Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 10824/2016
(Arising out of Special Leave Petition (C) No(s). 28948/2016)
DELHI SUBORDINATE SERVICES SELECTION BOARD APPELLANT(S)
VERSUS
PRAVEEN KUMAR RESPONDENT(S)
J U D G M E N T
1. Heard learned counsel appearing for the parties.
2. Leave granted.
3. The Delhi Subordinate Services Selection Board
(hereinafter referred to as the 'Appellant Board') seeks to
impugne the legality of the judgment and order dated
20.07.2016 passed by the High Court of Delhi in Writ Petition
No. 3104 of 2016 whereby the High Court has affirmed the order
Signature Not Verified
of the Central Administrative Tribunal (CAT) which directed
Digitally signed by
ASHWANI KUMAR
Date: 2016.12.13
14:47:11 IST
Reason:
the Appellant Board to consider the candidature of the
respondent for selection and appointment as Teacher (Primary)
2
in MCD Schools by giving him age relaxation upto 32 years,
provided he does not exceed the upper age limit of 32 years as
on the cutoff date, i.e. 15.01.2010, and he fulfills all other
eligibility conditions as stipulated in the advertisement.
4. The facts giving rise to filing of this appeal can be
summarized as under:
5. The Appellant Board has been incorporated with the
purpose of recruiting competent individuals by conducting
written tests, personal interviews etc. for the user
departments. In the present case, on the request of the
Municipal Corporation of Delhi (MCD), an advertisement for the
post of Teacher (Primary) in MCD Schools, along with other
posts, was published on 07.11.2009 by the Appellant Board. As
per the advertisement, the age limit for candidates for the
post of Teacher (Primary) was 20-27 years and relaxations were
applicable as per rules. Subsequently, the Appellant Board
issued addendum of advertisement on 13.09.2011 informing that
pursuant to the directions of the CAT dated 20.07.2010, the
Recruitment Rules for the said post have been modified by the
MCD and the cutoff date was stated to be 15.01.2010 for
calculating the age limit. The Appellant Board prepared the
Marks List of 20,014 candidates and uploaded the same on its
website on 08.07.2014. On the basis of the Marks List, the
3
MCD, being the user department, approved the checklist as per
Recruitment Rules and classified all cases as provisionally
selected. Final result was published in public domain on
05.12.2014, in respect of candidates being selected, rejected
or whose candidature was kept pending while mentioning the
reason thereof. The Appellant Board also published the names
of ineligible candidates wherein the respondent's name also
appeared, declaring him as 'not eligible' and the reason for
his ineligibility was mentioned as 'over age'.
6. In the instant case, the respondent claimed eligibility
before the CAT by filing an Original Application for the post
of Teacher (Primary) in the MCD Schools challenging the reject
notice dated 05.12.2014. The respondent herein sought relief
from the Courts below relying upon the judgment of the Delhi
High Court in the case of Sachin Gupta vs. DSSSB & Ors.
decided on 28.08.2008. Following the said judgment, the CAT as
well as the High Court directed the Appellant Board to give
age relaxation to the respondent. The Appellant Board, being
aggrieved by the impugned order dated 20.07.2016 passed by the
High Court, is before us in this appeal.
7. If one goes strictly by the eligibility conditions
stipulated in the advertisement or the Rules for recruitment
to the post of Teacher (Primary), it cannot be disputed that
4
the upper age limit for consideration to appointment to the
aforesaid post is 27 years. It means that any person who has
attained the age of 27 years renders himself/herself
ineligible to apply for the said post. Notwithstanding the
same, benefit of age relaxation was given to the respondent
herein relying upon the judgment of Delhi High Court in Sachin
Gupta's case. Therefore, the first question for consideration
is as to whether that judgment can be made applicable in the
case of the respondent as well.
