Manmohan Sarin, J
1. Petitioner assails the order dated 3.8.2004, passed by the Central Administrative Tribunal, Principal Bench, New Delhi dismissing OA No. 1860/2004. Petitioner in the said OA had challenged order dated 21.7.2004, holding the petitioner's appointment to the post of Physical Education Teacher (PET) under Director of Education i.e. respondent No. 1 as illegal and rejecting his candidature as being overage, by denying age relaxation for purposes of employment with respondent No. 1. It was held that petitioner being employed with respondent No. 2, the Municipal Corporation of Delhi (hereinafter MCD), was not a government servant eligible for age relaxation.
2. Before proceeding further the facts giving rise to the petition are briefly noted:
Petitioner was appointed as a teacher with the MCD on 6.10.1987. In March, 1999 an advertisement for recruitment to the post of Physical Education Teacher (PET) with respondent No. 1 appeared in newspaper. The upper age limit for male candidates was 30 years. Petitioner was 34 years and 5 months old on the relevant date of filling up the application form i.e.25.3.1999. Age relaxation was permissible to various categories including government servants, sports person and schedule caste/tribes, as prescribed in the brochure issued by respondent No. 3, Delhi Subordinate Services Selection Board. Relevant extract there from is reproduced below:
The Age Limits as mentioned in the advertisement against each Group 'B' and Group 'C' posts are normal and are relaxable for SC/ST applicants up to 5 years and for OBC applicants up to 3 years. Age limit is also relaxable for Government Servants and employees of other Government organization up to 5 years.
3. Petitioner sought 'no objection' from his Department for applying to the post of PET. Thereafter the petitioner applied for the post of PET claiming age relaxation by virtue of his being employed in MCD and appeared in the examination held by respondent No. 3. He was declared successful and appointment letter dated 23.12.1999, was issued to him. Respondent No. 2 accepted the resignation of the petitioner on 24.3.2000. Petitioner joined service with respondent No. 1 on 30.3.2000. He completed his year of probation.
4. To his shock and dismay, the petitioner was issued a Show Cause Notice dated 25.4.2001 whereby he was asked to explain within 3 days as to why his appointment should not be canceled as he was overage at the time of applying for the post of PET. It was stated that he was not a government employee but an employee of MCD, which is an autonomous body and thus ineligible to claim any age relaxation.
5. Petitioner replied to the Show Cause Notice by submitting that he had applied for the post of PET and claimed age relaxation on the basis of his employment with MCD. His certificates and documents were verified by respondent No. 1 and no objections were ever raised, neither at the time of joining nor during the probation period. Thus it was not a case of suppression or misrepresentation by the petitioner. Petitioner submitted that he complied with all the procedural requirements of verification and claimed to be entitled to age relaxation on the basis of his service with MCD, which is a government organization.
6. Vide order dated 21.7.2004, the candidature of the petitioner for appointment to the post of PET was found ineligible as being over aged. His appointment was declared illegal and the petitioner was reverted to his parent department i.e. MCD. Petitioner filed an OA challenging the order dated 21.7.2004. The Tribunal dismissed the said application vide order dated 3.8.2004, noting that petitioner had been asked to report to MCD from where he had already resigned. The Tribunal expressed the hope that MCD would consider his case keeping in view their observations.
7. Ms. Mukta Sharma, counsel for the petitioner submitted that the petitioner has been unfairly denied the age relaxation as he is entitled to the same on account of his being an employee of MCD which falls under 'other government organization'. She urged that the respondent No. 1 had the opportunity to verify the certificates of the petitioner at the time of issuing the appointment letter. The verification was done to the satisfaction of respondent No. 1 and it was only thereafter that the petitioner joined services. She further contended that MCD is a government organization discharging government functions. She laid much emphasis on Section 107-A of the MCD Act, 1957 which provides for constitution of Finance Commission to recommend distribution of net proceeds of taxes etc between Corporation and Government of NCT and grant in aid to the corporation from consolidated fund of the Govt. of NCT. Further Chapter 24 of the Act provides for control of the Corporation by Central Government.
