Delhi High Court
Smt. Sunita Bugga vs Director Of Education And Others on 30 July, 2010
Author: Dipak Misra
Bench: Chief Justice, Manmohan
* HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on : 6th July, 2010
% Judgment Pronounced on: 30th July, 2010
+ WP(C) No.8663/2008
SMT. SUNITA BUGGA ..... Petitioner
Through: Mr. Ravi Gupta, Sr. Adv. with
Mr. Sandeep Mittal, Adv.
Versus
DIRECTOR OF EDUCATION AND OTHERS ..... Respondents
Through: Ms. Purnima Maheshwari, Adv. for
Respondents 1 to 3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether reporters of the local papers be allowed to see the judgment?Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
Invoking the extraordinary jurisdiction of this Court under Article 226
of the Constitution of India, the petitioner, a trained graduate teacher (social
sciences) has prayed for declaring the Notification No.F.27(3)/94-Edn/1068-
1076 dated 4th November, 1999 issued by the Government of National
Capital Territory of Delhi (Education Department) as ultra vires Article 14
of the Constitution of India.
2. The facts which are imperative to be stated are that the petitioner was
appointed as Assistant Teacher in the R.M. Arya Girls Senior Secondary
School in 1977 and was promoted as TGT (Social Sciences) in August,
W.P.(C) No.8663/2008 Page 1 of 22
1983. The post of PGT (Sanskrit) fell vacant in the school in November,
1992. The petitioner, who was teaching Sanskrit in Classes X to XII for
certain academic sessions, was not promoted as she was not found eligible
for the post of PGT (Sanskrit) by the Departmental Promotion Committee
(DPC) which met on 5th May, 2007. Though various averments have been
made with regard to the findings arrived at by the DPC and the deliberations
made by it, yet the same do not really deserve to be dwelled upon in the
present case since the acid test is whether the relevant rules 96, 98 and 108
of the Delhi School Education Rules, 1973 (for short „the rules‟) on a proper
interpretation help and assist the petitioner to meet the eligibility criteria and
further whether the notification plays foul with Article 14 of the Constitution
of India.
3. It is asserted in the petition that the introduction of the amendment in
the eligibility criteria which deals with promotion is not in consonance with
the Rules 96 and 98 of the rules and certain pronouncements in the field. Be
it noted, apart from making some bald allegations, nothing else has been
averred as to how the notification really invites the frown of Article 14 of
the Constitution.
4. A counter affidavit has been filed by respondent Nos. 1 to 3
contending, inter-alia, that the petitioner is a TGT (Social Study) having
done her post graduation in public administration/ Political Science/Sanskrit
whereas the selected candidate was TGT (MIL) Sanskrit and she had done
W.P.(C) No.8663/2008 Page 2 of 22
M.A. in Sanskrit. It is urged that the Director of Education vide letter dated
29th August, 2007 clarified that the selected candidate deserved to be
appointed as she was TGT (MIL) Sanskrit and was qualified as per the
recruitment rules. It is also put forth that the notification brought on 4th
November, 1999 is not violative of Article 14 of the Constitution.
5. The constitutional validity of the notification that has been called in
question reads as follows:-
"No.F.27(3)/94-Edn:- In exercise of the powers conferred by proviso
to article 309 of the Constitution, read with the Government of India,
Ministry of Home Affairs‟ Notification No.F.27/5- Him (I), dated the
13 July 1959, the Lt. Governor of the National Capital Territory of
Delhi is pleased to make the following amendments in the schedule
annexed to the notification No.F.2(41/72-S.II) dated 10.07.1975 and
F.27(3)/94-Edn dated 26.02.1996, as amended from time to time,
containing the Rules regarding the method of recruitment and
qualifications necessary for appointment to the „Post‟ of Lecturer
excluding (1) Lecturer - (Paining, Commercial Art/Graphic Sculpture/
Engineering Drawing), (2) Lecturer)- Home Science/Domestic
Science, (3) Lecturer - Music and (4) Lecturer - physical Education
in the Directorate of Education of this Government, namely:-
Amendment
In the schedule annexed to the said notifications, the following
amendment be made:
7
Columns No.12: Promotion
1. T.G.T. in the scale of Rs.1400-2600/- (pre-revised) possessing
Post Graduate Diploma of 2 Years duration in science from Delhi
University with 5 years regular service in grade.
