it was the prerogative of the executive to prescribe the maximum age and hence there was nothing illegal in W.P.(C)No.8523/2010,8524/2010&8545/2010 Page4of9 r the notification dated 13.7.2007. However, with respect to candidates who had completed the ETE course or were enrolled for the said course only during the years 2006 or 2007 or 2008 it was directed, in para 64 as under:- "64. To conclude, the language and nnarks criteria (nannely passing of Hindi subject at primary level and minimum 50% marks in senior secondary examination) are upheld in their entirety. Even the age criteria (namely minimum and maximum eligibility age as 20-27 years respectively) is upheld but with a view to ^ ameliorate the hardship of already enrolled students in ETE courses, it is directed that the respondents would permit all those candidates f who have completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the Respondents for the posts of Assistant Teachers (Primary) once each of the Respondents i.e. MCD and Govt. of NCT of Delhi provided they do not exceed the upper age limit of 32 years for males and 42 years for females and also fulfill all other eligibility conditions. This would also apply to candidates, who have already taken the ^ examinationas permitted by this Court. This relaxation will be independent of the relaxation applicable to reserved categories. However, the Relaxation will be independent of the relaxation applicable to reserved categories. -r: However, the Relaxation granted by this Court shall ceases to operate for ETE courses after 2008 i.e. commencing from 2009 as from 30'^'^ September, 2007 the maximum age limit for ETE course has been reduced from 30 years to 24 years. Except to the above extent, legality and validity of the impugned RRs are upheld and accordingly the entire batch of writ petitions are disposes of in the above terms W.P.(C)No.8523/2010,8524/2010&8545/2010 Page5of9 with no order as to costs." 10. The direction was issued following the ratio of law laid down in the decision reported as Anui lohri Vs. UOI & Ors. 2005 III AD (Delhi) 614. 11. Suffice would it be to state that the ratio of law is that candidates who had completed the ETE course either in the years 2006 or 2007 or were enrolled for the ETE course in the year 2008, undertook the course on the legitimate expectation that they would be eligible to be appointed as Assistant Teacher (Primary) as long as males had not crossed the age of 32 years and females had not crossed the age of 42 years. It was thus held that to ameliorate the hardship to only such candidates i.e. those who had enrolled and f obtained ETE diplomas in the year 2006, 2007 and 2008, equity required that qua them age limit would be 32 years for males and 42 years for females. 12. As regards the others, no such equity was found. It may be true that Parul Dhingra, who obtained the ETE diploma in the year 2002 may have thought that she could apply for and obtain appointment to the post of Assistant Teacher (Primary) at any point of time till she attained the age of 42 years, but in view of the law being that nobody has a vested right to be ^ appointed to a post under the Governmentand it is within the domain of the executive to prescribe and amend the eligibility conditions, including age limit, no relief can be granted to Parul Dhingra. C 13. The writ petition is accordingly allowed. Impugned order and judgment dated 18.3.2009 is set aside. OA No.2983/2009 is dismissed. 14. No costs." 4. Sh.Raunak Jain counsel appearing for the contesting respondent in W.P.(C) No.8523/2010and W.P.(C) No.8545/2010 W.P.(C)No.8523/2010,8524/2010&8545/2010 Page6of9 1 states that the case projected by his clients before the Tribunal was not of any insidious discrimination as held by the Tribunal but his clients had pleaded entitlement to the same benefit as was granted by the Division Bench of this Court to those who had completed the ETE course or had enrolled for said course during the years 2006, 2007 and 2008 on the pleadings as under:- "It is respectfully submitted that discrimination between the candidates of 2005 and 2006 despite the said candidates having equal opportunity to appear for ^ exams by creating a separate category, while at the same time ignoring others who are similarly and -r identically placed is violative of constitutional • mandates of parity, equality and right to livelihood as contained in Article 14, 16 and 21 of the Constitution of India. It also a rather piquant position which can be explained as under- (a) Results of the candidates who appeared for the ETE/JBT examination in the year 2005 were notified on 23.08;2005. V (b) Results of the candidates who appeared for the ETE/JBT examination in the year 2006 were notified on 24.05.2006. (c) Attention of this Hon'ble Court is drawn to the ^ fact that no examinationwas conducted by the • Respondents for recruitment to the post of Assistant Teacher between 23.08.2005 to 24.05.2006. It is respectfully submitted that the candidates of 2005 and 2006 both had similar opportunities to appear for the examination conducted by the Respondents on 02.07.2006 vide Post Code No.01/06. Thereafter the Hon'ble Court in various petitions filed before it W.P.(C)No.8523/2010,8524/2010&8545/2010 Page7of9 granted leave to candidates who appeared for the ETE/JBTexamination in the year 2005 as well as 2006, to provisionally appear for the examinations conducted by the Respondents vide Post Code No.57/06, 164/07 and 165/07. However, in terms of the order of this Hon'ble Court dated 28.08.2008, the Respondents have only considered the candidature of persons who appeared for the ETE/JBT-examinationin 2006, 2007 and 2008, leaving the candidates who appeared for the ETE/JBT examination in 2005 complete darkness. This exclusionof candidates who appeared for the ETE/JBT examination in 2005 by the Respondents is contrary to the treatment meted out to candidates who appeared for the ETE/JBTexamination in 2006, while the candidates of 2005 and 2006 have from the beginning, been similarly placed in fact and t; in law. For the sake of convenience and for purposes of illustration, a chart is being annexed hereto showing overage candidates who had cleared the ETE/JBT in 2006 and whose results had cleared the ETE/JBT in 2006 and whose results have been declared by the Respondentsand have receivedequal opportunitiesto appear for examinationsvis-a-visthe Applicant. The chart is being marked and annexed hereto as \ A.' Annexure A-10. Such discrimination is not based on ^ an reasonable criteria and void of any reasonable nexus." 5. Counsel concedes that the Tribunal has not dealt with the issue as was projected by him and for said reason, as noted hereinabove, counsel desires the matter to be remanded to the Tribunal. 6. Likewise Sh.K.Venkatraman learned counsel for the contestingrespondentin W.P.(C) No.8524/2010states that the issue raised by his client have not been dealt with. W.P.(C)No.8523/2010,8524/2010&8545/2010 Page8of9 7 Accordingly,with consent of parties we set aside the impugned orders dated 8.7.2010, 12.7.2010 and 8.7.2010 respectivelychallenged in the 3 captioned writ petitions and restore corresponding Original Application decided by the Tribunal vide 3 orders, requiring the Tribunal to re-decide the matter urged before it and while so doing take note of the decision of the Division Bench of this Court in W.P.(C) No.4677/2010 which has been extracted hereinabove. 8. No costs. 7M, ^ PRADEEP NANDRAJOG,J. r DECEMBER 22, 2010 mm SIDDhARTH MRIDUL, J. o / W.P.(C)No.8523/2010,8524/2010&8545/2010 Page9of9