8. Ms. Sharma further contended that as per the recruitment rules of respondent No. 1, 70% of the general teaching staff comes by promotion from Assistant Teacher of MCD. Had the petitioner not applied for the post of PET, he would have got a promotional post as general teacher with respondent No. 1. Reliance was placed on the Recruitment Rules published for the post of language teacher/trained graduate teacher (MIL) wherein the method of recruitment has been specified as 'by promotion from Assistant Teachers of MCD....
9. Mr. Tandon appearing for respondent No. 1 relied on his counter affidavit to submit that petitioner is a general category candidate who was admittedly 34 years and 5 months old at the time of applying for the post of PET and thus overage. No age relaxation was admissible to him as he was neither a reserved category candidate nor a government employee. MCD is a statutory body set up under the MCD Act, 1957. The employees of MCD are governed by the relevant rules and regulations framed under the said Act. Accordingly, the petitioner, who at the relevant time was an employee of the MCD, cannot claim himself to be a government servant.
10. Learned Counsel has also placed reliance on Satya Pal v. Delhi Subordinate Service Selection Board reported at 2005 (122) DLT 678. In this case the Court held that an employee of Indian Veterinary Research Institute was not entitled to claim age relaxation as a government servant. The employee was held not to be a government servant since neither he was selected nor appointed by Government.
It is not the petitioner's case that though being an employee of MCD, he is a government servant. His case is that he falls within the ambit of employee of 'other government organization'. Similar is the situation with regard to Anil Kumar Gupta v. MCD : AIR2000SC659 . The mere fact that there was a separate provision made for MCD and government employees for the purposes of age relaxation can only show that MCD employee is not a government employee. It does not negate employee of MCD being an employee of 'other government organization'.
11. Mr. O.P. Saxena, Counsel for the MCD submitted that since the petitioner had already resigned from MCD, he thereforee does not have any legal right to claim any benefit from MCD. He further submitted that definition of 'other government organizations' is a broad one and the functional test as applicable for the purposes of Article 12 of the Constitution of India will apply. He submitted that MCD comes within the phrase 'other government organization' and its employees would be eligible for age relaxation. Mr. Saxena further submitted that for the purposes of sanction for prosecution under Section 197 Cr.P.C. also, employees of MCD are treated like government servants.
12. From a perusal of the judgment of the Tribunal, we find that the Tribunal has considered the petitioner's entitlement for age relaxation by only considering the question whether he was a government servant or not? It held that an employee of MCD was not a government servant. Hence it denied the benefit of age relaxation to the petitioner. As per the application form and brochure issued by respondent No. 3, the Delhi Subordinate Staff Selection Board, relaxation in age was available of government servants and employees of other government organizations. This being the criteria has not been disputed before us by any of the respondents. Accordingly it needs to be considered whether an employee of MCD would fall within the ambit of an employee of 'other government organizations'.
13. For this purpose let us examine the meaning of government, organization and the status of the employees of MCD. The Encyclopedia Britannica describes Government as 'Political system by which a body of people is administered and regulated...'. The American Heritage Dictionary describes Government as follows:
1.The act or process of governing, especially the control and administration of public policy in a political unit.
2. The office, function, or authority of a governing individual or body.
3. Exercise of authority in a political unit; rule.
4. The agency or apparatus through which a governing individual or body functions and exercises authority.
5. A governing body or organization, as:
a. The ruling political party or coalition of political parties in a parliamentary system.
b. The cabinet in a parliamentary system.
c. The persons who make up a governing body.
6. A system or policy by which a political unit is governed.
14. Organization is a generic term for any type of group or association of individuals who are joined together either formally or legally. The term organization includes a corporation, government, partnership, and any type of civil or political association of people.
15. Having noticed the definition of 'Government' and 'Organization' let us examine whether MCD falls within the ambit of 'other government organization'. The municipal government of Delhi is vested in the MCD. Apart from framing Building Bye Laws, regulating construction, it levies and collects taxes. It receives grant-in-aid from the consolidated fund of the Government of NCT. It would clearly fall within a government organization. For all appointments in Group A posts, it is required to consult the UPSC. While it is true that it has a degree of autonomy, the same would not change its character from that of government organization.
16. Reference may usefully be made to the judgment in Union of India and Ors. v. R.C. Jain and Ors. reported at : (1981)ILLJ402SC . The Supreme Court was considering the meaning of 'local authority' in the context of Payment of Bonus Act regarding employees of DDA.
