Central Administrative Tribunal - Delhi
Sandeep Chikkara vs The Chairman on 11 March, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1309/2009 And O.A.No.1310/2009 This the 11th day of March 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) OA 1309/2009 Sandeep Chikkara s/o Jagbir Singh House No.31 Vill & PO Jounti Delhi-81 ..Applicant (By Advocates: Shri B S Mainee and Shri Meenesh Dubey) Versus 1. The Chairman Delhi Subordinate Services Selection Board Govt. of National Capital Territory of Delhi FC-18, Institutional Area, Karkardooma Delhi-92 2. Principal Secretary Department of Training and Technical Education Muni Maya Ram Marg Near T V Tower, Pitampura Delhi-88 3. The Chief Secretary Govt. of NCT of Delhi 4. The Secretary Department of Health & Family Welfare Govt. of NCT of Delhi ..Respondents (By Advocate: Shri Vijay Pandita for respondents 1, 2 & 5 None for other respondents) OA 1310/2009 Naresh Kumar s/o late Shri Ram Diya r/o House No.D-8, Telegraph Place Gole Market, New Delhi ..Applicant (By Advocates: Shri VSR Krishna, Shri Meenesh Dubey and Shri Anurag Dubey) Versus 1. Government of NCT of Delhi Through its Chief Secretary 2. The Chairman Delhi Subordinate Services Selection Board Govt. of National Capital Territory of Delhi FC-18, Institutional Area, Karkardooma Delhi-92 3. Principal Secretary Department of Training and Technical Education Muni Maya Ram Marg Near T V Tower, Pitampura Delhi-88 4. The Secretary Department of Health & Family Welfare Govt. of NCT of Delhi ..Respondents (By Advocate: Shri Vijay Pandita for respondents 1, 2 and 5 None for other respondents) O R D E R
Shri Shanker Raju:
Though right to employment is yet to be recognized in law as a fundamental right, yet appointment to a post cannot be denied arbitrarily or in violation of the Articles 14 and 16 of the Constitution of India. Public employment is a facet of right to equality enshrined under Article 16 of the Constitution of India. The State although is a model employer, its right to create posts and recruit people therefor emanates from the statutes or statutory rules and/or rules framed under the proviso appended to Article 309 of the of the Constitution of India. The recruitment rules are framed with a view to give equal opportunity to all the citizens of India. The aforesaid quote is from the decision of the Apex Court in Principal Mehar Chand Polytechnic and another v. Anu Lamba and others, (2006) 7 SCC 161, which is further reiterated by the Constitution Bench of Apex Court in Secretary, State of Karnataka & others v. Umadevi & others, (2006 (4) SCC 1.
2. No doubt in the matter of appointment laying down and prescribing through rules qualification is the prerogative of the administrative authorities and cannot be impeached on the ground that it has to be tailor-made to suit certain individuals, as ruled by the Apex Court in V.K. Sood v. Secretary, Civil Aviation and others, 1993 SCC (L&S) 907.
3. In the matter of laying down recruitment qualifications and prescription thereof on an expert opinion, judicial review of the Court is to interpret the rule but not supplant as ruled by the Apex Court in Sanjay Kumar Manjul v. Chairman, UPSC and others, (2006) 8 SCC 42.
4. In the light of the law laid down by the Apex Court, which is a binding precedent under Article 141 of the Constitution, these OAs, being grounded on common facts with an identical question of law, are being disposed of by this common order.
5. Applicants, who have applied for the post of Pharmacist under Delhi Administration, are assailing the vires of Column No.7 of the Rules regarding the method of recruitment and educational qualifications for the post of Pharmacist, insofar as it prescribes that an approved diploma holder in pharmacy would be eligible for the post of Pharmacist until one had completed 10+2 with Physics, Chemistry and Biology and thus disqualifies those diploma holders, who have passed their 10+2 opting Physics, Chemistry and Mathematics. Quashing of the result of selection and consideration of the applicant are the reliefs forwarded before us through these OAs.
