Advocate Ashwini Upadhyay filed a writ petition that is listed for an urgent hearing on 3rd March’2022 before the Bench of Justice Vipin Sanghi and Justice Jasmeet Singh seeking direction or declaration that the Notification of the NCT of Delhi Government dated 10.2.2022 is ‘void and inappropriate’.
Advocate Ashwini Upadhyay’s various contentions in the Writ can be seen here,
“Petitioner is seeking appropriate writ, order or direction or declaration that the Notification of the NCT of Delhi Government dated 10.2.2022 is not only manifestly arbitrary, irrational, unfair and contrary to the due procedure of Law, but also brazenly violates Articles 14, 16, 21 of the Constitution, hence, void and inoperative. “
“Petitioner seeks direction and declaration that upper age limit for external candidates for post of Managing Director-DMRC, which is not only extremely important and specialized and requires the most competent and experienced person but also an unreserved sole post, cannot be arbitrary, irrational, discriminatory and against the constitutional ethos of Articles 14, 16 and 21.”
“Petitioner also seeks direction and declaration that upper age limit for post of Managing Director shall be uniform for all candidates (6o years) and candidates who were eligible on the date of vacancy i.e., 1.10.2021 shall be considered for selection process. “
“Petitioner submits that DMRC had issued two notifications recently for similar posts- Director Finance and Director-Operation but those notifications had no such discrimination. Therefore, it appears that government has done it to give benefit to a particular officer.”
“Petition is not guided by self-gain or for gain of any other individual person, institution or body. There is no motive other than the larger public interest and to secure rule of law in filing this writ petition.”
Petitioner said that the source of averments made in the PIL is based on personal knowledge and the information collected from government websites and newspapers.
“Petitioner is filing this PIL to secure the rule of law. As the affected persons are government employee and cannot approach the Court themselves, hence, petitioner is filing the PIL to secure constitutional ethos of Articles 14, 16 and 21 of the Constitution of India.”
“Centre and State Government is likely to be affected by the orders sought and have been impleaded as Respondents. No other persons, bodies, institutions are likely to be affected by the order sought in PIL.”
“Petitioner has not submitted any representation to the respondents. There is no requirement to move concerned authority for relief sought in this writ petition. There is no other remedy available.”
Petitioner gave the following details about DMRC’s work expansions and related appointment procedures,
Petitioner submits that the Delhi Metro Rail Corp. Ltd (DMRC) was registered on 3rd May 1995 under the Companies Act, 1956 with equal equity participation of the Government of National Capital Territory of Delhi and the Central Government to implement the dream of construction and operation of a world-class Mass Rapid Transport System (MRTS).
Starting from that time it has now constructed a massive network of about 389 Km with 285 stations in Delhi and NCR. The DMRC today has over 300 train sets. The network has crossed the boundaries of Delhi to reach NOIDA-Ghaziabad in UP, Gurgaon, Faridabad, Bal1adurgarh and Ballabhgarh in Haryana. Apart from operating a large network, DMRC is also constructing its fourth phase costing more than Rs. 20,000 Cr of public exchequer. It is constructing three lines totaling more than 65 Km and 45 stations, both elevated and underground. Phase 4 was to be completed by Dec.2024 but now likely to be completed by year 2026 due to impact of Covid pandemic. DMRC is also undertaking metro related consultancy assignments within the country as well as abroad. DMRC has a huge exposure to real state within and external to its premises that contributes a substantial part of its revenue and now has huge debt on its shoulders.
Petitioner submits that despite being such a mammoth organization with its projects developing even outside Delhi, State has shown discrimination when accepting candidates for the post of Managing Director, the most important post of the Organization. Moreover, the State Government, which extended the tenure thrice citing the reason of non-availability of most competent and experienced person, suddenly declared the employees of Lucknow Metro, Chennai Metro, Maha Metro, Bangalore Metro, Mumbai Metro, Kochi Metro outsider and decreased the upper age limit for application for them vide notice published in media on 10.2.2022.