Or
TGT/Language Teachers in the scale of Rs.1400-2600/- (pre-revised)
possessing qualifications prescribed for direct recruitment and with 5
years regular service in the grade.
W.P.(C) No.8663/2008 Page 3 of 22
2. For the posts of Lecturer in Hindi, Sanskrit, Punjabi etc. only
Trained Graduate Teachers/ Language Teaches in Sanskrit and in
Modern Indian Language concerned will be considered for promotion
in their respective subjects. For the post of Lecturer in other subjects
only Trained Graduate Teachers (Science „A‟ science „B‟, commerce,
Agriculture and General) will be considered.
(NATHU SINGH)
ADDITIONAL SECRETARY (EDN)
No.F 27(3)/94-Edn/1068-1076 dated: 4.11.99"
6. On a perusal of the said notification, it is manifest that the schedule
that was annexed to the notification dated 10th July, 2005 and 26th February,
1996 which dealt with the method of recruitment and qualifications
necessary for appointment to the post of Lecturer barring certain posts has
been amended. Clause 2 stipulates that for the posts of Lecturer in Hindi,
Sanskrit, Punjabi, etc., only trained graduate teachers/language teachers in
Sanskrit and in modern Indian language concerned will be considered for
promotion in their respective subjects.
7. Mr. Ravi Gupta, learned senior counsel appearing for the petitioner,
has raised the following contentions:-
(a) The notification that has been issued runs counter to Rules 96, 98 and
108 and when there is visible transpiration, the same has to be set at naught.
(b) The classification made in the notification between the trained
graduate teachers who are senior but come from different faculties and the
trained graduate teachers who have been incorporated in Clause 2 of Column
W.P.(C) No.8663/2008 Page 4 of 22
12 is totally arbitrary and has no nexus with the object sought to be achieved
and invites the wrath of Articles 14 and 16 of the Constitution of India.
(c) By virtue of the amendment in the notification, the chances of
promotion of the petitioner has been totally curtailed and curbed and,
therefore, it is fully unreasonable and invites the frown of Article 14 of the
Constitution.
8. Ms. Purnima Maheshwari, learned counsel for the respondent Nos. 1
to 3, resisting the aforesaid submissions, canvassed as follows:-
(i) The stand put forth that the notification is contrary to the rules in
vogue is misconceived as the rules deal with a different sphere altogether
and the notifications from time to time have been dealing with the requisite
criteria for promotion. The question of the notification supplanting the rule
does not arise and, therefore, the submission in that regard is without any
substance.
(ii) When the post in question relates to Lecturer in a particular subject,
the teaching experience has in the said subject relevance and it cannot be
said that it has no rationale behind it. A teacher teaching in that subject
stands on a different footing and the classification made between two
categories of teachers is permissible and is not hit by Article 14 of the
Constitution.
(iii) An employee has a right to be considered for promotion but he can
have no grievance when his chances for promotion are curtailed as that rests
with the employer.
W.P.(C) No.8663/2008 Page 5 of 22
9. Though we have reproduced the notification and noted the
submissions of the learned counsel for the parties, yet we are obliged to state
that after narration of certain facts in the writ petition relating to certain
correspondences, reproduction of some rules and reference to certain
citations, namely, Chander Pal Jain & Another v. Delhi Administration
etc., 61(1996) DLT 464, T.M.A. Pai Foundation & Others v. State of
Karnataka & Others, 2002(8) Scale 1, Sushma Banga v. Delhi
Administration and Others, 2003 III AD (Delhi) 429, Valsala Kumari Devi
M. v. Director, Higher Secondary Education and Others, (2007) 8 SCC
533, Sonica Jaggi v. Lt. Governor & Others, 152(2008) DLT 601, the
prayer has been made to declare the notification as ultra vires Article 14 of
the Constitution of India despite the absence of any specific assertion as to
how the notification is violative of Article 14 of the Constitution of India.
10. It is well settled in law that a person who assails the constitutional
validity of an Act or a notification must specifically set forth the grounds for
such challenge. In this context, we may refer with profit to certain decisions
in the field.
