By Hon’ble Mrs. Pratima K. Gupta, Member (J):-

1. The applicant in the instant OA is aggrieved by the rejection of her candidature for the post of Librarian under the Post Codes 69/10 and 02/13. She ventilates her grievance through the instant OA seeking the following relief(s):-

“(A) To issue necessary direction in favor of applicant and against the respondents No.1&2 to consider the age of the applicant/petitioner as applicant is a eligible candidate to the appointment for the post of Librarian vide post code No.02/13 under the post of directorate of education in Delhi government schools and to set aside/quash the impugned office order vide Dt19.02.2016 in the light of the order vide Dt02/09/2016 passed by the respondent No.2.

(B) To issue necessary direction in favor of the applicant against both the respondents 1&2 thereby directing to the said respondents to consider the marks of the applicant vide Roll No.69005734 post code No.69/10 into the post of Librarian vide post code No.02/13, due to common exam conducted by the respondent No.1 (DSSSB) and respondent No.1 issued one admit cards for the appearance of the candidates of the two post codes i.e. 69/10 and 02/13. As a eligible candidate with all complete necessary formalities whatever and to issue provisionally appointment order/letter to the applicant, in view of result notice No.516 (Part-11) Librarian (post code No.02/13, Directorate of education Got. of NCT of Delhi.

(C) To pass any other necessary directions to the respondents in favor of the petitioner against the respondents.”

to direct the respondents to consider the candidature of the Applicant for selection for the post of librarian by providing her the general age relaxation of 10 years for women candidates and place the name of the Applicant in the list of provisionally selected candidate alongwith names of other candidates already selected and recommended her name for appointment as the applicant has secured 117 marks which are more than the last UR candidate i.e. 113.0 and OBC 73.0 and the Applicant has all the qualifications as per Recruitment Rules.

(b) Direction to the respondents to pay cost of litigation to the Applicants as the Applicants have been dragged to the Tribunal by the respondents.

(C) Any other order as this Hon’ble Tribunal may deem fit under the present facts and circumstances of the case.”

2. Briefly narrated by the learned counsel for the applicant, the facts leading to the present OA are that the DSSSB issued an advertisement No.02/2010 inviting applications from eligible candidates for the post of Librarian in the Directorate of Education under Post Code 69/10. Thereafter, the DSSSB issued another advertisement No.01/13 on 20.03.2013, inviting applications from eligible candidates for the same post (Librarian) in the Directorate of Education under Post Code 02/13. The prescribed age limit as advised by the advertisement is 30 years and certain relaxations with respect to the age have been extended to different categories, in terms of the age relaxation clause provided in the advertisement notice itself. In response of these advertisements, the applicant applied under the UR category and appeared in the common test held for both these Post Codes i.e. 69/2010 and 02/13 on 31.08.2014. The applicant is stated to have secured 110 marks.

3. The mark list of both the Post Codes was uploaded on the website of DSSSB on 17.07.2015. On 17.08.2015, DSSSB issued Public Notice explaining, in case a candidate had applied for both the Post Codes but the name appeared in one mark list only, the candidate could make a representation up to 21.08.2015, for inclusion of his/her name in the other post code where his/her name may have been missed by the Recruiting Agency (DSSSB). The applicant immediately responded vide representation dated 21.08.2015 informing that she had applied for Post Code 02/13 as well, while her candidature has been considered and rejected against post code 69/10 only. Accordingly her candidature was considered against Post Code 02/13 as well, however rejected being over aged. She claimed that her candidature has been incorrectly rejected on the ground of over age. It is further submitted that respondent No.1 as per result Notice dated 14.03.2016 called the various candidates who had obtained marks below 110 and crossed the age limit of 30 years, however, the respondent No.1 rejected the cases of various candidates on the ground of over age. The applicant further represented on 23.03.2016, seeking age relaxation, however, respondent No.1 did not respond. Then the applicant filed her objection vide communication dated 29.03.2016, but to no avail. Thereafter the respondent No.1 declared the Result Notice No.516 part-11 for Librarian against the post code 02/13 as per result notice dated 27.07.2016, provisionally selecting 35 candidates under UR category, who have obtained 104 marks, not recommending the name of the applicant for appointment who secured 110 marks.