The advertisement requires the candidates to be of not above 58 years of age for an external candidate, and 6o years for internals. The date of superannuation is 65 years, and the appointment is for a period of 5 years or the date of superannuation, whichever is earlier.
Requirements of tenure and superannuation are uniform for external and internal candidates. Thus, the external candidate must have 7 years of time left to reach the age of retirement while the job is only for 5 years. The external candidate is thus expected to retire at 63 years and not 65 years. It is evident that there is a mismatch or discrimination. This will increase the work load of the organization which would in turn be taxed on the common man. This will also reduce the basket of candidates for selection and decrease the possibility of choosing the candidate best suited for the post. In fact, it is blatantly obvious that this is being done to favor one internal employee, as many internal candidates have more experience than him, and have retirement age of 62 years for Board level positions.
State in recent past have invited applications for Director Finance and Director Operations at different times and age criterion in both these positions are uniform. The appointment will be on contract basis, for a period of 5 years, or, the date of superannuation, whichever is earlier. As per the terms of eligibility an external candidate having only 3 years of service left to superannuation is considered eligible by DMRC to apply for these Director level positions which has a contractual tenure of 5 years. The same is 2 years for internal candidates. At the same time for the same organization the requirements for the Managing Director are to have 7 years of service left which is 2 years more than the tenure itself. This requirement is unjust, erroneous and against any logic and need to be corrected by Government of NCT of Delhi. This, apart from removing an anomaly presently set, would also help in widening the bouquet of competent and experienced candidates available to the Government by inclusion of the experienced professionals at the shortlisting stage.
All Metro Rail Organizations like Lucknow Metro, Bangalore Metro, Maha Metro, Koehl Metro, Mumbai Metro and Chennai Metro etc. are uniformly coordinated under the Union Ministry of Housing and Urban Development in JV with respective state governments. The Secretary, Ministry of Housing and Urban Development, Govt. of India is the Chairman of all these companies. These companies operate under the same Metro Acts and adopt similar guidelines of Schedule of Power, organizational structure and job responsibilities. Hence, considering the employees of Delhi Metro as Internal and employees of Lucknow Metro, Chennai Metro, Mumbai Metro etc. as external is arbitrary irrational and violative of Articles 14 and 21. There can't be any reservation and discrimination in age limit when applying for a solitary and extremely specialized post like Managing Director and Chief Operating Officer and this has been reiterated by Supreme Court's Constitution Bench in Post Graduate Institute of Medical Education and Research (1998 4 SCC 1)
COMMISSIONER MCD V. SHASHI, 2009 SCC ONLINE DEL 2779; INDRA SAWHNEY VERSUS UNION OF INDIA, AIR 1993 SC 477; E.P. ROYAPPA VERSUS. STATE OF TAMIL NADU, 1974 AIR 555; T.C. BASAPPA v. T. NAGAPPA, AIR 1954 SC 440, are few cases the petitioner has cited in the Writ petition.
Ashwini Upadhyay in the writ petition prayed that, keeping in view the stated facts and circumstances, Court may be pleased to issue appropriate writ order direction to respondent to:
- Direct and declare that the Government of NCT of Delhi's Notification dated 10.2.2022 is not only manifestly arbitrary, irrational, unfair and contrary to the due procedure of Law, but also violates Articles 14, 16, 21 of the Constitution, hence, void and inoperative;
- Direct and declare that the upper age limit for the post of Managing Director-DMRC, which is not only extremely specialized and requires the most competent and experienced person but also an unreserved and sole post; cannot be arbitrary, irrational and discriminatory;
- Direct & declare that upper age limit for the post of Managing Director shall be uniform (6o years) and candidates who were eligible on the date of vacancy i.e., 1.10.2021, shall be eligible to apply for the post
- Pass such other order(s) and/or direction(s) as this Hon'ble Court deems fit and proper in facts and circumstances of the case and to secure the constitutional ethos enshrined in Articles 14, 16 and 21.