11. In State of Uttar Pradesh v. Kartaar Singh, AIR 1964 SC 1135,
while dealing with the constitutional validity of Rule 5 of the Food
Adulteration Rules, 1955, their Lordships opined as follows:-
"(15).....if the rule has to be struck down as imposing unreasonable or
discriminatory standards, it could not be done merely on any a priori
reasoning but only as a result of materials placed before the Court by
W.P.(C) No.8663/2008 Page 6 of 22
way of scientific analysis. It is obvious that this can be done only
when the party invoking the protection of Art. 14 makes averments
with details to sustain such a plea and leads evidence to establish his
allegations. That where a party seeks to impeach the validity of a rule
made by a competent authority on the ground that the rules offend
Art. 14 the burden is on him to plead and prove the infirmity is too
well established to need elaboration."
12. In State of Andhra Pradesh and another v. K. Jayaraman and
others, AIR 1975 SC 633, it has been stated thus:-
"3. It is clear that, if there had been an averment, on behalf of the
petitioners, that the rule was invalid for violating Articles 14 and 16 of
the Constitution, relevant facts showing how it was discriminatory
ought to have been set out."
13. In Union of India v. E.I.D. Parry (India) Ltd., AIR 2000 SC 831, a
two Judge Bench of the Apex Court has expressed thus:-
"There was no pleading that the Rule upon which the reliance was
placed by the respondent was ultra vires the Railways Act, 1890. In
the absence of the pleading to that effect, the trial Court did not frame
any issue on that question. The High Court of its own proceeded to
consider the validity of the Rule and ultimately held that it was not in
consonance with the relevant provisions of the Railways Act, 1890
and consequently held that it was ultra vires. This view is contrary to
the settled law..."
14. In State of Haryana v. State of Punjab & another, (2004) 12 SCC
673, a two Judge Bench of the Apex Court has expressed thus:-
"82..... It is well established that constitutional invalidity (presumably
that is what Punjab means when it uses the word "unsustainable") of a
statutory provision can be made either on the basis of legislative
incompetence or because the statute is otherwise violative of the
provisions of the Constitution. Neither the reason for the particular
enactment nor the fact that the reason for the legislation has become
redundant, would justify the striking down of the legislation or for
holding that a statute or statutory provision is ultra vires. Yet these
are the grounds pleaded in sub-paragraphs (i), (iv), (v), (vi) and (vii)
to declare Section 14 invalid. Furthermore, merely saying that a
particular provision is legislatively incompetent [ground (ii)] or
W.P.(C) No.8663/2008 Page 7 of 22
discriminatory [ground (iii)] will not do. At least prima facie
acceptable grounds in support have to be pleaded to sustain the
challenge. In the absence of any such pleading the challenge to the
constitutional validity of a statute or statutory provision is liable to be
rejected in limine."
15. Though in the case at hand, no specific asseverations have been made,
yet as the learned counsel for the petitioner urged that the notification runs
counter to the rules and the amendment made has no rationale and no object
to achieve, we have thought it apt to address the same to put the controversy
to rest.
16. First, we shall address whether the notification runs counter to the
rules. The learned counsel has invited our attention to Rules 96, 98 and 108
of the rules.
17. Rule 96, which deals with recruitment, reads as follows:-
"96. Recruitment- (1) Nothing contained in this Chapter shall
apply to an unaided minority school.
(2) Recruitment of employees in each recognised private
school shall be made on the recommendation of the Selection
Committee.
(3) The Selection Committee shall consist of:-
(a) in the case of recruitment of the head of the school, -
(i) the chairman of the managing committee;
(ii) in the case of an unaided school, an
educationist is nominated by the managing
committee, and an educationist nominated
by the Director;
(iii) in the case of an aided school, two
educationists nominated by the Director, out
of whom at least one shall be a person
having experience of school education;
W.P.(C) No.8663/2008 Page 8 of 22
(iv) a person having experience of the
administration of schools, to be nominated,
in the case of an unaided school by the
managing committee, or in the case of an
aided school by the Director;
(b) in the case of an appointment of a teacher (other than
the head of the school),-
(i) the Chairman of the managing committee or
a member of the managing committee
nominated by the Chairman;
(ii) the head of the school;
(iii) in the case of a primary school, a female
educationist having experience of school
education;
(iv) in the case of an aided school, one
educationist to be nominated by the
Director, and one representative of the
Director;
(v) in the case of appointment of a teacher for
any class in the middle stage or any class in
the higher secondary stage, an expert on the
subject in relation to which the teacher is
proposed to be appointed, to be nominated,
in the case of an unaided school by the
managing committee, or in the case of an
aided school, by the Director.