4. Learned counsel for the applicant submits that the respondents did not apply the Notification of GOI dated 21.12.1988 regarding age relaxation of two years for the general candidates.

5. He has drawn our attention to the advertisement No.08/2004 under the post code 0277 for the post of Librarian wherein the prescribed age limit was 32 years (Annexure-1/6). The DSSSB had issued fresh advertisement No.02/10 under Post Code 69/10 (Annexure-A/10). Thereafter, the DSSSB had issued fresh advertisement No.01/11 inviting applications for various posts containing post code 40/11 for the post of Librarian (Annexure-A/8). The applicant applied for the same. As the said advertisement was challenged by some of the candidates before the Hon’ble High Court of Delhi under Section 32 of the persons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, 1995 in WP(C) No.3411/2012, vide order dated 01.06.2012, the Hon’ble High Court directed to scrap the said advertisement and initiate fresh process after making appropriate requisition to DSSSB. The relevant portion of the order in WP(C) No.3411/2012 reads as under :-

“We appreciate this gesture on the part of these authorities who have realized this mistake and are ready to take remedial steps. We are of the opinion that in a case like this, when the advertisement No.01/2011 was not in accordance with law and no appointments have been made so far against this advertisement, the process already undergone is liable to be scrapped and fresh process should be initiated after appropriate requisition is made by these authorities to the DSSSB identifying the posts suitable for disabled persons in accordance with the notifications dated 18.1.2007 and 15.3.2007.”

6. It is submitted that the respondents violated the aforesaid order by reducing the age of two years for fresh recruitment for unreserved candidates and, now, she has become overage for recruitment under the Post Code 02/13. In support of his contentions, learned counsel for the applicant relied upon the decisions of the Hon’ble High Court of Delhi in Writ Petition (C) No.1035/2014 titled Asha Vs. Govt. of NCT of Delhi decided on 22.08.2014 and Writ Petition No.573/2020 titled Anju Gehlawat Vs. Govt. of NCT of Delhi & Ors. decided on 21.04.2022. In the case of Asha (supra), the Hon’ble High Court observed that non grant of age relaxation of 10 years to women candidates is violative of Article 14 of the Constitution; it amounts to not giving effect to the discretion vested in the respondents for no reason except that they have failed to carry out the necessary consequential amendment to the recruitment rules giving effect to the equation which occurred.

7. The applicant further seeks age relaxation extended to the women candidates in terms of the Notification issued by the Hon’ble LG on 01.11.1980. The Notification dated 01.11.1980 reads as under:-

“General Age Relaxation of 10 years for Women Candidates for Recruitment to Teachers Post

1. In exercise of the powers vested in him under Rule 43 of the Delhi School Education Rules, 1973, the Administrator is pleased to prescribe for women candidates a general relaxation for 10 years in the maximum age limits prescribed in the Recruitment Rules for recruitment to various posts of teachers in Delhi Schools.

2. The Managing Commitees shall, while considering women candidates for appointment to vacancies in their schools, consider such candidates as per the revised age limit for women candidates.”

8. In view of the aforesaid, the learned counsel for the applicant argues that the applicant would be entitled for age relaxation of 10 years extended to women candidates in terms of the OM dated 01.11.1980 issued by the Hon’ble LG. The applicant being much higher in merit was entitled for the offer of appointment as she secured 110 marks. He states that the Govt. of NCTD issued OM dated 21.01.2011 whereby Librarians were declared teaching staff for all purposes, relevant portion of which reads as under:

“The post of Librarian in Govt. Schools of Dte. of Education, Govt. of N.C.T. of Delhi is hereby declared as teaching post for all purpose with immediate effect and accordingly the Librarians shall avail all benefits applicable to teaching category in prospective manner only. It is further ordered that the Librarian shall be classes also besides the work of Library as and when required by concerned HOS/any other higher authority.

This issue with prior approval of Director of Education."