8. A copy of the said judgment dated 28.08.2008 passed in
Sachin Gupta's case was produced before us and we have gone
through it. On going through this judgment, one finds that, in
that case, challenge was made to the Notification dated
13.07.2007, vide which Recruitment Rules for the appointment
to the post of Assistant Teacher (Primary) in the Government
of NCT, Delhi or Municipal Corporation of Delhi, as being
unconstitutional, illegal and arbitrary. These rules were
promulgated by exercising the power by virtue of proviso to
Article 309 of the Constitution. Insofar as the Government of
NCT, Delhi is concerned, it exercised power under Section 98
read with Section 480(2) of the Delhi Municipal Corporation
Act, 1957, qua MCD. Vide these rules minimum and maximum
eligible age for the candidates to the said post was fixed at
20-27 years respectively. However, before the promulgation of
5
these Rules, as per the earlier Rules the upper age limit was
32 years for male candidates and 42 years for female
candidates. The main ground of the challenge was that by
notification of such Rules petitioners therein had lost their
chance as there was legitimate expectation given to them that
they would be eligible till the age of 32 years. It was
argued that the prospectus of the two years Elementary
Teachers Education course expressly professed that it was
“ carefully designed to prepare teachers at elementary level in
Delhi ” and contained a minimum and maximum age of enrollment
as 17 and 30 years respectively, thereby representing that
aspirants between 19 to 32 years would be eligible for
appointment to the post of teachers in Delhi. The High Court
rejected the aforesaid contention and even other contentions
raised by the petitioners. It was further held that the Rules
were statutory and had legislative character and such Rules
could not be challenged on the ground of mala fides. It was
also held that the doctrine of legitimate expectation has no
application. Following portion of the judgment of the High
Court discussing these aspects is worth a mention and the same
is re-produced as under:
“ 45. Since the impugned RRs have been
notified by the MCD and Government of NCT of
Delhi by virtue of power conferred under
Section 98 of DMC Act and by virtue of proviso
6
to Article 309 of the Constitution
respectively, we are of the view that the
impugned RRs are statutory and legislative in
character. In V.K. Sood Vs. Secretary, Civil
Aviation & Ors. Reported in (1993) Supp 3 SCC 9
the Apex Court recognized this legal position
when it held:-
“3.......It would thus be clear that
the rules made by the President or
authorized person under proviso to
Article 309 are subject to any law made
by the Parliament and the power
includes rules regulating the
recruitment and the conditions of
service or post. They are statutory and
legislative in character. The statutory
rules thus made are subject to the law
that may be made by the
Parliament......”
(emphasis supplied)
46. It is further settled law that the courts
must approach subordinate legislative
instruments with considerable amount of
caution. Presumption of constitutionality and
reasonableness ordinarily attached to
legislative enactment, applies to statutory
rules also. In P.V. Mani & Ors. Vs. Union of
India reported in AIR 1986 Kerala 86 a Full
Bench of Kerala High Court observed as under:-
“....It is therefore needless to add
that the Courts shall approach
subordinate legislative instruments
with considerable amount of caution and
examination for absence of competence
or reasonableness or fairness and other
invalidating circumstances with almost
the same standards as legislative
enactments are dealt with by courts.
The presumption of constitutionality,
competence and reasonableness
ordinarily attaches to such instruments
just as much as to legislative
enactments, as is evident from the
following observations from
7
“Administrative Agencies and the
Courts” by Cooper:-
“ Where the legislature has clearly
delegated such authority, the only
issue that can normally be raised as to
the validity of the rule concern the
question whether it is ultra vires as
exceeding the scope of the authority
delegated, and whether it is violative
of due process guarantees. These issues
are not often presented and accordingly
such regulations are normally treated
on the same basis as legislative acts.
It is not that such instruments are
absolutely immune from attacks. But
such attacks should be considered only
on production of prima facie proof as
to such invalidating circumstances. The
Court shall not assume that a
subordinate legislative instruments is
invalid for absence of competence or
bona fides or fairness or
reasonableness and cast the negative
burden on the rule-making authority. It
should be just the other way; the
person who challenges the vires of a
rule has to prove his challenge just as
much as a person who challenges a
legislative enactment. If he fails in
such attempt the challenge can only be
thrown out.....”
(emphasis supplied)
47. In Khoday Distilleries Ltd. v. State of
Karnataka reported in (1996) 10 SCC 304 para 13
it has been held that the test of the
arbitrariness applicable to the delegated
legislation is different from the one
applicable to executive actions. The relevant
portion of the said judgment is reproduced for
ready reference:-
“13. It is next submitted before us
that the amended Rules are arbitrary,
8
unreasonable and cause undue hardship
and, therefore, violate Article 14 of
the Constitution. Although the
protection of Article 19(1)(g) may not
be available to the appellants, the
rules must, undoubtedly, satisfy the
test of Article 14, which is a
guarantee against arbitrary action.
However, one must bear in mind that
what is being challenged here under
Article 14 is not executive action but
delegated legislation. The tests of
arbitrary action which apply to
executive actions do not necessarily
apply to delegated legislation. In
order that delegated legislation can be
struck down, such legislation must be
manifestly arbitrary; a law which
could not be reasonably expected to
emanate from an authority delegated
with the law-making power. In the case
of Indian Express Newspaper (Bombay)
(P) Ltd. V. Union of India (SCR at
p.243) this Court said that a piece of
subordinate legislation does not carry
the same degree of immunity which is
enjoyed by a statute passed by a
competent legislature. A subordinate
legislation may be questioned under
Article 14 on the ground that it is
unreasonable; “unreasonable not in the
sense of not being reasonable, but in
the sense that it is manifestly
arbitrary”. Drawing a comparison
between the law in England in India,
the Court further observed that in
England the judges would say,
“Parliament never intended the
authority to make such Rules; they are
unreasonable and ultra vires”. In
India, arbitrariness is not a separate
ground since it will come within the
embargo of Article 14 of the
Constitution. But subordinate
legislation must be so arbitrary that
it would not be said to be in
conformity with the statute or that it
offends Article 14 of the
9
Constitution.”
