Central Administrative Tribunal - Delhi
Sudha vs Delhi Subordinate Services Selection ... on 27 September, 2023
1
Item No. 53/C-4
OA 1529/2019
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 1529/2019
This the 27th day of September, 2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Sudha, W/o Sh. Har Virendra Kumar, Aged about 44 years,
R/o H.No. 1/4373, Ram Nagar Extn. Mandoli Road, Shahdara,
Delhi - 110032, Post : Special Educator (Primary) MCD
Post Code : 15/17, Group : B ...Applicant
(By Advocates : Mr. Anuj Aggarwal with Mr. Shakib Malik and
Ms. Shraddha Adhikari)
Versus
1. Delhi Subordinate Services Selection Board (DSSSB)
Through its Chairman, Govt. of NCT of Delhi
FC - 18, Institutional Area, Karkardooma, Delhi - 110092
2. North Delhi Municipal Corporation (NDMC),
Through its Commissioner (North),
Dr. S.P.M. Civic Centre,Minto Road, New Delhi - 110002
3. South Delhi Municipal Corporation (SDMC)
Through its Commissioner (South),
23rd floor, Civic Centre, Minto Road, New Delhi - 110002
4. East Delhi Municipal Corporation (EDMC),
Through its Commissioner (East),
Udhyog Sadan, Patparganj Industrial Area,Delhi - 110095
5. Rehabilitation Council of India
Through its Chairperson
B-22, Qutub Institutional Area, New Delhi - 110016
6. National Council for Teacher Education
Through its Chairperson
Wing - II, Hans Bhawan, 1, Bahadur Shah Zafar Marg,
New Delhi - 110002
...Respondents
(By Advocate: Ms. Anupama Bansal with Mr. Saurabh, Mr. J.P.
Nahar with Ms. Devyani Bhardwaj, Mr. Umesh Joshi, Mr. Ritank
Kumar with Mr. Rajneesh Kr. Sharma)
2
Item No. 53/C-4
OA 1529/2019
O R D E R (ORAL)
Hon'ble Mr. Manish Garg:
In the instant OA, the applicant seeks the following reliefs:-
"(i) Set aside the impugned Rejection Notice No. 352 dated 23.02.2019, issued by the Delhi Subordinate Services Selection Board (DSSSB whereby the candidature of the applicant for the post of Special Educator (Primary) MCD (Post Code 15/17) was rejected on the ground i.e., "B.Ed (Spl.) Education and no diploma in Special Education. CTET not qualified in Primary Stage."
(ii) direct the respondents to consider the candidature of the applicant for appointment on the post of Special Educator (Primary) MCD (Post Code 15/17) and, thereafter, grant him appointment on the said post with all consequential benefits.
(iii) direct the respondents to amend the recruitment rules for the post of Special Educator (Primary) MCD thereby declaring B.Ed. (Special Education) as valid qualification for the said post;
(iv) direct the respondents to consider, and grant, relaxation in the Central Teacher Eligibility Test (CTET) qualification for appointment on the post of Special Educator (Primary) MCD (Post Code 15/17) in case of the applicant;
(v) allow the present application with cost in favour of the applicant; and
(vi) pass any other order or direction as this Hon'ble Tribunal may deem fit and proper in the interest of justice and in the favour of the applicant."
2. Learned counsel for the applicant submits that rejection notice was issued only on two grounds - one is that Central Teacher Eligibility Test (CTET) has been made available on the cut off date and another ground is that as per the Recruitment Rules, essential condition is not Diploma in Special Education 3 Item No. 53/C-4 OA 1529/2019 whereas learned counsel for the applicant would contend that the applicant possessed the higher qualification, i.e., B.Ed in Special Education. Therefore, on the analogy that the applicant, being possessed a higher qualification, issuance of Rejection Notice is bad in law.