6. Before we go into the legal aspect of the matter, a brief background as to the erstwhile qualification for the post of Pharmacist under Delhi Government is to be seen. Earlier the statutory rules framed under the proviso of Article 309 of the Constitution for the post of Pharmacy and their recruitment, etc. were promulgated in 1961 allowed the candidature of a candidate with eligibility criteria of diploma in pharmacy with a background of 10+2 with Physics, Chemistry and Mathematics. The aforesaid basically is on the surmise that elsewhere, including Delhi Administration prior to 2007 for getting admission in diploma in pharmacy as per teaching programme of training and technical education for a common entrance test (CET), pre-qualification of eligibility for the diploma of two years in pharmacy, a candidate should have passed 10+2 with Physics, Chemistry and Mathematics, as certified by Education Regulations of the Pharmacy Council of India where 10+2 with Science was the pre-qualification of eligibility for getting admission in diploma in pharmacy. However, an amendment was carried out by the respondents in the recruitment rules on 18.10.2004 under proviso to Article 309 of the Constitution where for the post of Pharmacist, B-Pharmacy from a recognized institute was one of the criteria of eligibility and in the alternative, the candidate with approved diploma in pharmacy with 10+2 with Science stream. It has been certified that the same should be with the subjects in Physics, Chemistry and Biology. As a result thereof, Delhi Subordinate Services Selection Board (DSSSB) published an advertisement in December 2007 calling for the post of Pharmacist (Allopathy). Writ Petition No.723/2008 challenging the eligibility criteria and non-provision of reservation for handicapped persons came to be disposed of on 28.4.2008 whereby admission card was issued to the applicants, who were provisionally allowed for selection. However, another CWP-6451/2008 was disposed of on 11.9.2008 keeping one post of Pharmacist reserved for the applicant therein. High Court of Delhi on 18.4.2009 finding the issue as service matter accorded liberty to the applicant to approach the Tribunal and interim order was extended for a period of one month. As a result, the same was also continued before the Tribunal as well.
7. It is also pertinent to note that elsewhere in India, a uniform methodology has been adopted by the polytechnics awarding diploma in pharmacy and more particularly in Delhi. As per CET 2004, the eligibility criteria for admission was 10+2 with Physics, Chemistry and Mathematics. As such, the applicants have been, though eligible to get their diploma but as a pre-qualification on academic side, rendered ineligible on account of not having studied Biology in 10+2. It is also pertinent to note that for degree as well as diploma in pharmacy, Biology subject is taught in both. As such, making distinction on account of an additional subject of Biology, which the applicants had not studied in 10+2 and is an educational qualification not the technical one where these concerned subjects have been taught in diploma as well, as per the syllabus of Education Regulations of the Pharmacy Council of India.
8. Learned counsel for applicants states that the applicants, who have been considered eligible by the Govt. of NCT to pursue a diploma in pharmacy and now after completion of this, have been rendered ineligible by amendment of the rules and clause 7 whereby arbitrarily a condition of 10+2 with Biology as rendered not only the erstwhile educational qualification of 10+2 of applicants but also the subsequent qualification of Physics as otiose. It is stated that the legitimate expectation of applicants on passing the diploma is to be eligible for the post of Pharmacist and as the qualification of 10+2 with Biology has been introduced at the stage of admission into the diploma course, the technical qualification not being disturbed, respondents have rendered the candidates, who have obtained diploma from all over the country, except Delhi, to be ineligible for appointment by creating a class within the class without any intelligible differentia having nexus with the object sought to be achieved, offends principles of equality enshrined under Article 14 of the Constitution as well as is unreasonable classification rendering the rules framed under proviso to Article 309 of the Constitution.
9. It is stated that as per the recruitment rules, diploma holders with 10+2 in Mathematics stream have been rendered ineligible whereas their counterparts with Biology stream in 10+2 are eligible, thus, creating a class within the class.
10. Learned counsel states that even if from a state polytechnic diplomas have been obtained by the applicants, it is not legally open for the Govt. of NCT of Delhi to prescribe an educational qualification, which is otherwise the eligibility qualification for diploma to deny employment to the applicants.