9. He states that by the aforesaid Order, the Librarians were declared as teaching posts for all purposes by the GNCT of Delhi. He argues that in terms of the relaxation given by the notification dated 01.11.1980 read with notification dated 21.01.2011, the applicant is entitled for the 10 years age relaxation, as extended to the teachers. The applicant since meets all other essential qualifications, she is entitled for the age relaxation in terms of the above OM/Order and thereby entitled for the offer of appointment. In addition, learned counsel for the applicant has also filed written arguments stating that the respondent No.2 selected a candidate, namely, Ms. Abu Taiyab Ashrafi who obtained 109.50 marks, however, the applicant secured 110.00 marks. He further submits that the applicant has served as a departmental candidate and obtained experience as Librarian under Adhoc policy from 2002 to 2006 and she should be given age relaxation for the post of Librarian.

10. The respondents have filed their counter reply opposing the OA. Learned counsel for the respondents, relying on the counter reply, argues that the eligibility criteria such as upper age limit, educational qualification, experience etc. are being fixed by the Board as per Recruitment Rules of the post framed by the User Department and no relaxation over and above the prescribed one as per RRs can be provided by the Board. It is solely at the discretion of the User Department under the relevant RRs. He submits that as per the provisions of the RRs of respondent No.2 under Post Code 69/10, the upper age limit prescribed was 32 years and under Post Code 02/13, the upper age limit prescribed was 30 years, however, relaxation in upper age limit has also been given to various categories. Therefore, he submits that Board has neither increased nor reduced the upper age limit on its own. He goes on to argue that Hon’ble High Court in WP(C) No.3411/2012 directed the respondents to send fresh requisition to DSSSB to issue fresh advertisement, however, nowhere in the said order dated 01.06.2012, it was stated that there will be any age relaxation to the candidates in the future vacancy notices. He submits that the candidature of the applicant could not be considered as she secured 110 marks as against the 142.75 marks secured by the last selected candidate under the Post Code 69/10 and her candidature was rejected under Post Code 02/13, as her age on the cut off date i.e. 20.03.2013 was more than 30 years, as prescribed under the RRs. He draws strength from a decision of Hon’ble High Court in WP(C) No.7207/2007 titled Sachin Gupta & Ors. Vs. DSSSB & Ors., to rebut the contention of the applicant that her case ought to have been considered as per notification dated 01.11.1980. He states that at the relevant point in time, the Notification dated 01.11.1980 was in vogue, however, the same would be rendered redundant considering the fact that the specific Recruitment Rules governing the post to which the applicant is an aspirant were notified later on.

11. Learned counsel for respondent No.2 argues that the role of the respondent No.2 starts only after the dossiers of the candidates, who are selected in the selection process, are received from the respondent No.1. He further submits that since the selection process itself is under challenge by the applicant, they are proforma party in the matter and they are relying on the arguments put forth on behalf of respondent No.1.

12. We have heard the learned counsel for the parties and perused the material available on record.

13. It is not in dispute that the applicant was eligible with respect to the age against Post Code 69/10 but with respect to Post Code 02/13, she was over aged. The issue before us is whether the applicant could be extended the age relaxation in terms of the OM dated 01.11.1980. It is seen that the said relaxation is specific in the case of teachers only. Further, the executive instructions have been over ruled by the Recruitment Rules.

14. The applicant has relied upon the judgment of Asha (supra). However, the Hon’ble High Court in WP(C) No.7240/2017 titled Raj Bala and Anr. Vs. Govt. oc NCT of Delhi and Ors, while deciding the issue at stake has considered the judgment of Asha (supra). Relevant paras 12, 13 and 14 of the said judgment reads as under :-

“12. He also places reliance on the decision of the Division Bench in Asha (supra), and submits that this court should follow the decision in Asha (supra) and not the one rendered by the Division Bench in Sachin Gupta (supra).