3. Learned counsel for the respondents vehemently opposing the grant of reliefs would rely upon the averments made the counter affidavit inter alia contending that the terms and conditions of the Recruitment Rules, which are essential in nature are sacrosanct and the parties are bound by that. He would rely upon the operative portion, which reads as under:-
"The applicant is trying to mislead the Hon'ble Tribunal by bringing out issues which are not relevant in her case in so far as that the rejection was mainly done on the ground that she did not possess the CTET qualification as required, as the same had been acquired by her much after the last date of being so. It is only an added disqualification that where only diploma was required as per R/Rs, she has uploaded degree and this is only an additional ground which was observed and indicated in the rejection notice. This rejection notice, therefore, explains that the Respondent Board had gradually gone through the documents submitted by the applicant before issuing the same. Thus, as the court case and other legal connotations being drawn by the applicant pertain to only in respect of her qualification of B.Ed. (Spl. Education). She is trying to mislead the Hon'ble High Court into believing her rejection was primarily because of this mere fact where as it was actually an additional disqualification mentioned and the main disqualification was her not having the CTET qualification for which she has not made any ground what-so-ever. As a matter of policy the Board has taken the stand of not allowing candidate who have qualified CTET after the last date of submission of application forms, as the same would against the principles of natural justice in so far as that candidates who had voluntarily not applied for the said post as they 4 Item No. 53/C-4 OA 1529/2019 lack the CTET qualification would be placed at a disadvantageous position vis-a-vis the applicant who was ab-initio not qualified for appearing for the said examination but suppressed the material fact and applied for the same. The applicant cannot now seek condonation or gain advantage of her own eligibility against other similarly placed candidates. Therefore, she has no grounds to agitate in the present matter and her case be dismissed with cause."
4. Learned counsel for the respondents further draws reference to the decision rendered in OA No. 3666/2018 in the matter Bharti Bhama & Ors. Vs. GNCTD & Ors. dated 13.04.2023, wherein the operative portion reads as under :-
"7. After hearing both the learned counsel, we find that the applicants do not fulfil the requisite eligibility criteria and hence, the OA itself lacks merit. Moreover, as the issue is no more res integra, in view of the judgment passed by the Hon'ble High Court of Delhi in Anuj Kumar and Ors.(supra). The operative portion of the said judgment reads as under:-
"13. Having heard the learned counsel for the parties, we are not inclined to interfere with the impugned order passed by the Tribunal.
14. To our minds, the contention advanced by Ms. Mukherjee, on behalf of the petitioners, cannot be accepted. An essential qualification, qua appointment to a post, cannot be relaxed.
15. The CTET Exam, 2021 may have been postponed due myriad reasons, however, that by itself, cannot be the basis for giving a leg-up to the petitioners.
16. Any which ways, the contention of the petitioners, in our view, is untenable, as clearing CTET is an essential qualification, for sitting for the exam and being considered for appointment to the post of TGT.
17. Accordingly, the writ petition is dismissed. Pending application shall stand closed."
In view of above, the OA is dismissed."
5Item No. 53/C-4 OA 1529/2019
5. Countering the argument in rejoinder, learned counsel for the applicant would state in so far as the issue of CTET is concerned, the Hon'ble Lt. Governor has already laid the contention as per the order dated 13.03.2020, which is reproduced as under :-
"In exercise of power to Relax under Clause 5 of Recruitment Regulations for the post of Special Educator (Primary), Municipal Corporation of Delhi (2012) (South, East and North Delhi Municipal Corporation), the Hon'ble Lt. Governor is pleased to give one time relaxation of age and CTET qualification to the otherwise qualified candidates who have obtained the CTET qualification after the cut - off date, but before their appointment and age relaxation even if they may have become overage for the post of Special Educator (Primary) as advertised vide Post Code No. 15/17.
Further, grant of age relaxation to the candidates, otherwise eligible, has been considered on the same lines as done by Education Department, GNCTD recently for Special Education Teachers vide order No. F.209/DDE(IEDSS)/COURT FILE/2016-17/CD No. 043457883/9831-37 dated 06.12.2019 (copy enclosed).
This shall not be treated as a precedent for any future recruitment for the post or any other posts."
6. Having considered the rival submissions of the respective parties, we are of the view that so far as the issue of CTET is concerned in the present matrix of the case and keeping in view the law laid down by the Hon'ble Apex Court in Devesh Sharma vs. Union of India (UOI) and Ors., regarding several contentions whether B.Ed. degree can be regarded as a higher degree or not, the issue is no longer is res integra in Devesh Sharma (supra). The operative portion of the judgment of the Hon'ble Apex Court reads as under :-
6Item No. 53/C-4 OA 1529/2019 "33. Under these circumstances, we are unable to comprehend as to what was the pressing need to include B.Ed. candidates, who are admittedly not fully trained to take up Primary Classes! Consequently, the decision of the NCTE to include B.Ed. as a qualification for teachers in a primary school seems arbitrary, unreasonable and in fact has no nexus with the object sought to be achieved by the Act i.e. Right to Education Act, which is to give to children not only free and compulsory but also 'quality' education.