11. Learned counsel further states that there is no rationale as to the knowledge of Biology, as the same being a subject both in diploma as well as in degree. The candidates even with 10+2 with Mathematics gets sufficient knowledge of Biology and this will not prevent from discharging duties effectively as a Pharmacist.
12. Learned counsel stated that even if 10+2 with Mathematics is an eligibility criteria for getting an admission in diploma in pharmacy, then by introducing the qualification as 10+2 with Biology in the recruitment rules, these vocational courses have been rendered ineffective and useless whereas the National Council of Pharmacy recognizes this qualification on whatsoever eligibility prior to it as an apt for getting employment in Centre as well as States.
13. On the other hand, Shri Vijay Pandita, learned counsel for DSSSB by relying upon the decisions in V.K. Soods case (supra), Mallik Vajana Rao v. State of A.P., (1990) 2 SCC 707 as well as in Captain B.D. Gupta v. State of U.P. and another, JT 1990 (3) SC 712 states that qualifications are the prerogative of the administration and challenge on the ground of malafides to the rules framed under proviso to Article 309 of the Constitution is not amenable in judicial review.
14. It is stated that provisions of the notified recruitment rules are promulgated by the user department with requisition. It is also stated that keeping in view large number of applications, the applicants, who otherwise do not possess the requisite qualification, having participated in the recruitment process cannot challenge it subsequently.
15. In reply filed on behalf of Department of Training and Technical Education. Govt. of NCT of Delhi (respondent No.2), it is stated that the minimum qualification for getting admission is Pass in any of the examination with Physics, Chemistry and Biology or Mathematics and pharmacy diplomats of the Board of Technical Education, trained as per the norms of the Pharmacy Council of India, can work as Pharmacists anywhere in India, both in public as well as in private sectors. Education Regulations of 1991 have been placed reliance on.
16. Respondent No.5 Department of Health & Family Welfare has also filed reply reiterating the replies filed by other respondents. It is stated that the recruitment rules have been changed by the Department on the pattern of recruitment rules of Ministry of Health & Family Welfare for Pharmacist in Central Government Health Scheme (CGHS) and the candidates from Mathematics stream are eligible to apply for diploma all over India against those posts where the recruitment rules permit the candidates from Mathematics stream for the post of Pharmacist. It is also stated that the Biology subject has been laid down in the recruitment rules in view of the nature of duties of the Pharmacist.
17. For reservation of physically handicapped persons, it is stated that the post of Pharmacist was identified as suitable for physical handicap reservation on 15.1.2007 but the said notification was not received till the requisition was sent to DSSSB on 31.7.2007 for 115 posts. However, the Department has approached the DSSSB for the possibility of inclusion of a physical handicap reservation but the DSSSB was of the view that as the process of recruitment had already been initiated and the reservation for physically handicapped persons having not been notified in the advertisement published for these vacancies, it was not possible to incorporate any reservation at this stage.
18. Rejoinder(s) filed by the applicants reiterates the contentions raised in the OAs.
19. We have carefully considered the rival contentions of the parties and perused the material placed on record.
20. At the outset, we are not constrained in judicial review to interfere with a legislation as ruled in Divisional Manager, Aravali Golf Club and another v. Chander Hass and another, (2008) 1 SCC 683. In the wake of separation of powers, the powers of judiciary are limited and must never be abused or misused but should be exercised by the judiciary with the utmost humility and self-restraint. The judicial activism has to be resorted to only in exceptional circumstances with inbuilt limitation.
21. In Som Lal v. Vijay Laxmi and others, (2008) 11 SCC 413, the Apex Court ruled that Court should be slow to interfere with the mandate of legislator, except with compelling reasons.