(c) in the case of an appointment of any other employee,
not being an employee belonging to ["Group D"].
(i) the Chairman of the managing committee or
a member of the managing committee, to be
nominated by the Chairman;
(ii) head of the school;
(iii) a nominee of the Director;
(iv) in the case of an aided school, two officers
having experience of the administration of
school, to be nominated by the Director;
[(d) in the case of an appointment of a Group „D‟
employee:-
W.P.(C) No.8663/2008 Page 9 of 22
(i) the Chairman of the Managing Committee
or a member of the Managing Committee
nominated by the Chairman;
(ii) the head of the school;]
[(3-A) Notwithstanding anything contained in sub-rule (3), in
the case of an aided minority school, the educationists nominated
under paragraph (iii) of clause (a) of sub-rule (3), persons nominated
by the Director under paragraph (iv) of clause (a) of sub-rule (3),
educationists nominated under paragraph (iv) of clause (b) of sub-rule
(3), an expert nominated under paragraph (v) of clause (b) of sub-rule
(3), a person nominated under paragraph (iii) of clause (c) of sub-rule
(3), officers nominated under paragraph (iv) of clause (c) of sub-rule
(3), a person nominated under paragraph (iii) of clause (b) of sub-rule
(3), shall act only an advisers and will not have the power to vote or
actually control the selection of an employee.
(3-B) Notwithstanding anything contained in sub-rule (3), the
selection committee of a minority school shall not be limited by the
number specified in the said sub-rule and its managing committee
may fix such number.]
(4) Nomination of any educationist or expert as a member of
the Selection Committee shall be made out of a panel prepared for the
purpose by the Advisory Board.
(5) The Chairman of the managing committee, or, where he
is not a member of the Selection Committee, the member of the
managing committee who is nominated by the Chairman to be a
member of the Selection Committee, shall be the Chairman to the
Selection Committee.
(6) The Selection Committee shall regulate its own
procedure.
(7) Where any selection made by the Selection Committee is
not acceptable to the managing committee of the school, the managing
committee shall record its reasons for such non-acceptance and refer
the matter to the Director for his decision and the Director shall decide
the same.
(8) Where a candidate for recruitment to any post in a
recognised school is related to any member of the Selection
Committee, the member to whom he is related shall not participate in
the selection and a new member shall be nominated, in the case of any
W.P.(C) No.8663/2008 Page 10 of 22
aided school, by the Director, and in the case of any other school, by
the managing committee, in place of such member.
(9) No managing committee shall entertain any application
for employment from a person who is already serving as teacher in a
recognised school, whether aided or not, unless the application from
such person is duly forwarded by the manager of the school in which
such applicant is serving:
Provided that every application from such person shall be
forwarded by the manager, but any application in excess of three in a
year shall not be forwarded unless the managing committee, for
reasons to be recorded by it in writing, so directs:
Provided further that no such teacher shall be relieved of his
duties except after the expiry of a period of:-
(i) three months, in the case of a permanent teacher, from
the date on which notice of intimation to leave the school
is given; and
(ii) one month, in the case of a teacher who is not permanent,
from the date on which notice of intimation to leave the
school is given; and
Provided also where the managing committee is in a position to
provide for a substitute for such teacher earlier than the respective
period specified in the foregoing proviso, the managing committee
may relieve the teacher of his duties on the expiry of such earlier
period.
18. Rule 98, which provides for appointing authority, reads as under:-
98. Appointing authority- (i) The appointment of every employee of
a school shall be made by its managing committee.
[(2) Every appointment made by the managing committee of an
aided school shall, initially, be provisional and shall require the
approval of the Director:
Provided that the approval of the Director will be required only
where Director‟s nominee was not present in the Selection
Committee/DPC or in case there is difference of opinion among the
members of the Selection Committee:-
W.P.(C) No.8663/2008 Page 11 of 22
Provided further that the provision of this sub-rule shall not
apply to a minority aided school].
(3) The particulars of every appointment made by the managing
committee of an aided school shall be communicated by such
committee to the Director (either by registered post acknowledgment
due or by messenger who will obtain an acknowledgment of the
receipt thereof), within seven days from the date on which the
appointment is made.