34. In our considered opinion therefore NCTE was not justified in including B.Ed. as a qualification for appointment to the post of primary school teacher (Level-
1), a qualification it had so far consciously kept out of the eligibility requirement. The Rajasthan High Court by way of the Impugned Judgement had rightly struck down the notification dated 28.06.2018, on the following grounds:-
"(i) The impugned notification dated 28.06.2018 is unlawful because: -
(a) it is under the direction of the Central Government, which power the Central Government under Subsection (1) of Section 23 of the RTE Act did not have; and
(b) it is not in exercise of power of the Central Government under Sub-section (2) of Section 23 of RTE Act relaxing the eligibility criteria prescribed by the NCTE, nor there has been any exercise for ascertaining existence of the conditions precedent for exercising such power.
(ii) The petitioners have locus standi to challenge the notification dated 28.06.2018. Merely because an additional qualification is recognized as one of the eligibility criteria, the petitioners cannot be prevented from challenging it.
(iii) Accepting a candidate with B.Ed. degree as eligible for appointment and thereafter subjecting him to complete the bridge course within two years of appointment is in the nature of relaxing the existing eligibility criteria, which the Central Government could have done only within Sub-
section (2) of Section 23 and subject to existence of circumstances necessary for exercise of such power.
(iv) The State Government could not have ignored the notification of NCTE dated 28.06.2018 while issuing advertisement for REET. However, when we have declared that this notification is illegal and are 7 Item No. 53/C-4 OA 1529/2019 in the process of setting aside, the issue becomes one of academic value.
35. One important aspect of the present case must now be dealt with, on which much emphasis was laid by the counsel for the appellant. The submission is that the Central Government in any case is the final authority in deciding as to what qualification has to be there for teachers and the NCTE is bound to follow the directions of the Central Government in this regard. Reliance was placed on two provisions of National Council for Teacher Education Act, (NCTE Act), Section 12A and Section 29. We must examine these provisions in the light of the submissions made before us.
Section 12A of the Act, reads as under:
"12A. Power of Council to determine minimum standards of education of school teachers. -- For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or a State Government or a local or other authority:
Provided that nothing in this section shall adversely affect the continuance of any person recruited in any preprimary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges, under any rule, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the commencement of the National Council for Teacher Education (Amendment) Act, 2011 (18 of 2011) solely on the ground of non-fulfilment of such qualifications as may be specified by the Council:
Provided further that the minimum qualifications of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009).]"
Section 12A was inserted in the NCTE Act that is after the enactment of Right to Education Act, 2009. Section 12A only compliments Section 23 of the Right to Education Act, which we have already discussed in the preceding paragraphs.
8Item No. 53/C-4 OA 1529/2019 Next, we come to the Section 29 of the NCTE Act which is as under:
"29. Directions by the Central Government : (1) The Council shall, in the discharge of its functions and duties under this Act be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time.
(2) The decision of the Central Government as to whether a question is one of policy or not shall be final.
It was submitted that by a notification dated 28.06.2018, NCTE has only followed the directions of the Central Government which are in the nature of a policy. Further it is also evident from the minutes of the meeting dated 28.05.2018 where it was clarified that the direction of the Central Government to include B.Ed. as a qualification is a direction under Section 29 of the Act.
The NCTE is bound to follow the directions of the Central Government in this regard and the direction in the present case was to include B.Ed. as a qualification for teachers in primary school, which has been done by NCTE through notification dated 28.06.2018, are the submission of the learned counsel for the appellants as well as that of the learned ASG Ms. Aishwarya Bhati on behalf of the Union of India. Moreover, as per subSection (2) of Section 29, the decision of the Central Government as to what constitutes a policy decision will ultimately matter, is also the argument.
36. The introduction of B.Ed. as a qualification by NCTE on the directions of the Central Government is a policy decision of the Government, as has been submitted before this Court, and is also evident from the sequence of events, the minutes of the various meeting and the order passed in this regard. Section 29 of NCTE Act which mandates that NCTE must follow the directions of the Central Government in discharging of its functions. It is a policy decision which binds NCTE.
We have absolutely no doubt in our mind that policy decisions of the Government should normally not be interfered with, by a constitutional Court in exercise of its powers of judicial review. At the same time if the policy decision itself is contrary to the law and is arbitrary and irrational, powers of judicial review must be exercised.
A policy decision which is totally arbitrary; contrary to the law, or a decision which has been taken without proper application of mind, or in total disregard of relevant factors 9 Item No. 53/C-4 OA 1529/2019 is liable to be interfered with, as that also is the mandate of law and the Constitution. This aspect has been reiterated by this Court time and again.