22. In the matter of laying down educational qualification when statutory rules framed under proviso to Article 309 of the Constitution of India is in issue where service conditions have been laid down, the Apex Court in Reserve Bank of India and others v. C.N. Sahasranaman and others, 1986 (Supp.) SCC 143 has observed as under:-
58. Whether there has been denial of equality of the view of promotion or any constitutional right infringed or not cannot be judged, where interest of large number of people are concerned, in the abstract. Vast majority, indeed the overwhelming majority of the workmen are in favour of the scheme as evolved by the Bank as modified as it would be apparent from the submission urged on behalf of All-India Reserve Bank Employees' Association impleaded as party-respondent in this appeal as well as All India Reserve Bank Employees' Federation, Hyderabad. It has to be borne in mind that in service jurisprudence there cannot be any service rule which would satisfy each and every employee and its constitutionality has to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees and fortunes of some individuals is not the touch-stone. See in this connection the observations of this Court in Kamal Kanti Dutt & Ors. v. Union of India and Ors., (supra).
59. Furthermore it appears to us that Circular No.9 is a counterpart of Circular No.8. Circular No. 8 having been held valid, Circular No. 9 must also follow to be good. Circular No. 8 cannot stand in vacuum and in isolation. It is a step to the fulfilment of the object to be achieved by Circular No. 9. Viewed in that point of view and as a feasibility and having regard to the factors and in regard to the history of Reserve Bank employees, we are of the opinion that the scheme as modified by the Bank and as accepted by vast majority of their employees is a proper and just scheme and does not suffer from the vice of article 14 or article 16 or any other constitutional guarantees.
60. It is well to bear in mind the fact that settlement of disputes by direct negotiations or settlement through collective bargaining is always to be preferred for it is best suited for industrial peace which the aim of legislation for settlement of labour disputes. See the observations in New Standard Engineering Co. Ltd. v. N.L. Abhyankar and Ors., A.I.R. 1978 S.C. 982 at 984 = [1978] 2 S.C.R. 798. This view has again been reiterated by this Court in Tata Engineering & Locomotive v. Their Workmen, A.I.R. 1981 S.C. 216 = [1982] 1 S.C.R. 929. The order of this Court dated 2nd May, 1984 and the referendum and the result thereof have been set out hereinbefore.
61. We may, however, note that about the proper manner of holding this referendum, certain doubts were expressed at the time of hearing of this appeal. The Referendum undoubtedly indicates that majority of the employees are in favour of acceptance of the modified settlement. In matters of service conditions, it is difficult to evolve as ideal set of norms governing various conditions of services and in grey area where service rules operated, if more than one view is possible without sacrificing either reasons or common-sense, the ultimate choice has necessarily to be conditioned by several considerations ensuring justice to as many as possible and injustice to as few. See in this connection the observations in K.K. Dutta v. Union of India (supra) at page 841. These principles, however significant, do not authorise the majority of the employees to trample upon the constitutional guarantees or rights of the individual or minority employees. Majority cannot thwart or barter away the constitutional rights of the minorities. The constitutional guarantees are to protect this very danger. But in judging the content of the constitutional rights, the entire perspective of the equality of opportunity here and denial of equal right in public employment have to be viewed in a fair, reasonable and just perspective. Viewed in that light, it is true, there may be individual instances exemplifying injustice by postponing or delaying the chances of promotions of the contesting respondents yet that does not deny them their constitutional right in its proper measure, and the considerations that have weighed with the making of the modified scheme and in the light of the other considerations mentioned hereinbefore, we must observe that with whatever care and objectivity or foresight any rule is framed, some hardship, inconvenience or injustice might to result but the paramount consideration is the reconciliation of the conflicting claims of two important constituents of service one which brings fresh clerical employees and the other mature experience. There has been a happy merger of these two considerations in the scheme proposed and in that merger, no violation of the guaranteed rights of the opposing respondents have occurred.