Advocate Ashwini Upadhyay filed a writ petition that is listed for an urgent hearing on 3rd March’2022 before the Bench of Justice Vipin Sanghi and Justice Jasmeet Singh seeking direction or declaration that the Notification of the NCT of Delhi Government dated 10.2.2022 is ‘void and inappropriate’.
Advocate Ashwini Upadhyay’s various contentions in the Writ can be seen here,
“Petitioner is seeking appropriate writ, order or direction or declaration that the Notification of the NCT of Delhi Government dated 10.2.2022 is not only manifestly arbitrary, irrational, unfair and contrary to the due procedure of Law, but also brazenly violates Articles 14, 16, 21 of the Constitution, hence, void and inoperative. “
“Petitioner seeks direction and declaration that upper age limit for external candidates for post of Managing Director-DMRC, which is not only extremely important and specialized and requires the most competent and experienced person but also an unreserved sole post, cannot be arbitrary, irrational, discriminatory and against the constitutional ethos of Articles 14, 16 and 21.”
“Petitioner also seeks direction and declaration that upper age limit for post of Managing Director shall be uniform for all candidates (6o years) and candidates who were eligible on the date of vacancy i.e., 1.10.2021 shall be considered for selection process. “
“Petitioner submits that DMRC had issued two notifications recently for similar posts- Director Finance and Director-Operation but those notifications had no such discrimination. Therefore, it appears that government has done it to give benefit to a particular officer.”
“Petition is not guided by self-gain or for gain of any other individual person, institution or body. There is no motive other than the larger public interest and to secure rule of law in filing this writ petition.”
Petitioner said that the source of averments made in the PIL is based on personal knowledge and the information collected from government websites and newspapers.
“Petitioner is filing this PIL to secure the rule of law. As the affected persons are government employee and cannot approach the Court themselves, hence, petitioner is filing the PIL to secure constitutional ethos of Articles 14, 16 and 21 of the Constitution of India.”
“Centre and State Government is likely to be affected by the orders sought and have been impleaded as Respondents. No other persons, bodies, institutions are likely to be affected by the order sought in PIL.”
“Petitioner has not submitted any representation to the respondents. There is no requirement to move concerned authority for relief sought in this writ petition. There is no other remedy available.”
Petitioner gave the following details about DMRC’s work expansions and related appointment procedures,
Petitioner submits that the Delhi Metro Rail Corp. Ltd (DMRC) was registered on 3rd May 1995 under the Companies Act, 1956 with equal equity participation of the Government of National Capital Territory of Delhi and the Central Government to implement the dream of construction and operation of a world-class Mass Rapid Transport System (MRTS).
Starting from that time it has now constructed a massive network of about 389 Km with 285 stations in Delhi and NCR. The DMRC today has over 300 train sets. The network has crossed the boundaries of Delhi to reach NOIDA-Ghaziabad in UP, Gurgaon, Faridabad, Bal1adurgarh and Ballabhgarh in Haryana. Apart from operating a large network, DMRC is also constructing its fourth phase costing more than Rs. 20,000 Cr of public exchequer. It is constructing three lines totaling more than 65 Km and 45 stations, both elevated and underground. Phase 4 was to be completed by Dec.2024 but now likely to be completed by year 2026 due to impact of Covid pandemic. DMRC is also undertaking metro related consultancy assignments within the country as well as abroad. DMRC has a huge exposure to real state within and external to its premises that contributes a substantial part of its revenue and now has huge debt on its shoulders.
Petitioner submits that despite being such a mammoth organization with its projects developing even outside Delhi, State has shown discrimination when accepting candidates for the post of Managing Director, the most important post of the Organization. Moreover, the State Government, which extended the tenure thrice citing the reason of non-availability of most competent and experienced person, suddenly declared the employees of Lucknow Metro, Chennai Metro, Maha Metro, Bangalore Metro, Mumbai Metro, Kochi Metro outsider and decreased the upper age limit for application for them vide notice published in media on 10.2.2022.