Judicial review becomes necessary where there is an illegality, irrationality or procedural impropriety. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (commonly known as CCSU case). The above decision has been referred by this Court in State of NCT of Delhi v. Sanjeev. This view was reiterated again by this Court in State of M.P. & Ors. v. Mala Banerjee:
"6. We also find ourselves unable to agree with the appellants' submission that this is a policy matter and, therefore, should not be interfered with by the courts. In Federation of Railway Officers Assn. v. Union of India [(2003) 4 SCC 289] , this Court has already considered the scope of judicial review and has enumerated that where a policy is contrary to law or is in violation of the provisions of the Constitution or is arbitrary or irrational, the courts must perform their constitutional duties by striking it down..."
In Brij Mohan Lal v. Union of India20 this Court reiterated on this aspect and made out a distinction as to where an interference to a decision is required, and whereas it is not:-
"100. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:
(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.
(II) The change in policy must be made fairly and should not give the impression that it was so done arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds of mala fides, unreasonableness, arbitrariness or unfairness, etc. (IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.
(V) It is dehors the provisions of the Act or legislations.
(VI) If the delegate has acted beyond its power of delegation.10
Item No. 53/C-4 OA 1529/2019
101. Cases of this nature can be classified into two main classes: one class being the matters relating to general policy decisions of the State and the second relating to fiscal policies of the State. In the former class of cases, the courts have expanded the scope of judicial review when the actions are arbitrary, mala fide or contrary to the law of the land; while in the latter class of cases, the scope of such judicial review is far narrower. Nevertheless, unreasonableness, arbitrariness, unfair actions or policies contrary to the letter, intent and philosophy of law and policies expanding beyond the permissible limits of delegated power will be instances where the courts will step in to interfere with government policy.
The decision whether to include or exclude B.Ed. as a qualification for teachers in primary school is an academic decision, which has to be taken after proper study by the academic body i.e. NCTE and should be better left to this expert body.
But as we have seen the decision to include B.Ed. as a qualification is not an independent decision of NCTE, but it was the decision of the Central Government and NCTE was simply directed to carry it out for that being a direction under Section 29 of NCTE Act, a direction NCTE followed.
In the present case and in the larger context of the matter, we cannot even see this as a policy decision. But without getting into this argument, even presuming for the sake of argument that the decision taken at the Government level to include B.Ed. as a qualification for teachers at primary level is a policy decision, we must say that this decision is not correct as it is contrary to the purpose of the Act. In fact, it goes against the letter and spirit of the Fundamental Right enshrined in the Constitution under Article 21A. It is against the specific mandate of the Act, which calls for a free, compulsory and meaningful primary education to children. By including B.Ed. as a qualification for teachers for primary school, the Central Government has acted against the provisions of the Constitution and the laws. The only logic given by the Central Government to include B.Ed. as a qualification is that it is a 'higher qualification'. This we have already seen is not correct. Under these circumstances, we have no hesitation to say that the notification has rightly been quashed and the decision of the Division Bench of the Rajasthan High Court has to be upheld.
11Item No. 53/C-4 OA 1529/2019 In our considered opinion therefore the direction of the Central Government dated 30.05.2018 culminating in the notification dated 28.06.2018 of NCTE are violative of the principles as laid down in RTE Act. Not only this, the notification goes against the purpose and the mandate of law, which is to provide a meaningful and 'quality' primary education to children.
The entire exercise is also procedurally flawed. The notification dated 28.06.2018 is not an independent decision of NCTE taken after due deliberation, but it simply follows the direction of the Central Government, a direction which fails to take into consideration the objective realities of the day.
Having made the above determination we, all the same, are also of the considered opinion that the State of Rajasthan was clearly in error in not calling for applications from B.Ed. qualified candidates, for the reasons that till that time when such an advertisement was issued by the Rajasthan Government, B.Ed. candidates were included as eligible candidates as per the statutory notification of NCTE, which was binding on the Rajasthan Government, till it was declared illegal or unconstitutional by the Court. The Rajasthan High Court had rightly observed as under :-
"..we are of the opinion that the State Government could not have ignored the notification while inviting applications for REET. Even if the State Government was of the opinion that such notification was unconstitutional or for any reason illegal, the same had to be stayed or set aside by a competent court before it could be ignored."
[Para 45 of the Impugned Judgement] What the Rajasthan High Court had stated above is the settled legal position. In a recent three Judge judgment of this Court in State of Manipur & Ors. v. Surjakumar Okram & Ors. 21 this position that a statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law; has been reiterated.
37. Consequently, the Appeals are dismissed and the judgement dated 25.11.2021 of the Rajasthan High Court is upheld. The notification dated 28.06.2018 is hereby quashed and set aside. The Writ Petitions and all pending applications stand disposed of in light of the above order."
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7. In view of the aforesaid, the present OA lacks merit and is accordingly dismissed. There shall be no order as to costs.
(Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/akshaya/