Full Judgment Text
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 04.10.2023
+ LPA 368/2014
SURJIT RAI @ SURJIT GAUR ..... Appellant
Through: Mr V.S.R. Krishna and Mr V.
Shashank Kumar, Advocates.
versus
NATIONAL BAL BHAWAN & ORS. ..... Respondents
Through: Mr S. Rajappa, Advocate for
Respondent No. 1 to
Respondent No. 3.
Mr R. Gowrishankar, Advocate
for Respondent No. 4.
Ms Pratima N. Lakra, CGSC
with Ms Vanya Bajaj and Mr
Kashish G. Baweja, Advocates
for Respondent no.5.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE AMIT MAHAJAN
VIBHU BAKHRU, J.
1. The appellant has filed the present intra court appeal impugning
the judgement dated 22.05.2013 (hereafter ‘ the impugned
judgment ’) passed by the learned Single Judge of this Court in
W.P.(C) No. 2828/1998 captioned Surjit Rai @ Surjit Gaur v.
National Bal Bhawan & Others . The appellant had filed the aforesaid
Writ Petition challenging the appointment of respondent no. 4 as a
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By:DUSHYANT
RAWAL
Signing Date:09.10.2023
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Supervisor Bal Bhawan Kendra (BBK) under respondent no. 1
(National Bal Bhawan).
2. The learned Single Judge found that the appellant’s challenge to
the appointment of respondent no. 4 as a Supervisor, BBK was
founded on his claim that he was entitled to be selected for the said
post. The Court noted that the appellant was not found suitable and
therefore, was not selected. Further, no waiting list was prepared but
another candidate, Ms. Yogendra Budhiraja, was placed in the waiting
list. Thus, even if the appellant’s challenge was accepted and the
appointment of respondent no. 4 was quashed, the appellant would not
be entitled to any benefit. The Court also felt that there was a minor
discrepancy in the qualification of respondent no. 4, but considering
that she had discharged her duties on the said post since the year 1996-
97, it was not a fit case to exercise its discretion under Article 226 of
the Constitution of India.
3. The controversy in the present context relates to qualification of
respondent no.4 to be appointed as a Supervisor, BBK.
4. On 24.06.1996, respondent no.1 issued an advertisement for
filling up two posts (one in General Category and one in ST Category)
of Supervisor, BBK. The essential qualifications of candidates were
prescribed as senior secondary or any equivalent qualification from a
recognized board and a degree or diploma in Fine Arts with the
minimum of three years’ experience of working with children. The
candidates were also required to have managerial qualities. In
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RAWAL
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addition, it was desirable that the candidates have interest in one or
more Arts, Crafts, Music, Dance, Drama, Literature etc.
5. A total number of 135 candidates applied for the said posts.
After sifting the applications, 14 candidates belonging to the General
Category and 3 candidates belonging to ST Category were called for
interview. The candidates were interviewed by the Selection
Committee. The appellant was also one of the candidates called for
interview however, he was not found suitable for the post.
6. On 18.03.1997, the Selection Committee recommended
respondent no. 4 for the appointment to the post of Supervisor, BBK.
Respondent no.4 was, thereafter, appointed to the post of Supervisor,
BBK (General Category) and joined her duties with effect from
26.04.1997. She has been employed with respondent no.1 since the
said date.
7. There were complaints regarding appointment of respondent no.
4, which were considered by various authorities. It is stated by
respondent no.1 that none of the concerned authorities found any
merit in the complaints.
8. The appellant as well as Employees Association had
complained that respondent no. 4 did not possess the requisite
qualifications and did not satisfy the eligibility criteria as set out in the
advertisement for inviting applications for the said post.