23. If one has regard to the above, the ratio decidendi, insofar as the service conditions are concerned, clearly rules that there cannot be any service, which would satisfy each and every employee. However, the objective assessment as to the fairness in legislation and its reasonableness, which permits justice to the majority of the employees, is the touchstone. Articles 14 of the Constitution lays down the principles of equality and forbids discrimination as well as classification by laying down twin test, which was the subject matter of the Apex Court in Constitution Bench in Maneka Gandhi v. Union of India and another, (1978) 1 SCC 248 where following test has been laid down:-
13. Now, here, the power conferred on the Passport Authority is to impound a passport and the consequence of impounding a passport would be to impair the constitutional right of the holder of the passport to go abroad during the time that the passport is impounded. Moreover, a passport can be impounded by the Passport Authority only on certain specified grounds set out in sub-sec. (3) of S. 10 and the Passport Authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. The Passport Authority is also required by sub-sec. (5) of S. 10 to record in writing a brief statement of the reasons for making an order impounding a passport and, save in certain exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of reasons to the holder of the passport. Where the Passport Authority which has impounded a passport is other than the Central Government, a right of appeal against the order impounding the passport is given by S. 11 and in the appeal, the validity of the reasons given by the Passport Authority for impounding the passport can be canvassed before the Appellate Authority for impounding the passport can be canvassed before the Appellate Authority. It is clear on a consideration of these circumstances that the test laid down in the decisions of this Court for distinguishing between a quasi-judicial power and an administrative power is satisfied and the power conferred on the Passport Authority to impound a passport is quasi-judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport even on the orthodox view which prevailed prior to A. K. Kraipak's case (AIR 1970 SC 150). The same result must follow in view of the decision in A. K. Kraipak's case, even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the constitutional right of the holder of the passport to go abroad and entails adverse civil consequences.
14. Now, as already pointed out the doctrine of natural justice consists principally of two rules, namely, nemo debet esse judex in propria causa no one shall be a judge in his own cause, and audi alteram partem: no decision shall be given against a party without affording him a reasonable hearing. We are concerned here with the second rule and hence we shall confine ourselves only to a discussion of that rule. The learned Attorney General, appearing on behalf of the Union of India, fairly conceded that the audi alteram partem rule is a highly effective tool devised by the courts to enable a statutory authority to arrive at a just decision and it is calculated to act as a healthy check on abuse or misuse of power and hence its reach should not be narrowed and its applicability circumscribed. He rightly did not plead for reconsideration of the historic advances made in the law as a result of the decisions of this Court and did not suggest that the Court should retrace its steps. That would indeed have been a most startling argument coming from the Government of India and for the Court to accede to such an argument would have been an act of utter retrogression. But fortunately no such argument was advanced by the learned Attorney General. What he urged was a very limited contention, namely, that having regard to the nature of the action involved in the impounding of a passport, the audi alteram partem rule must be held to be excluded, because if notice were to be given to the holder of the passport and reasonable opportunity afforded to him to show cause why his passport should not be impounded, he might immediately, on the strength of the passport, make good his exit from the country and the object of impounding the passport would be frustrated. The argument was that if the audi alteram partem rule were applied, its effect would be to stultify the power of impounding the passport and it would defeat and paralyse the administration of the law and hence the audi alteram partem rule cannot in fairness be applied while exercising the power to impound a passport. This argument was sought to be supported by reference to the statement of the law in A. S. de Smith, Judicial Review of Administrative Action, 2nd Edn., where the learned author says at page 174 that "In administrative law a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preventive or remedial nature". Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from 'fair play in action', it may equally be excluded where, having regarded to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion. There are certain well-recognised exceptions to the audi alteram partem rule established by judicial decisions and they are summarised by S. A. de Smith in Judicial Review of Administrative Action 2nd Edn. at pages 168 to 179. If we analyse these exceptions a little closely, it will be apparent that they do not in any way militate against the principle, which requires fair play in administrative action. The word 'exception' is really a misnomer because in these exclusionary cases, the audi alteram partem rule is held inapplicable not by way of an exception to 'fair play in action', but because nothing unfair can be inferred by not affording an opportunity to present or meet a case. The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation'. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experimental test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that 'natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances'. The audi alteram partem rule is not case in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. That is why Tucker, L.J., emphasised in Russel v. Duke of Norfolk, (1949) 1 All ER 109 that "whatever standard of natural justice is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case". What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a hearing, which is very brief and minimal: it may be a hearing prior to the decision or it may even be post-decisional remedial hearing. The audi alteram pattern rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations, which may arise. This circumstantial flexibility of the audi alteram partem rule was emphasised by Lord Reid in Wiseman v. Sorneman (1971 AC 297) (supra) when he said that he would be "sorry to see this fundamental general principle degenerate into a series of hard and fast rules" and Lord Hailsham, L. C., also observed in PearlBerg v. Varty, (1971) 1 WLR 728 that the courts "have taken an increasingly sophisticated view of what is required in individual cases". It would not, therefore, be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport. The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, an opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness of unreasonableness. We must, therefore, hold that the procedure 'established' by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Art. 21 and does not fall foul of that article.