The advertisement requires the candidates to be of not above 58 years of age for an external candidate, and 6o years for internals. The date of superannuation is 65 years, and the appointment is for a period of 5 years or the date of superannuation, whichever is earlier.
Requirements of tenure and superannuation are uniform for external and internal candidates. Thus, the external candidate must have 7 years of time left to reach the age of retirement while the job is only for 5 years. The external candidate is thus expected to retire at 63 years and not 65 years. It is evident that there is a mismatch or discrimination. This will increase the work load of the organization which would in turn be taxed on the common man. This will also reduce the basket of candidates for selection and decrease the possibility of choosing the candidate best suited for the post. In fact, it is blatantly obvious that this is being done to favor one internal employee, as many internal candidates have more experience than him, and have retirement age of 62 years for Board level positions.
State in recent past have invited applications for Director Finance and Director Operations at different times and age criterion in both these positions are uniform. The appointment will be on contract basis, for a period of 5 years, or, the date of superannuation, whichever is earlier. As per the terms of eligibility an external candidate having only 3 years of service left to superannuation is considered eligible by DMRC to apply for these Director level positions which has a contractual tenure of 5 years. The same is 2 years for internal candidates. At the same time for the same organization the requirements for the Managing Director are to have 7 years of service left which is 2 years more than the tenure itself. This requirement is unjust, erroneous and against any logic and need to be corrected by Government of NCT of Delhi. This, apart from removing an anomaly presently set, would also help in widening the bouquet of competent and experienced candidates available to the Government by inclusion of the experienced professionals at the shortlisting stage.
All Metro Rail Organizations like Lucknow Metro, Bangalore Metro, Maha Metro, Koehl Metro, Mumbai Metro and Chennai Metro etc. are uniformly coordinated under the Union Ministry of Housing and Urban Development in JV with respective state governments. The Secretary, Ministry of Housing and Urban Development, Govt. of India is the Chairman of all these companies. These companies operate under the same Metro Acts and adopt similar guidelines of Schedule of Power, organizational structure and job responsibilities. Hence, considering the employees of Delhi Metro as Internal and employees of Lucknow Metro, Chennai Metro, Mumbai Metro etc. as external is arbitrary irrational and violative of Articles 14 and 21. There can't be any reservation and discrimination in age limit when applying for a solitary and extremely specialized post like Managing Director and Chief Operating Officer and this has been reiterated by Supreme Court's Constitution Bench in Post Graduate Institute of Medical Education and Research (1998 4 SCC 1)
COMMISSIONER MCD V. SHASHI, 2009 SCC ONLINE DEL 2779; INDRA SAWHNEY VERSUS UNION OF INDIA, AIR 1993 SC 477; E.P. ROYAPPA VERSUS. STATE OF TAMIL NADU, 1974 AIR 555; T.C. BASAPPA v. T. NAGAPPA, AIR 1954 SC 440, are few cases the petitioner has cited in the Writ petition.
Ashwini Upadhyay in the writ petition prayed that, keeping in view the stated facts and circumstances, Court may be pleased to issue appropriate writ order direction to respondent to:
- Direct and declare that the Government of NCT of Delhi's Notification dated 10.2.2022 is not only manifestly arbitrary, irrational, unfair and contrary to the due procedure of Law, but also violates Articles 14, 16, 21 of the Constitution, hence, void and inoperative;
- Direct and declare that the upper age limit for the post of Managing Director-DMRC, which is not only extremely specialized and requires the most competent and experienced person but also an unreserved and sole post; cannot be arbitrary, irrational and discriminatory;
- Direct & declare that upper age limit for the post of Managing Director shall be uniform (6o years) and candidates who were eligible on the date of vacancy i.e., 1.10.2021, shall be eligible to apply for the post
- Pass such other order(s) and/or direction(s) as this Hon'ble Court deems fit and proper in facts and circumstances of the case and to secure the constitutional ethos enshrined in Articles 14, 16 and 21.