(4) The Director shall be deemed to have approved an
appointment made by the managing committee of an aided school if
within fifteen days from the date on which the particulars of the
appointment are communicated to him under sub-rule (3), he does not
intimate to the managing committee his disapproval of the
appointment, [and the person so appointed shall be entitled for his
salary and allowance from the date of his appointment.]
(5) Where any appointment made by the managing committee
of an aided school is not approved by the Director, such appointment
may (pending the regular appointment to the post) be continued on an
adhoc basis for a period not exceeding three months and the salary
and allowances of the person so continued on an adhoc basis shall
qualify for the computation of the aid to be given to such school.
19. Rule 108, which provides for filling of vacancies, is as follows:-
108. Filling of vacancies- Every vacancy in an aided school shall be
filled by promotion or by the direct recruitment in accordance with
such rules as may be made by the administrator in this behalf."
20. The basic test is to determine whether a rule to have effect must have
its source of power which is relatable to the rule making authority.
Similarly, a notification must be in accord with the rules, if there is a
provision in the rule, as it cannot travel beyond it. In this context, we may
refer with profit to the decision in General Officer Commanding-in-Chief v.
Dr. Subhash Chandra Yadav, AIR 1988 SC 876 wherein it has been held as
follows:-
W.P.(C) No.8663/2008 Page 12 of 22
"......Before a rule can have the effect of a statutory provision, two
conditions must be fulfilled, namely (1) it must conform to the
provisions of the statute under which it is framed; and (2) it must also
come within the scope and purview of the rule making power of the
authority framing the rule. If either of these two conditions is not
fulfilled, the rule so framed would be void."
21. In Additional District Magistrate (Rev.), Delhi Administration v.
Shri Ram, AIR 2000 SC 2143, it has been held that it is a well recognized
principle that conferment of rule making power by an Act does not enable
the rule making authority to make a rule which travels beyond the scope of
the enabling Act or which is inconsistent therewith or repugnant thereto.
22. From the aforesaid enunciation of law, it is manifest that a rule has to
conform to the provisions of the statute and it should not travel beyond the
rule making power of the authority framing the rule. There cannot be
inconsistency between the Act and the Rules. Repugnancy is inconceivable.
23. In the case at hand, there is a notification which has been issued in
exercise of the power conferred by the proviso to Article 309 of the
Constitution read with the Government of India, Ministry of Home Affairs‟
Notification No.F.27/5-Him(I) dated 13th July, 1959. On a scanning of the
anatomy of the rules, it is absolutely clear that the said rules do not prescribe
the qualification criteria for appointment. The prescription in the rules relate
to recruitment, appointing authority and filling of vacancies. In the rule
which comes under the heading „recruitment‟, there is preference to the
selection committee, the concerned recommending authority, procedure to
W.P.(C) No.8663/2008 Page 13 of 22
be followed by the selection committee and the rule relating to appointing
authority lays down the procedure for appointment. Thus, the rules even
remotely do not suggest anything with regard to the qualification required
for promotion. As is perceived, the entire sphere of promotion is covered by
the notification and, therefore, the submission of the learned counsel for the
appellant that the notification runs counter to the rules is sans substance and
we hereby repel the same.
24. The next limb of submission of the learned counsel for the petitioner
pertains to discrimination inasmuch as by the notification, certain trained
graduate teachers have been made eligible to be appointed to the post of
Lecturer in Hindi, Sanskrit, Punjabi, etc. whereas the other trained graduate
teachers, who are senior, have been not treated equally. It is alleged by him
that the petitioner, who is a post graduate in Sanskrit, could not have been
kept away by the stipulation that a person who is teaching in Sanskrit alone
is eligible. The submission of the learned counsel for the petitioner is that
when a qualification is prescribed, it must have an object to achieve and
when the petitioner is a post graduate in Sanskrit and has taught Sanskrit
periodically, she should have been put in the same compartment.