15. But the question then immediately arises whether the Central Government has complied with this procedure in impounding the passport of the petitioner. Now, it is obvious and indeed this could not be controverted, that the Central Government not only did not give an opportunity of hearing to the petitioner after making the impugned order impounding her passport but even declined to furnish to the petitioner the reasons for impounding her passport despite request made by her. We have already pointed out that the Central Government was wholly unjustified in withholding the reasons for impounding the passport from the petitioner and this was not only in breach of the statutory provision, but it also amounted to denial of opportunity of hearing to the petitioner. The order impounding the passport of the petitioner was, therefore, clearly in violation of the rule of natural justice embodied in the maxim audi alteram partem and it was not in conformity with the procedure prescribed by the Passports Act, 1967. Realising that this was a fatal defect, which would void the order impounding the passport, the learned Attorney General made a statement on behalf of the Government of India to the following effect:
"1. The Government is agreeable to considering any representation that may be made by the petitioner in respect of the impounding of her passport and giving her an opportunity in the matter. The opportunity will be given within two weeks of the receipt of the representation. It is clarified that in the present case the grounds for impounding the passport are those mentioned in the affidavit in reply dated 18th August, 1977 of Shri Ghosh except those mentioned in para 2 (xi).
2. The representation of the petitioner will be dealt with expeditiously in accordance with law."
This statement removes the vice from the order impounding the passport and it can no longer be assailed on the ground that it does not comply with the audi alteram partem rule or is not in accord with the procedure prescribed by the Passports Act. 1967.
Is Section 10 (3) (c) violative of Art. 14?
16. That takes us to the next question whether S. 10 (3) (c) is violative of any of the fundamental rights guaranteed under Part III of the Constitution. Only two articles of the Constitution are relied upon of this purpose and they are Articles 14 and 19(1)(a) and (g). We will first dispose of the challenge based on Art. 14 as it lies in a very narrow compass. The argument under this head of challenge was that S. 10 (3) (c) confers unguided and unfettered power on the Passport Authority to impound a passport and hence it is violative of the equality clause contained in Art. 14. It was conceded that under S. 10 (3) (c) the power to impound a passport can be exercised only upon one or more of the stated grounds, but the complaint was that the ground of "interests of the general public" was too vague and indefinite to afford any real guidance to the Passport Authority and the Passport Authority could, without in any way violating the terms of the section impound the passport of one and not of another, at its discretion. Moreover, it was said that when the order impounding a passport is made by the Central Government, there is no appeal or revision provided by the Statute and the decision of the Central Government that it is in public interest to impound a passport is final and conclusive. The discretion vested in the Passport Authority, and particularly in the Central Government, is thus unfetted and unrestricted and this is plainly in violation of Art. 14. Now, the law is well settled that when a statute vests unguided and unrestricted power in an authority to affect the rights of a person without laying down any policy or principle which is to guide the authority in exercise of this power, it would be affected by the vice of discrimination since it would leave it open to the Authority to discriminate between persons and things similarly situated. But here it is difficult to say that the discretion conferred on the Passport Authority is arbitrary or unfettered. There are four grounds set out in S. 10 (3) (c), which would justify the making of an order impounding a passport. We are concerned only with the last ground denoted by the words "in the interests of the general public", for that is the ground which is attacked as vague and indefinite. We fail to see how this ground can, by any stretch of argument, be characterised as vague or undefined. The words "in the interests of the general public" have a clearly well defined meaning and the courts have often been called upon to decide whether a particular action is "in the interests of the general public" or in 'public interest' and no difficulty has been experienced by the Courts in carrying out this exercise. These words are in fact borrowed ipsissima verba from Art. 19 (5) and we think it would be nothing short of heresy to accuse the constitution-makers of vague and loose thinking. The legislature performed a scissor and paste operation in lifting these words out of Art. 19 (5) and