48. Further, as the Rules are legislative in
character they cannot be challenged on the
grounds of malafides. In Capt. B.D. Gupta V.
State of U.P. reported in 1991 Supp(1) SCC 1
para 1 of the Supreme Court held:-
“17....If the Rules were framed for
making regular appointments in the
Civil Aviation Department, there was
no reason whey they should have been
confined only to three posts which
included the post of Director.
Secondly, he pointed out that whereas
the post of Director was not a
promotional one earlier and was,
therefore, open to external candidates
as well, it was made promotional to
suit Captain Singh. These
circumstances according to us do not
prove the mala fides. Admittedly, the
Rules are made under Article 309 of
the Constitution of India and are,
therefore, a piece of legislation. It
is well settled that no legislation
can be challenged on the ground of
mala fides......”
49. In our opinion, the doctrine of
legitimate expectation, referred to by the
petitioners, has no application to the present
case as the Respondents have never represented
or held out to any student entering into an ETE
course, that he would be given employment with
the Respondents. In fact, ETE is a professional
training course and the candidates securing
such degrees are free to pursue other career
options all over India with other agencies as
well . The course does not confer any vested
rights or employment with either the Government
or MCD. In view of the absence of any
representation regarding employability with the
Respondents alone upon completion of a
qualifying course, the petitioners' plea of
legitimate expectation merits no acceptance.”
10
9. The High Court also accepted the well recognized
principle that it is the employer's prerogative to decide the
age limit and academic suitability of candidates which they
wish to employ and so long as the same are not contradictory
to the academic eligibility as prescribed by the NCTE Act, any
challenge to the same, merely because it renders some
candidates ineligible, ought to be rejected. Fixing of such
age limit for a given post is a matter of policy as held by
this Court in Union of India & Ors. vs. Shivbachan Rai
reported in 2001 (9) SCC 356.
10. After rejecting the contentions on merits and upholding
the validity of the Recruitment Rules, the Court went into the
issue of hardship because of sudden reduction in the upper age
limit and only on that ground one time relaxation was given to
the petitioners in the said petition. A direction was given to
permit all those candidates who had completed the ETE course
either in the year 2006 or 2007 or 2008 to appear in the
examination. Thus, this was one time relaxation given for the
examination which was to be conducted in the year 2008, in
order to ameliorate the hardship.
11. Once, we understand the contours and scope of the
judgment and directions, it becomes abundantly clear that the
11
said judgment of the High Court in Sachin Gupta's case cannot
be made applicable for all times. The respondent herein was
not the candidate in the recruitment to the said post in the
year 2008. On the contrary, he applied for the post pursuant
to the advertisement published in the year 2009. In the
impugned judgment the High Court has failed to consider the
aforesaid analysis of its earlier judgment in Sachin Gupta's
case.
12. We, therefore, allow this appeal and set aside the
judgment of the High Court as also that of the CAT.
......................J.
[A.K. SIKRI]
......................J.
[R. BANUMATHI]
NEW DELHI;
NOVEMBER 11, 2016.
12
ITEM NO.44 COURT NO.10 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 28948/2016
(Arising out of impugned final judgment and order dated 20/07/2016
in WPC No. 3104/2016 passed by the High Court Of Delhi At New
Delhi)
DELHI SUBORDINATE SERVICES SELECTION BOARD Petitioner(s)
VERSUS
PRAVEEN KUMAR Respondent(s)
(with appln. (s) for exemption from filing c/c of the impugned
judgment)
Date : 11/11/2016 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MRS. JUSTICE R. BANUMATHI
For Petitioner(s) Mr. Chander Uday Singh, Sr. Adv.
Mr. Chirag M. Shroff, Adv.
Mr. Rishi Kumar Singh Gautam, Adv.
Mr. Vaibhav C., Adv.
Ms. Neha Sangwan, Adv.
Mr. Ajit kumar Sinha, Sr. Adv.
Mr. R.K. Rathore, Adv.
Mr. B.K. Prasad, Adv.
Mr. D.S. Mehra, Adv.
For Respondent(s) Mr. Ashwani Bhardwaj,Adv.
Mr. Amit Kumar, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The civil appeal is allowed in terms of the signed judgment.
Pending application(s), if any, stands disposed of
accordingly.
(Ashwani Thakur) (Mala Kumari Sharma)
COURT MASTER COURT MASTER
(Signed reportable judgment is placed on the file)