25. In essence, the submission is that there is non-inclusion as a
consequence of which the classification becomes unreasonable. In this
regard, it is profitable to quote a passage from Mohammad Shujat Ali and
others v. Union of India and others, AIR 1974 SC 1631:
W.P.(C) No.8663/2008 Page 14 of 22
"26....The fundamental guarantee is of equal protection of the laws
and the doctrine of classification is only a subsidiary rule evolved by
courts to give a practical content to that guarantee by accommodating
it with the practical needs of the society and it should not be allowed
to submerge and drown the precious guarantee of equality. The
doctrine of classification should not be carried to a point where
instead of being a useful servant, it becomes a dangerous master, for
otherwise, as pointed out by Chandrachud, J., in State of Jammu &
Kashmir v. Triloki Nath Khosa (1974) 1 SCC 19 : AIR 1974 SC 1 :
1974 Lab IC 1) "the guarantee of equality will be sub-merged in class
legislation masquerading as laws meant to govern well-marked classes
characterised by different and distinct attainments." Overemphasis on
the doctrine of classification or an anxious and sustained attempt to
discover some basis for classification may gradually and
imperceptibly deprive the guarantee of equality of its spacious
content. That process would inevitably end in substituting the
doctrine of classification for the doctrine of equality : the fundamental
right to equality before the law and equal protection of the laws may
be replaced by the overworked methodology of classification. Our
approach to the equal protection clause must therefore, be guided by
the words of caution uttered by Krishna Iyer, J., in (1974) 1 SCC 19:
(AIR 1974 SC 1 : 1974 Lab IC 1).
"Mini-classifications based on micro-distinctions are false to
our egalitarian faith and only substantial and straightforward
classifications plainly promoting relevant goals can have
Constitutional validity. To overdo classification is to undo
equality." "
[Emphasis added]
26. In Roop Chand Adlakha and others v. Delhi Development Authority
and others, 1989 Supp (1) SCC 116, their Lordships have expressed thus:-
"18.....But the question that falls for consideration, in the context
such as the present one, is whether the differences have a reasonable
relation to the nature of the office to which the promotion is
contemplated. The idea of equality in the matter of promotion can be
predicated only when the candidates for promotion are drawn from the
same source. If the differences in the qualification has a reasonable
relation to the nature of duties and responsibilities, that go with and
are attendant upon the promotional post, the more advantageous
treatment of those who possess higher technical qualifications can be
legitimised on the doctrine of classification. There may, conceivably,
be cases where the differences in the educational qualifications may
not be sufficient to give any preferential treatment to one class of
W.P.(C) No.8663/2008 Page 15 of 22
candidates as against another. Whether the classification is reasonable
or not must, therefore, necessarily depend upon facts of each case and
the circumstances obtaining at the relevant time. When the state
makes a classification between two sources, unless the vice of the
classification is writ large on the face of it, the person assailing the
classification must show that it is unreasonable and violative of
Article 14. A wooden equality as between all classes of employees
irrespective of all distinctions or qualifications, or job requirements is
neither constitutionally compelled nor practically meaningful..."
[Emphasis added]
27. In D.S. Nakara and others v. Union of India, AIR 1983 SC 130, a
Constitution Bench, while dealing with the facet of Article 14, have
expressed thus:-
"11. The decisions clearly lay down that though Art. 14 forbids
class legislation, it does not forbid reasonable classification for the
purpose of legislation. In order, however, to pass the test of
permissible classification, two conditions must be fulfilled, viz., (i)
that the classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together from
those that are left out of the group; and (ii) that that differentia must
have a rational relation to the objects sought to be achieved by the
statute in question. (See Ram Krishna Dalmia v. S.R. Tendolkar,
1959 SCR 279 at p. 296 : (AIR 1958 SC 538 at p. 547) ). The
classification may be founded on differential basis according to
objects sought to be achieved but what is implicit in it is that there
ought to be nexus i.e. casual connection between the basis of
classification and object of the statute under consideration. It is
equally well settled by the decisions of this Court that Art. 14
condemns discrimination not only by a substantive law but also by a
law of procedure."