2. Let us, thereforee, concentrate and confine our attention and enquiry to the definition of 'Local Authority' in Section 3(31) of the General Clauses Act. A proper and careful scrutiny of the language of Section 3(31) suggests that an authority, in order to be a local Authority, must be of like nature and character as a Municipal Committee, District Board or Body of Port Commissioners, possessing, thereforee, many, if not all, of the distinctive attributes and characteristics of a Municipal Committee, District Board, or Body of Port Commissioners, but, possessing one essential feature, namely, that it is legally entitled to or entrusted by the government with, the control and management of a municipal or local fund. What then are the distinctive attributes and characteristics, all or many of which a Municipal Committee, District Board or Body of Port Commissioners shares with any other local authority? First, the authorities must have separate legal existence as Corporate bodies. They must not be mere Governmental agencies but must be legally independent entities. Next, they must function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the inhabitants of the area. Next, they must enjoy a certain degree of autonomy, with freedom to decide for themselves questions of policy affecting the area administered by them. The autonomy may not be complete and the degree of the dependence may vary considerably but, an appreciable measure of autonomy there must be. Next, they must be entrusted by Statute with such Governmental functions and duties as are usually entrusted to municipal bodies, such as those connected with providing amenities to the inhabitants of the locality, like health and education services, water and sewerage, town planning and development, roads, markets, transportation, social welfare services etc. etc. Broadly we may say that they may be entrusted with the performance of civic duties and functions which would otherwise be Governmental duties and functions. Finally, they must have the power to raise funds for the furtherance of their activities and the fulfillment of their projects by levying taxes, rates, charges, or fees. This may be in addition to moneys provided by government or obtained by borrowing or otherwise. What is essential is that control or management of the fund must vest in the authority.
3. In Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills Delhi : [1968]3SCR251 : [1968]3SCR251 , Hidayatullah, J., described some of the attributes of local bodies in this manner:
Local bodies are subordinate branches of Government activity. They are democratic institutions managed by the representatives of the people. They function for public purposes and take away a part of the Government affairs in local areas. They are political sub-divisions and agencies which exercise a part of State functions. As they are intended to carry on local self-government the power of taxation is a necessary adjunct to their other powers. They function under the supervision of the Government.
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12. A submission of the Learned Counsel was that the Delhi Development Act itself referred in several places to local authorities as distinguished from Delhi Development Authority. It is true that in Sections 12, 15, 30, 31, 34, 36, 42 and some other provisions we find a reference to 'local authority concerned' meaning thereby the ordinary local authority functioning in the area discharging a multiplicity of civic functions. The Delhi Municipal Corporation for example is one such local authority. The Delhi Development Authority is constituted for performing one of the several functions which a local authority may perform. That the local authorities performing other functions are referred to as 'local authorities' in the Act by which the Delhi Development Authority is created, while the Delhi Development Authority is referred to as the Authority, is no ground for holding that the Delhi Development Authority is not a 'Local authority' as defined by Section 3(31) of the General Clauses Act. The Delhi Development Authority is endowed with all the usual attributes and characteristics of a 'local authority' and there is no reason to hold that it is not a 'local authority'.
17. From the foregoing, it would be seen that MCD as a local authority has public functions akin to government, with certain degree of autonomy. It would thus fall within the ambit of 'other government organization' and specially keeping in view that all group A appointments are made in consultation with UPSC, for sanction of prosecution they are treated as public/government servants. Even for the purposes of Article 12 of the Constitution of India, MCD is treated as a public authority. It is an instrumentality or agency of the government, exercising statutory powers and performing public functions.
18. Accordingly we hold that MCD will fall within the ambit of 'other government organization'. Orders dated 21.7.2004 and 3.8.2004 are quashed. Petitioner is held eligible for age relaxation and his appointment as PET with respondent No. 1 is held legal and in order. Respondent No. 1 is directed to reinstate the petitioner in service forthwith. In the peculiar circumstances of this case, petitioner would not be entitled to back wages but would be entitled to have the period from 21.7.2004 counted for purposes of determination of his seniority and pension.
Writ petition is allowed in the above terms.