$-7,8&11 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.( ) 8523/2010 CHIEF ECRETARY GOVT. OF NCT OF DE HI & ANR. Through: ..... Petitioners Ms.Zubeda Begum, Advocate with Ms.Sana Ansari, Advocate versus M5.5A IKA GUPTA & ANR. .. ... Respondents Through: Mr.Raunak Jain, Advocate for R- 1/caveator W.P.( ) 8524/2010 Mr.Mukesh Gupta, Advocate with Mr.5umit Gupta, Advocate for R-2 GOVT. OF NCTOF DELHI & ANR. . .... Petitioners Through: Ms.Zubeda Begum, Advocate with Ms.Sana Ansari, Advocate versus 5H.VI OD KUMAR GARG & ANR. .. ... Respondents Through: Mr.K.Venkatraman, Advocate for R- 1/caveator W.P.(C) 8545/2010 D555 & ANR. Through: Mr.Mukesh Gupta, Advocate with Mr.5umit Gupta, Advocate for R-2 .. ... Petitioners Ms.Zubeda Begum, Advocate with Ms.Sana Ansari, Advocate versus 5H.VI OD KUMAR GARG & ANR. .. ... Respondents Through: Mr.Raunak Jain, Advocate for R-1 to R-5/caveators W.P.(C) No.852 /2010, 8524/2010 & 8545/2010 Page 1 of9 I ----- ----··---- .. ·····--l-... 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 Ms.Neelam Tiwary, Advocate for Ms.Saroj Bidawat, Advocate for R-6 COR M: HON BLE MR. JUSTICE PRADEEP NANDRAJOG HON BLE MR. JUSTICE SIDDHARTH MRIDUL ORDER % 22.12.2010 Caveat No. No.8523 2010 Caveat No. No.8524 2010 Caveat No. No.8545 2010 ince counsel as above appears for the caveators in ned petitions the caveats are discharged. CM No.217 7 2010 in W.P. C No.8523 2010 CM No.217 9 2010 in W.P. C No.8524 2010 CM No.218 2 2010 in W.P. C No.854S 2010 llowed subject to just exceptions. CM No.217 6 2010 in W.P. C No.8523 2010 CM No.217 8 2010 in W.P. C No.8524 2010 CM No.218 1 2010 in W.P. C No.8545 2010 ince the writ petitions have been heard for disposal with consent of learned counsel for the parties, above capt oned applications which seek interim stay of the impugned rder pending final hearing of the writ petitions are W.P. C No.8524 2010 & W.P. C 1. counsel for the contesting respondent i.e. the applica ts before the Tribunal state that the real issue W.P.(C) No.8523 2010, 8524/2010 & 8545/2010 Page 2 of 9 ---·- ------ ---·-------+---------- raised by th m 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 b fore the Tribunal for fresh adjudication. 3. I the impugned decisions the Tribunal has held that case of insidious discrimination if benefit granted n Bench of this Court which was restricted to candidates ho had completed or were enrolled for the ETE course in t e year 2006, 2007 or 2008, is not extended to the Tribunal has noted that it was following its decision dated 18.3 2009 allowing OA No.2983/2009 filed by one Parul Dhingra. he decision of the Tribunal in Parul Dhingra's case was overru ed by a Division Bench of this Court vide order dated 2.11.2010 n W.P.(C) No.4677/2010 05558 Vs. Parul Dhingra & Anr. The d cision reads as under:- 1. ide impugned judgment and order dated 18.3. 010, purporting to follow the ratio of law laid down by this Court in W.P.(C) No.7297/2007 5achin Gu t & Ors. Vs. 05558 & Ors., the Tribunal has held that he respondent Parul Dhingra would be entitled to be a pointed as an Assistant Teacher (Primary) under the unicipal Corporation of Delhi. 2. Parul Dhingra had sought appointment as an Assi tant Teacher (Primary) in response to an adv rtisement No.8 dated 6-12 October 2007 and it is not in dispute that she was aged more than 27 years as n date of the advertisement. That she had obtained ETE Diploma in the year 2002 is also not in disp te. It may be noted that Parul Dhingra was born on 3.1.1979. 3. As per the advertisement the maximum age for W.P.(C) No.8 23/2010,8524/2010 & 8545/2010 Page 3 of9 ------- --------- ... -.......... _..,.. eligibil"ty was 27 years and thus, as per the advert sement Parul Dhingra was overage. Being a candid te in the general category, Parul Dhingra is admitt dly not entitled to any age relaxation. 4. the issue of educational qualifications essen ial to be appointed as an Assistant Teacher (Primary), there is no dispute qua Parul Dhingra's eligibi ity. 5. nly issue was, whether she was overage. 