introducing them in S. 10 (3) (c) and if these words are not vague and indefinite in Art. 19 (5), it is difficult to see how they can be condemned to be such when they occur in S. 10 (3) (c). How can S. 10 (3) (c) be said to incur any constitutional infirmity on account of these words when they are no wider than the constitutional provision in Article 19 (5) and adhere loyally to the verbal formula adopted in the Constitution? We are clearly of the view that sufficient guidelines are provided by the words "in the interests of the general public' and the power conferred on the Passport Authority to impound a passport cannot be said to be unguided or unfettered. Moreover, it must be remembered that the exercise of this power is not made dependent on the subjective opinion of the Passport Authority as regards the necessity of exercising it on one or more of the ground stated in the section, but the Passport Authority is required to record in writing a brief statement of reasons for impounding the passport and, save in certain exceptional circumstances, to supply a copy of such statement to the person affected, so that the person concerned can challenge the decision of the Passport Authority in appeal and the appellate authority can examine whether the reasons given by the Passport Authority are correct, and if so, whether they justify the making of the order impounding the passport. It is true that when the order impounding a passport is made by the Central Government, there is no appeal against it, but it must be remembered that in such a case the power is exercised by the Central Government itself and it can safely be assumed that the Central Government will exercise the power in a reasonable and responsible manner. When power is vested in a high authority like the Central Government, abuse of power cannot be lightly assumed. And in any event, if there is abuse of power, the arms of the court are long enough to reach it and to strike it down. The power conferred on the Passport Authority to impound a passport under S. 10 (3) (c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Art. 14. But every exercise of such power has to be tested in order to determine whether it is arbitrary or within the guidelines provided in S. 10 (3) (c).
24. If the aforesaid ratio is kept in mind as per Article 14 of the Constitution, twin test laid down has equal application in Executive as well as legislation method to permit the basic feature of the Constitution to uphold equality. In an identical situation as to whether features on acquiring higher qualifications of B.Ed, are entitled to the revised scales in absence of JST/JAV training. The requirement of having JST/JAV training despite the fact that teachers are graduates are the subject matter of challenge before the Apex Court in Punjab Higher Qualified Teachers Union (non-petitioners) and others v. State of Punjab and others, (1988) 2 SCC 407 where the following observations have been made:-
2. As a matter of plain construction, we are quite clear in our mind that Graduate Teachers form a class by themselves and cannot be subjected to the further requirement of having JST/JAV training. The words plus JAV training' clearly qualify the word 'Matric' and relate only to Matriculate JBT Teachers. Such a classification for revision of pay satisfies the touchstone of Art. 14 and would render the action of the State Government in seeking to discriminate between Graduate Teachers with JST/JAV training and Graduate Teachers with or without such training, impermissible as the attempt is to create a class within a class without any rational basis.
25. Insofar as the classification conferring benefit of specified class of employees to a government servant is concerned, the permissibility has been a matter of examination before the Apex Court in General manager, North West Railway and others v. Chanda Devi, (2008) 2 SCC 108 where the following observations have been made:-
26. The Gujarat High Court in our opinion therefore, committed a fundamental error in opining otherwise. It failed to notice that when casual labour has been excluded from the definition of permanent or temporary employee, he with temporary status could not have become so and there is no legal sanction therefor. It is for the legislature to put the employees to an establishment in different categories. It may create a new category to confer certain benefits to a particular class of employees. Such a power can be exercised also by the Executive for making rules under the proviso appended to Article 309 of the Constitution of India. Dakshin Railway Employees Union, Trivandrum Division Vs. General manager, Souther Railway and Others [(1987) 1 SCC 677] whereupon reliance has been placed by the Gujarat High Court in Rukhiben Rupabhai (supra) does not lead to the said conclusion as was sought to be inferred by it. The question therein was as to whether any direction was to be issued to include the petitioners therein in the scheme for absorption as formulated pursuant to the directions of the Court.