After so stating, their Lordships proceeded to state as follows:-
"13. The other facet of Article 14 which must be remembered is
that it eschews arbitrariness in any form. Article 14 has, therefore, not
to be held identical with the doctrine of classification. As was noticed
in Maneka Gandhi‟s case (AIR 1978 SC 597) in the earliest stages of
evolution of the Constitutional law, Art. 14 came to be identified with
the doctrine of classification because the view taken was that Article
14 forbids discrimination and there will be no discrimination where
the classification making the differentia fulfils the aforementioned two
conditions. However, in E.P. Royappa v. State of Tamil Nadu, (1974)
W.P.(C) No.8663/2008 Page 16 of 22
2 SCR 348 : (AIR 1974 SC 555) it was held that the basic principle
which informs both Articles 14 and 16 is equality and inhibition
against discrimination. This Court further observed as under:
"From a positivistic point of view, equality is antithetic
to arbitrariness. In fact, equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while the
other, to the whim and caprice of an absolute monarch. Where
an act is arbitrary it is implicit in it that it is unequal both
according to political logic and constitutional law and is,
therefore, violative of Art.14 and if it affects any matter relating
to public employment, it is also violative of Art.16. Articles 14
and 16 strike at arbitrariness in State action and ensure fairness
and equality of treatment"."
28. At this juncture, we may sit in a time machine and quote a passage
from Bidi Supply Co. v. Union of India, AIR 1956 SC 479 : -
"Article 14 sets out, to my mind, an attitude of mind, a way of life,
rather than a precise rule of law...... (I)n a given case that it falls this
side of the line or that, and because of that decisions on the same point
will vary as conditions vary, one conclusion in one part of the country
and another somewhere else; one decision today and another
tomorrow when the basis of society has altered and the structure of
current social thinking is different. It is not the law that alters but the
changing conditions of the times and Article 14 narrows down to a
question of fact which must be determined by the highest Judges in
the land as each case arises."
29. The present factual matrix is required to be tested on the touchstone of
the aforesaid enunciation of law. As is evident, Article 14 in its ambit and
sweep involves two facets, namely, it permits reasonable classification
which is founded on intelligible differentia and accommodates the practical
needs of the society and the differentia must have a rational relation to the
objects sought to be achieved and secondly, it does not allow any kind of
arbitrariness and ensures fairness and equality of treatment. It is the „fon
juris‟ of our Constitution, the fountainhead of justice. In the case at hand,
W.P.(C) No.8663/2008 Page 17 of 22
the notification has been brought in stipulating that a teacher in Sanskrit
would be eligible for the post of Post Graduate Teacher in Sanskrit. The
emphasis has been laid on teaching experience as the language employed in
Clause 2 of Column 12 which deals with promotion does clearly so reveal.
The words used are „teachers in Sanskrit‟. Teaching in the same subject has
its own signification. Not for nothing, it has been said, when you teach a
person you feed him for a lifetime. A true teacher has the potentiality to
influence the career and the character of a student and his influence
continues for long. Albert Einstein had said "it is the supreme art of the
teacher to awaken joy in creative expression and knowledge". It would not
be out of place to say that a teacher understands the difficulties a student
faces in a particular subject and he has the ability to impart proper training.
The imparting of training is also dependent upon the individual chemistry
and personal patience. The capacity of a teacher can gradually change a
student with slow osmosis. A teacher with experience has the requisite
knowledge, both theoretical and practical. One can have experience only
when he undergoes it. An experience is basically a harvest of knowledge
and hence, it has been said that „practice is the supreme teacher‟. In this
context, we may fully refer to the decision in Rajasthan Public Service
Commission vs. Kaila Kumar Paliwal & Anr., AIR 2007 SC 1746 wherein
it has been held as follows:
"The services of the teachers working in the schools in the State of
Rajasthan are governed by the Rajasthan Educational Service Rules,
1970 and Rajasthan Education (Subordinate Services) Rules, 1971.
Teacher Grade-III as also a Laboratory Assistant come within the
W.P.(C) No.8663/2008 Page 18 of 22
purview of the term „subordinate services‟. The minimum
qualification for holding the post of a Teacher Grade-III is
matriculation with certificate of training, whereas that of Laboratory
Assistant is Secondary with Science as an optional subject. 1970
Rules, on the other hand, deal with appointment inter alia of Head
Masters, Assistant Head Masters, Deputy Inspectors of Schools etc.;
the minimum qualifications wherefor are Bachelors‟ Degree and
Degree or Diploma in Education. Five years‟ teaching experience is
required for consideration for appointment to the post of Head Master
which in turn is referable to teaching in certain capacity on certain
categories of posts. The posts of Teacher Grade-III provides for a
promotional avenue to the posts of Teacher Grade-II which in turn
provides for promotion to the other grades of teacher. It is, thus
inconceivable that experience gained by a person holding the post of
Teacher Grade-III governed by the subordinate services rules would
be entitled to be considered for promotion to the post of Head Master
although experience of teaching in particular classes is relevant
therefor."