6. ccording to Parul Dhingra she was entitled to the b nefit of the decision dated 28.8.2008 in Sachin Gu 's case (supra). 7. ssue which arose for consideration in Sachin Gu t 's case, relevant for the purposes of adjudication of th claim of Parul Dhingra is that prior to a notifi ation issued by the Department of Urban Deve opment on 13.7.2007 concerning the post of Assis ant Teacher (Primary) under the Municipal Corp ration of Delhi the maximum age limit pres ribed was 32 years for male candidate and 42 year for female candidates. By and under the notifi ation in question the age was prescribed as 27 year , both for male and female candidates. 8. Various candidates challenged the notification and uestioned the prescription of the maximum age limit to. be 27 years. We may note that there were othe issues pertaining to other eligibility conditions whic also got changed and in respect whereof deci ion was pronounced in Sachin Gupta's case, but sine the same are not in issue in the instant case, we igno e 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.8 23/2010, 8524/2010 & 8545/2010 Page 4 of 9 I --:-··-····· . :-::- the n tification dated 13.7.2007. However, with respec to candidates who had completed the ETE course or were enrolled for the said course only during the ye rs 2006 or 2007 or 2008 it was directed, in para 6 as under:- "6 To conclude, the language and marks cri eria (namely passing of Hindi subject at pr mary level and minimum SOo/o marks in se ior secondary examination) are upheld in th ir entirety. Even the age criteria (namely m nimum and maximum eligibility age as 20-27 y ars respectively) is upheld but with a view to a eliorate the hardship of already enrolled st dents in ETE courses, it is directed that the r spondents would permit all those candidates w o have completed the ETE course either in t e year 2006 or 2007 or 2008 to appear in the e amination conducted by the Respondents for t e posts of Assistant Teachers (Primary) once e ch of the Respondents i.e. MCD and Govt. of N T of Delhi provided they do not exceed the u per age limit of 32 years for males and 42 y ars for females and also fulfill all other e igibility conditions. This would also apply to c ndidates, who have already taken the e amination as permitted by this Court. This r laxation will be independent of the relaxation applicable to reserved categories. However, t e Relaxation will be independent of the r laxation applicable to reserved categories. owever, the Relaxation granted by this Court hall ceases to operate for ETE courses after 008 i.e. commencing from 2009 as from 3Qth eptember, 2007 the maximum age limit for TE course has been reduced from 30 years to 4 years. Except to the above extent, legality nd validity of the impugned RRs are upheld nd accordingly the entire batch of writ etitions are disposes of in the above terms W.P.(C) No.85 3/2010, 8524/2010 & 8545/2010 Page 5 of 9 ----------···-------······--· wit no order as to costs." 10. T e direction was issued following the ratio of law laid down in the decision reported as Anuj /ohri Vs. UOI & rs. 2005 Ill AD (Delhi) 614. 11. 5 ffice would it be to state that the ratio of law is that c ndidates who had completed the ETE course either n the years 2006 or 2007 or were enrolled for the ET course in the year 2008, undertook the course on th legitimate expectation that they would be eligibl to be appointed as Assistant Teacher (Primary) as lon as males had not crossed the age of 32 years and f males had not crossed the age of 42 years. It was t us held that to ameliorate the hardship to only such candidates i.e. those who had enrolled and obtai ed 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. s regards the others, no such equity was found. It rna be true that Parul Dhingra, who obtained the ETE iploma in the year 2002 may have thought that she ould 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 th law being that nobody has a vested right to be app inted to a post under the Government and it is within the domain of the executive to prescribe and arne d the eligibility conditions, including age limit, no relie can be granted to Parul Dhingra. 