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9. An Inquiry Committee comprising of Assistant Director,
Science and Assistant Director, Administration was set up by
respondent no. 2. The said Committee submitted a report in
November, 1997. The Inquiry Committee found that at no stage of
scrutinising the application or conducting the interviews, any of the
officials had pointed out any inadequacy in the qualifications
possessed by respondent no. 4. The Inquiry Committee found that
respondent no.4 had done a matriculation and had cleared a pre-
university exam, which was equivalent to senior secondary school
qualification. She had a degree of Bachelor of Arts from Delhi
University. In addition, she had completed Part-I of Senior Diploma
in Sangeet Bhushan, however, that was not equivalent to the diploma
in Fine Arts. Respondent no.4 had music as a subject at pre-university
in BA-I Level and therefore, satisfied the desirable condition of
having interest in one of the Arts.
10. According to respondent no.1, respondent no. 4 had satisfied the
essential qualifications as she had a degree in Bachelor of Arts from
Delhi University. The essential qualification of “ Degree or Diploma in
Fine Arts ” was interpreted to mean any degree, or a diploma in Fine
Arts. Since respondent no. 4 had a degree of Bachelor of Arts, there
was no requirement for her to hold a diploma in Fine Arts. According
to respondent no.1, the qualification of holding a degree was not
further qualified to mean only a degree in Fine Arts. However, the
Inquiry Committee found that the said interpretation did not seem to
be correct.
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RAWAL
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11. The relevant extract of the said report, which is relied upon by
the appellant, is set out below:
“1.8 Interpretation of eligibility clause:
The National Bal Bhavan Society has interpreted the
eligibility clause to mean
(i) Senior Secondary or equivalent
with
(any) degree
or
Diploma in Fine Arts
If this interpretation is assumed to be correct than
Smt. Sharma who possesses a degree from Delhi
university fulfils the eligibility condition and
Diploma in Fine Arts’ is only an alternative for
Degree (Degree not necessarily in Fine Arts).
However this interpretation does not seem to be
correct. For reaching a correct interpretation the
qualification clause could be split into following two
parts:
(i) one relating to general academic
qualification and
(ii) the other relating to professional
qualification.
The term senior secondary or equivalent covers
the former and the ‘Diploma in Fine Arts’ cover the
latter.
The term “Degree” used in the clause could be
read in the context of professional qualification and
could mean only “Degree in Fine Arts”.
This interpretation is supported by the provision
of Final Recruitment Rules also which were then in
the process of being framed and now stand
promulgated. The new rule provides Senior
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RAWAL
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Secondary as academic qualifications with degree in
fine arts as professional qualification or degree as
academic qualification and diploma in fine arts as
professional qualification.”
12. There was also a controversy whether respondent no. 4 had the
requisite experience of working with children. Respondent no. 4 was
employed with the Exploitation Removal Board (Shoshan Unmoolan
Parishad) – an organization, which was aided by the Government of
India. The said organisation was engaged in setting up centers for
welfare of Scheduled Castes/Scheduled Tribes students and imparting
training in the areas of tailoring, cutting, stenography etc. During her
tenure with Exploitation Removal Board, respondent no.4 had
experience of teaching (cutting and tailoring) to children of above the
age of thirteen years. In addition, she had also arranged special classes
while working as an Assistant Director. She had also examined
monthly and other tests, which were conducted by Exploitation
Removal Board.
13. The Inquiry Committee found that respondent no.4 was
employed with the Exploitation Removal Board from 01.04.1990 to
24.04.1996 and that the Exploitation Removal Board was engaged in
imparting training in cutting and training amongst other courses. The
Inquiry Committee found that Selection Committee’s assessment to
accept respondent no. 4’s experience with trainees in Exploitation
Removal Board as the requisite experience, could not be faulted.
14. The learned counsel appearing for the appellant earnestly
contended that respondent no. 4 did not meet the eligibility criteria as
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she did not have a degree or diploma in Fine Arts. He also contended
that respondent no. 4’s qualification of completing Part-I of senior
diploma in Sangeet Bhushan could not be considered as a qualification
in Fine Arts because music is not a Fine Art. According to him, the
fact that respondent no. 4 had music as a subject at pre-university and
BA-I Level was also of no consequence for the same reason.