13. Having heard learned counsel for the petitioners, we find no merit in these petitions. The foundation of the petitioners' case is the notification dated 01.11.1980 issued by the Hon'ble Lt. Governor under Rule 43 of the DSE Rules granting age relaxation of 10 years to women candidates in respect of posts of Teachers. Firstly, the Division Bench in Sachin Gupta (supra) held that the said notification did not relate to recruitment of Teachers in the DoE of the GNCTD. We are bound by the said finding and, even otherwise, we see no reason to take a different view. The said issue, firstly, was not raised before the Division Bench dealing with Asha (supra), and Sachin Gupta (supra) was not even considered in the said decision. The issue raised in Asha (supra) was materially different. In that case, despite the post of Librarian in Government Schools of the DoE having been declared as teaching posts for all purposes with immediate effect on 21.01.2011, the age relaxation applicable to women candidates was not being extended to those applying for the post of Librarian, even though the same was granted to women candidates applying for other posts of teachers in the DoE. It is on the aforesaid premise that the action of the respondent - GNCTD was found to be discriminatory by this Court, and this Court directed the respondents to grant the said age relaxation to the petitioner Asha as well. It was not urged before the Division Bench in Asha (supra), that the said age relaxation granted by the Hon'ble Lt. Governor vide notification dated 01.11.1980 did not apply to recruitments by the DoE in the GNCTD. The decision in Sachin Gupta (supra), which is an earlier decision of a Division Bench of this Court was not even brought to the notice of the Court while dealing with Asha (supra). Therefore, it cannot be said that there is any conflict of judicial opinion between Sachin Gupta (supra) and Asha (supra). In any event, the reliance placed by the petitioners on the notification dated 01.11.1980 appears to be misplaced and is of no avail.

“14. We are also of the view that the finding returned by the Tribunal that the said notification dated 01.11.1980 cannot be pressed into service after the Rules of 2011 have been framed for the purpose of recruitment of PETs, is correct and does not call for interference. This Court has held in Sachin Gupta (supra) that it is the prerogative of the employer to decide the age limit and academic suitability of candidates whom they wish to employ, and so long as the same are not in conflict with the academic eligibility and age prescribed by the NCTE. Challenge to the said prescription cannot be sustained, merely on the ground that the eligibility conditions render some candidates ineligible.”

15. The issue in hand has conclusively been decided by this very Bench of the Tribunal in OA No.1188/2016. It is observed that the facts, issue and prayer in the said OA are not only similar but identical to the instant OA. The OA No.1188/2016 was filed in the year 2016 against the same Post Code, wherein the Tribunal did not interfere in the similar facts of the case. Judicial discipline binds us. Therefore, we cannot take a divergent view. The judgment in Asha (supra), may not come to the rescue of the applicant as the cognizance of the same has been taken by the Hon’ble High Court of Delhi while deciding the matter in Raj Bala (supra). The relevant portion of the order passed in OA No.1188/2016 is reproduced hereinbelow :-

“9. It is not in dispute that the applicant was eligible with respect to the age against Post Code 69/10 but with respect to Post Code 02/13, she was over aged. The issue before us is whether the applicant could be extended the age relaxation in terms of the OM dated 01.11.1980. It is seen that the said relaxation is specific in the case of teachers only. Further, the executive instructions have been over ruled by the Recruitment Rules.

10. The applicant has relied upon the judgment of Asha (supra). However, the Hon’ble High Court in Raj Bala (supra) while deciding the issue at stake has considered the judgment of Asha (supra). Relevant paras 12 and 13 of the said judgment reads as under :-

“12. He also places reliance on the decision of the Division Bench in Asha (supra), and submits that this court should follow the decision in Asha (supra) and not the one rendered by the Division Bench in Sachin Gupta (supra).

13. Having heard learned counsel for the petitioners, we find no merit in these petitions. The foundation of the petitioners' case is the notification dated 01.11.1980 issued by the Hon'ble Lt. Governor under Rule 43 of the DSE Rules granting age relaxation of 10 years to women candidates in respect of posts of Teachers.