13. The writ petition is accordingly allowed. Imp gned order and judgment dated 18.3.2009 is set asid . OA No.2983/2009 is dismissed. 14. No costs." 4. Sh.Raunak Jain counsel appearing for the contesting. respond nt in W.P.(C) No.8523/2010 and W.P.(C) No.8545/2010 W.P.(C) No. 523/2010,8524/2010 & 8545/2010 Page 6 of 9 __.--I states that t e case projected by his clients before the Tribunal was not of a y insidious discrimination as held by the Tribunal but his clien s had pleaded entitlement to the same benefit as was granted by the Division Bench of this Court to those who had comple ed the ETE course or had enrolled for said course during the ears 2006, 2007 and 2008 on the pleadings as under:- " It is respectfully submitted that discrimination betwe n the candidates of 2005 and 2006 despite the said c ndidates having equal opportunity to appear for exam by creating a separate category, while at the same time ignoring others who are similarly and identi ally placed is violative of constitutional mand tes of parity, equality and right to livelihood as contained in Article 14, 16 and 21 of the Constitution of lnd a. It al o a rather piquant position which can be expla ned as under- (a) Results of the candidates who appeared for the ETE/JBT examination in the year 2005 were notified on 23.08.2005. (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 examination was 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. 7.2006 vide Post Code No.01/06. Thereafter the Ho 'ble Court in various petitions filed before it Page 7 of9 W.P.(C) No.8523/2010, 8524/2010 & 8545/2010 I -------·--------······-'-· - ( ' '6 granted leave to candidates who appeared for the ETE/JBT examination in the year 2005 as well as 2006, to pr visionally appear for the examinations conduc ed by the Respondents vide Post Code No.57/ 6, 164/07 and 165/07. However, in terms of the ord r of this Hon'ble Court dated 28.08.2008, the Respon ents have only considered the candidature of person who appeared for the ETE/JBT examination in 2006, 007 and 2008, leaving the candidates who appea d for the ETE/JBT examination in 2005 compl te darkness. This exclusion of candidates who appea ed for the ETE/JBT examination in 2005 by the Respo dents is contrary to the treatment meted out to candi ates who appeared for the ETE/JBT examination in 2006, while the candidates of 2005 and 2006 have from he beginning, been similarly placed in fact and in law For t e sake of convenience and for purposes of illustr tion, a chart is being annexed hereto showing overa e 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 Resp ndents and have received equal opportunities to appe r for examinations vis-a-vis the Applicant. The char is being marked and annexed hereto as Ann xure A-10. Such discrimination is not based on an r asonable criteria and void of any reasonable nexus." 5. Counsel concedes that the Tribunal has not dealt with s was projected by him and for said reason, as noted hereinab ve, counsel desires the matter to be remanded to the Tribunal. 6. Likewise Sh.K.Venkatraman learned counsel for the respondent in W.P.{C) No.8524/2010 states that the issue rai ed by his client have not been dealt with. W.P.(C) No. 523/2010, 8524/2010 & 8545/2010 Page 8 of 9 r--·- -- i.. 7. Accordingly, with consent of parties we set aside the impugned orders dated 8.7.2010, 12.7.2010 and 8.7.2010 respectiv ly challenged in the 3 captioned writ petitions and restore c rresponding Original Application decided by the Tribunal ide 3 orders, requiring the Tribunal to re-decide the matter u ged before it and while so doing take note of the decision of the Division Bench of this Court in W.P.(C) No.4677 I 010 which has been extracted hereinabove. 8. No costs. SIDDHARTH MRIDUL, J. DECEMB R 22, 2010 mm £ _/ _,.,_/ lc - r r0 J- C M 6V • -/l Y '' W.P.(C) No.8 23/2010, 8524/2010 & 8545/2010 - --·---· )- L -/ o -(? !.; Page 9 of 9 ' .. L---