1
15. The Nex Lexicon Webster’s Dictionary defines the expression
‘Fine Arts’ as under:
“Those arts concerned with beauty rather than utility, i.e.,
usually including poetry and music but sometimes limited
to painting, sculpture and architecture”.
2
16. In O’Sullivan v. English Folk Dance and Song Society , Per
Jenkins L.J. had observed as under:
“I am prepared to accept the wider meaning assigned to
the ‘fine arts’ in the definitions and to treat them as
including, for example, poetry, eloquence, and music as
well as such ‘arts of design’ as painting, sculpture, and
architecture. We are indeed bound for the present purpose
to include music amongst them. It is possible that
dramatic art should also be included”.
17. We are unable to accept that music is not fine art and any
qualification in Music could not be a qualification in fine arts.
18. The question whether the degree in Bachelor of Arts from Delhi
University was sufficient to meet the criteria of “ Degree or Diploma
1
The New Lexicon Webster’s Dictionary of the English Language (1988th ed.). (n.d.). (Vol. 1).
Lexicon Publications, Inc.
2
[1955] 1 W.L.R. 907
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in Fine Arts ” is a contentious issue. As noted by the Inquiry
Committee, respondent no. 1 has interpreted the said qualification to
mean either a degree in any subject or a diploma in Fine Arts.
According to respondent no. 1, a person who had successfully
completed a degree course would satisfy the eligibility criteria.
However, if the candidate had not done so, it was essential that the
candidate held a diploma in Fine Arts. According to appellant, the said
interpretation is incorrect and it was necessary for a candidate to either
have a degree in Fine Arts or a diploma in Fine Arts.
19. Undisputedly, the Selection Committee had proceeded on the
basis that respondent no. 4 had satisfied the eligibility criteria by
virtue of holding a degree in Bachelor of Arts from Delhi University.
Neither the Selection Committee nor any of the officials of respondent
no.1 had raised any issue regarding respondent no.4’s not meeting the
eligibility criteria during the selection process.
20. Respondent no.1 is the employer and had issued the
advertisements. It had prescribed the eligibility criteria for the post in
question. Therefore, its interpretation of the eligibility criteria must be
accepted in the event of any ambiguity.
21. It is also well settled that a remedy under Article 226 of the
Constitution of India is a discretionary remedy.
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3
22. In Thansingh Nathmal v. Superintendent. of Taxes , the
Supreme Court held as under:
“7. ….The jurisdiction of the High Court under Article 226 of
the Constitution is couched in wide terms and the exercise
thereof is not subject to any restrictions except the territorial
restrictions which are expressly provided in the Articles. But
the exercise of the jurisdiction is discretionary: it is not
exercised merely because it is lawful to do so.
23. In Century Spinning and Manufacturing Company Ltd. &
4
Another v. Ulhasnagar Municipal Council & Another , the Supreme
Court held as under:
“8. The High Court may, in exercise of its discretion, decline
to exercise its extraordinary jurisdiction under Article 226 of
the Constitution. But the discretion is judicial if the petition
makes a claim which is frivolous, vexatious, or prima facie
unjust, or may not appropriately be tried in a petition
invoking extraordinary jurisdiction, the Court may decline to
entertain the petition.”
24. We find no infirmity with the decision of the learned Single
Judge in refraining from entertaining the petition in the given facts
and circumstances of the case.
25. It is also pointed out by Mr Rajpappa, learned counsel
appearing for respondent no. 1, that respondent no. 4 will retire from
services in February, 2024 after a satisfactory continuous service
spanning about 27 years.
3
1964 SCC OnLine SC 13
4
(1970) 1 SCC 582
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RAWAL
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26. In view of the above, we are not persuaded to accept that any
interference with the impugned order is warranted.
27. The appeal is, accordingly, dismissed.
VIBHU BAKHRU, J
AMIT MAHAJAN, J
OCTOBER 04, 2023
RK
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RAWAL
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