Firstly, the Division Bench in Sachin Gupta (supra) held that the said notification did not relate to recruitment of Teachers in the DoE of the GNCTD. We are bound by the said finding and, even otherwise, we see no reason to take a different view. The said issue, firstly, was not raised before the Division Bench dealing with Asha (supra), and Sachin Gupta (supra) was not even considered in the said decision. The issue raised in Asha (supra) was materially different. In that case, despite the post of Librarian in Government Schools of the DoE having been declared as teaching posts for all purposes with immediate effect on 21.01.2011, the age relaxation applicable to women candidates was not being extended to those applying for the post of Librarian, even though the same was granted to women candidates applying for other posts of teachers in the DoE. It is on the aforesaid premise that the action of the respondent - GNCTD was found to be discriminatory by this Court, and this Court directed the respondents to grant the said age relaxation to the petitioner Asha as well. It was not urged before the Division Bench in Asha (supra), that the said age relaxation granted by the Hon'ble Lt. Governor vide notification dated 01.11.1980 did not apply to recruitments by the DoE in the GNCTD. The decision in Sachin Gupta (supra), which is an earlier decision of a Division Bench of this Court was not even brought to the notice of the Court while dealing with Asha (supra). Therefore, it cannot be said that there is any conflict of judicial opinion between Sachin Gupta (supra) and Asha (supra). In any event, the reliance placed by the petitioners on the notification dated 01.11.1980 appears to be misplaced and is of no avail.”

11. So far as the judgment relied upon by the applicant in the case of Meenakshi (supra), it is seen that the same was dismissed on the ground of limitation. The relevant portion of the said judgment reads as under:-

“14. As in the instant case the applicant is claiming age relaxation and also praying for quashing of the notice dated 10.9.2013, whereby her candidature for Post Code 02/13 was rejected by the respondentDSSSB on the ground of her being overage, on the basis of the judgment dated 22.8.2014 passed in W.P. (C) No. 1035 of 2014 (Asha Vs. Government of NCT of Delhi & others), it would be apposite to quote paragraphs 13 to 17 of the said judgment:

“13. In view of the GNCTD's silence as to the supersession or inapplicability of the 01.11.1980 circular - clearly its position that age relaxation for women candidates cannot be granted, is violative of Article 14 of the Constitution; it amounts to not giving effect to the discretion vested in it for no reason except that it has failed to carry out the necessary consequential amendment to the recruitment rules giving effect to the equation which occurred. The GNCTD also does not dispute that for other categories of teaching staff or teachers in its schools, the 10 year relaxation, based upon 01.11.1980 circular or rules- which assimilated its mandate, have been given effect to.

14. The impugned order of the Tribunal also has noticed a judgment of this Court in Smt. Promila Dixit v. GNCTD in W.P.(C.) No.1234/2010 decided on 26.11.2010, where an identical contention with respect to the equation of TGT with librarian for the purposes of recruitment and age relaxation was upheld. This Court is of the opinion that this being the position even before the issuance of 21.01.2011 circular, the GNCTD's stand in this case appears to be obstinate to put it mildly. Furthermore, the CAT, in our opinion, fell into error in ignoring a direct judgment on the issue even after noticing its effect and purport.

15. For the foregoing reasons, the petition has to succeed. The impugned order of the CAT is, accordingly, set aside. The respondents are hereby directed to accept the petitioner's application and allow her to appear in the competitive examination scheduled on 31.08.2014.

16. The petitioner shall be intimated about her examination centre etc. on 27.08.2014 by the concerned officer of the DSSSB. For that purpose, she shall appear before the concerned officer of the DSSSB on 27.08.2014. The respondent GNCTD is directed to coordinate with the DSSSB and ensure that the petitioner is given the Admit Card as well as intimation about the examination centre etc. on 27.08.2014. The petitioner shall present in the office of the respondent/DSSSB at 11:00 a.m. on that day.

