IMPORTANT POINT
The main legal point established in the judgment is the entitlement to age relaxation and weightage for experience based on previous judgments and the peculiar facts of the case.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

1. With the consent of the learned counsel for the parties, the matter is taken up for final disposal.

2. This is a petition under Article 226 of the Constitution of India, 1950 seeking the following reliefs:

(a) To issue writ/ order or direction in the nature of mandamus thereby directing respondents to implement their assurance given by them before the Hon'ble High Court in WP ( C ) No. 4247/1998 dated 11.2.2005 and also Implement order dated 06.10.2005 passed by the Hon'ble Division Bench in the aforesaid LPA No.2005 /2005;

(b) Issue a writ/order or direction or direction in the nature of mandamus directing the respondents to give age relaxation as well as due weightage in the recruitment process vide Vacancy Notice/ Advertisement No. 8/2023.

3. The case of the petitioner is that the petitioner had worked for more than 10 years as a Primary/Nursery/Balwari Teacher in various schools of the respondent No.1/NDMC from 1994 till 2005. It is further the case of the petitioner that the petitioner in 1998 had prayed for her regularization of her contractual employment by way of filing writ petition bearing No. W.P. (C) 4247/1998.

4. Vide the order dated 11.02.2005, the learned single Judge of this Court had dismissed the writ petition on accepting the assurance given by the learned counsel for the respondent as recorded in para 2 of the said judgment. The petitioner subsequently challenged the aforesaid judgment dated 11.02.2005 before the learned Division Bench of this Court in LPA No. 2002/2005 titled as Vibha Sharma Vs N.D.M.C.

5. The learned Division Bench by its order dated 06.10.2005 had dismissed the appeal, however had observed that in case any fresh selection is to be made by the DSSSB for appointment of Nursery Teacher and the appellant submits her application, she would not only be given age relaxation in terms of the observations made by the learned Single Judge but the respondent shall also give due weightage to the fact that the appellant has rendered service as a Balwari Teacher on contractual basis for the period of 10 years.

6. It is the case of the petitioner that during this entire period, the respondent No.1 had not initiated any recruitment process for the selection of Primary Teacher (Nursery) at all. The petitioner submits that it is for the first time on 22.12.2023 vide the advertisement No.08/2023, the respondent No.2 on the request of respondent No.1/NDMC as a user department had issued a notification calling for eligible candidates for the combined examination 2023 wherein the post of Assistant Teacher (Nursery) was also advertised.

7. Learned counsel appearing for the petitioner submits that the petitioner now being over aged, the online portal obviously did not accept her online application which is stated to close on 07.02.2024 by 11:59 pm.

8. Learned counsel appearing for the petitioner submits that the deprivation of the petitioner for being considered even for the purposes of sitting in the examination for recruitment to the regular post of Assistant Teacher (Nursery) would be violative of her fundamental rights as also the vested rights accrued to her by virtue of the orders passed by the learned Single Judge as also by the learned Division Bench on 11.02.2005 and 06.10.2005 respectively.

9. He submits that though the age relaxation has been given by the respondent to the contractual employees only to the maximum period of 5 years, the same would however not suffice in her peculiar case.

10. He submits that it is not the fault of the petitioner if the respondent advertises after a passage of almost 20 years and as such, prays that that the petitioner be also permitted to participate in the said examination as a one time age relaxation. Learned counsel submits that the period from 2005 to till the date of notification be taken as relaxation in age and the petitioner be permitted to participate in the examination.

11. Per