(quoted from placitum]
30. In V.B. Prasad vs. Manager, P.M.D.U.P. School & Ors., AIR 2007
SC 2053, while deal with the concept of teaching experience, their Lordships
held thus:
"10. ...Five years‟ teaching experience for appointment to the post
of Headmaster was a sine qua non. Such teaching experience was to
be „teaching experience‟ and not a deemed teaching experience."
31. We are conscious that the said decisions were rendered while
interpreting the provision and the challenge before us is with regard to the
validity of the provision; yet, we have referred to the same only to
understand the purport of experience in teaching as their Lordships have laid
emphasis on „actual teaching‟.
32. In our considered view, the classification made between the ten
graduate teachers and the ten graduate teachers who teach Sanskrit, on a
W.P.(C) No.8663/2008 Page 19 of 22
closer scrutiny, with stands the test of Article 14 of the Constitution and
does not invite its wrath, for there is a rationale behind it and the object is to
impart proper teaching in the subject in question. Thus, the submission of
the learned senior counsel for the petitioner in this regard pales into
insignificance.
33. In Mohd. Shujat Ali (supra), it has been held thus:-
"It is said on behalf of the respondents that as their chances of
promotion have been affected their conditions of service have been
changed to their disadvantage. We see no force in this argument
because chances of promotion are not conditions of service. Now
here in the present case, all that happened as a result of the application
of the Andhra Rules and the enactment of the Andhra Pradesh Rules
was that the number of posts of Assistant Engineers available to non-
graduate Supervisors from the erstwhile Hyderabad State for
promotion, was reduced : originally it was fifty per cent, then it
became thirtythree and one-third per cent, then one in eighteen and
ultimately one in twenty-four. The right to be considered for
promotion was not affected but the chances of promotion were
severely reduced. This did not constitute variation in the condition of
service applicable immediately prior to 1st November, 1956 and the
proviso to section 115, sub-section (7) was not attracted. This view is
completed supported by the decision of a Constitution Bench of this
Court in Ramchandra Shankar Deodhar v. State of Maharashtra (AIR
1974 SC 259)."
34. The said principle was reiterated in Bakshish Singh v. Union of India
and others, AIR 1985 SC 1272.
35. In S.B. Mathur and others v. Hon'ble the Chief Justice of Delhi
High Court and others, AIR 1988 SC 2073, their Lordships expressed
thus:-
"13..... Merely because the chances of promotion of some employees
are adversely affected by such grouping or regrouping, that does not
lead to a conclusion that it is against the law....."
W.P.(C) No.8663/2008 Page 20 of 22
36. In Orissa Judicial Services Association Cuttack and another v. State
of Orissa and others, 1992 Supp (1) SCC 187, a two Judge Bench of the
Apex Court in this context has opined thus:-
"3.... It is apparent that the Constitution as well as the statutory rules
framed under Article 309 provide for recruitment to the Senior Branch
of Service by direct recruitment from the members of the bar. The
constitutional mandate cannot be challenged merely because it may to
certain extent adversely affect the chances of promotion of the Junior
Branch of Judicial Service."
37. The last plank of submission of Mr. Gupta is that by virtue of the
amendment, the promotional prospect of the petitioner is affected. It is
urged by him relying on the decisions which we have referred to earlier
while narrating the averments in the writ petition that the factum of
promotion is to be considered on the base and backdrop of seniority and
suitability. It is urged by him that when the petitioner is totally kept out of
the zone of consideration, her chances are totally curtailed. In this regard,
we may refer to certain citations in the field.
38. In view of the aforesaid pronouncement of law, there can be no
shadow of doubt that curtailment of chances of promotion cannot be a
ground to assail the constitutional validity of the provision. That apart, the
petitioner can be considered for promotion in her own stream when the
occasion arises.
W.P.(C) No.8663/2008 Page 21 of 22
39. In view of our premised reasons, we perceive no merit in the writ
petition and accordingly, the same stands dismissed without any order as to
costs.
CHIEF JUSTICE
MANMOHAN, J.
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