17. The writ petition is allowed in the aforesaid terms.”

(Emphasis supplied)

From the above judgment, it is clear that the Hon’ble High Court of Delhi did not intend to give benefit to all similarly situated persons, whether they approached the Court or not. Therefore, the applicant had to explain the delay for the period from 10.9.2014, i.e., after expiry of one year from 10.9.2013 when the rejection notice was published, till 28.4.2016, i.e., the date preceding the date of filing of the O.A.. Save and except stating about the declaration of results of the common written test for both Post Codes 69/10 and 02/13 on 17.7.2015, non-publication of the result of Smt. Asha, and judgment passed by the Hon’ble High Court of Delhi in the case of Smt. Asha, the applicant has not shown any cause for not filing the O.A. within the prescribed period of limitation of one year from 10.9.2013 when the impugned rejection notice was published by the respondent-DSSSB. After having considered the facts and circumstances of the case, in light of the decisions referred to above, we are unable to agree with the applicant that the cause of action arose on 17.7.2015 for filing the O.A. The applicant having failed to satisfy us that she had sufficient cause for not making the application within the prescribed period of limitation of one year from 10.9.2013, we are not inclined to condone the delay of more than one and half years, i.e., from 10.9.2014 to 28.4.2016. Therefore, MA No.1516 of 2016 filed by the applicant for condonation of delay in filing of O.A.No.1529 of 2016 is rejected. Consequently, O.A. No.1529 of 2016 is rejected as being barred by limitation.”

12. In the instant matter also, the applicant is not just similar but identically placed as in the case of Meenakshi (supra) and Raja Bala (supra). The OA was filed in the year 2016 against the same Post Code and the Tribunal did not interfere in the similar facts of the case of Meenakshi (supra) as it was considered to be barred by limitation. The judgment in Asha (supra), may not come to the rescue of the applicant as the cognizance of the same has been taken by the Hon’ble High Court of Delhi while deciding the matter in Raj Bala (supra) relied upon by the respondents. The applicants have placed reliance on the judgment of Shelja Dhama in OA No.1039/2021 and batch, wherein the candidates were aspiring to the post of Trained Graduate Teacher (TGT) while in the instant OA, the applicant is seeking appointment to the post of Librarian.

13. The issue at stake has been further decided by the same Bench of this Tribunal in OA No.1019/2019 decided on 20.09.2023 in the matter of Kirti Vs. Govt. of NCT of Delhi & Ors. The judicial discipline binds us. The facts, issues and prayer have a striking similarity. For the sake of clarity, the relevant portion of the said Order is reproduced herein below:-

“7. It is seen that the Recruitment Rules were notified under Article 309 of the Constitution of India and had been prevailing as against the relaxation granted by the Hon’ble Lt. Governor. The relaxation to women candidates by the Hon'ble Lt. Governor vide notification dated 01.11.1980 in exercise of powers under Rules 43 of the Delhi School Education Rules was granted when the pre-existing rules were in force. With the enforcement of the amended Recruitment Rules, it could not be said that the said relaxation continued.

8. In this regard, we are guided by the judgment of this Tribunal in OA No.3167/2017 Asha & Another Vs. Govt. of NCT of Delhi & Ors. dated 19.03.2019, following the judgment of Hon’ble High Court of Delhi in Raj Bala (supra) decided on 23.08.2017 referred to hereinabove. Relevant portion of the judgment of Hon’ble High Court in Raja Bala (supra) reads as under :-

“14. We are also of the view that the finding returned by the Tribunal that the said notification dated 01.11.1980 cannot be pressed into service after the Rules of 2011 have been framed for the purpose of recruitment of PETs, is correct and does not call for interference. This Court has held in Sachin Gupta (supra) that it is the prerogative of the employer to decide the age limit and academic suitability of candidates whom they wish to employ, and so long as the same are not in conflict with the academic eligibility and age prescribed by the NCTE. Challenge to the said prescription cannot be sustained, merely on the ground that the eligibility conditions render some candidates ineligible.”

9. Though the applicant has relied on a judgment of Hon’ble High Court of Delhi in Gauri Sharma (supra), however, that is not relevant so far as the facts of the present case are concerned.

10. In view of the aforesaid facts and circumstances and the law on the subject, we do not find any merit in the present OA and the same is, accordingly, dismissed.”

14. For the reasons explained hereinabove, the OA is dismissed being devoid of merits. There shall be no order as to costs.”

16. For the reasons explained hereinabove, the OA is dismissed being devoid of merits. However, in the facts and circumstances, there shall be no order as to costs.