26. In S.K. Chakraborty and others v. Union of India & others, (1988) 3 SCC 575 for permissible classification test, following observations have been made by the Apex Court:-
7. The second ground that there was discrimination against the petitioners referred to the Railway Board's Circular dated 13th Sept. 1984 which made an exception for the Integral Coach Factory at the Southern Railway and allowed the PCO to continue on cadre basis. It was submitted that this was a case of discrimination. It appears that the impugned Circular of 1984 of the Railway Board was issued pursuant to the negotiations with the staff in the Departmental Council of Ministry of Railways. The existing arrangement in the PCO of Integral Coach Factory was not disturbed because the recognised Unions there did not want it to be so disturbed, whereas in the PCO of Kharagpur the recognised Unions had already agreed, as appears from the impugned memorandum at Annexure 'I' that Railway Board's Circular dated 22-4-1963 would be implemented in the Kharagpur, PCO and that all posts in the PCO would be treated as ex-cadre posts. The Railway Board is fully competent to bring about necessary changes in the staff pattern of the various units under its control for the purpose of streamlining the organisation and improving the efficiency of the administration. Hence, there was a good ground for this differentiation which has a rational nexus with the object of streamlining the organisation. This differentiation cannot be condemned as violative of the rule of equality. It does not amount to hostile discrimination. Art. 14 of the Constitution forbids class disposition but permits reasonable classification for the purpose of disposition which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the disposition.
27. What discerns from the reading of the above is that in order to be a hostile discrimination, which is forbidden by Article 14 of the Constitution, creating a class within the class is not permissible.
28. In a Three-Judge Bench, the Apex Court in Balbir Kaur and another v. Uttar Pradesh Secondary Education Services Selection Board, Allahabad and others, (2008) 12 SCC 1, insofar as the region-wise selection of candidates when they have liberty to apply is concerned, following observations, which are relevant, are reproduced as follows:-
45. In our view, the said contention is also not well-founded. There is no warrant for accepting as a general proposition that a regionwise or districtwise selection is per se violative of equality clause enshrined in Articles 14 and 16 of the Constitution. It would be discriminatory only when the person, who alleges discrimination, demonstrates certain appreciable disadvantages, qua similarly situated persons, which he would not have faced but for the impugned State action. Therefore, the onus was on the writ petitioners to show by cogent material that by resorting to regionwise selection, they were placed in some disadvantageous position as compared to their counterparts or that in this process merit was the casualty.
46. In the present case, neither Section 10 of the Principal Act nor any other statutory provision forbids regionwise selection. Besides, no restriction was imposed upon the candidates insofar as their choice for the regions was concerned. An eligible candidate could apply in any of the regions and his application was to be considered in accordance with the Rules. It has neither been pleaded nor can it be held that the right of any eligible candidate to apply in a particular zone was curtailed or that an equal opportunity to compete had been denied to the respondents. It is not even the case of the respondents that a less meritorious candidate has been selected on account of regionwise selection.
47. The ratio of the decisions, relied upon by learned counsel for the respondents is not attracted to the facts of the present case. In the aforenoted decisions, zonewise, districtwise and unitwise allocation of seats and/or preparation of separate merit list for each zone in respect of candidates who appeared at the centres within the same zone were held to be discriminatory on the ground that by resorting to these procedures, the objective of selecting the best possible candidates was defeated. In all these cases, the petitioners had successfully demonstrated that as a result of zonewise or districtwise allocations, more meritorious candidates were denied admissions/employment and candidates with low merit were selected, which is not the case here.
29. Having regard to the above, as per Articles 14 and 16 of the Constitution restricting employment on the basis of qualifications or through a legislation denying eligibility to a person in a particular State whereas in other States one is eligible to be considered for appointment, is certainly an act, which does not smack of fairness, reasonableness, rationale and logic. It is no more res integra, as has been certified by the Department of Training and Technical Education and apparent from the replies of the respondents in these OAs, that once a person with educational qualification of 10+2 with Physics, Chemistry and Mathematics is eligible to get admission in diploma in pharmacy and is also competent, this diploma is good for working as Pharmacist anywhere in India both in public as well as private sectors. The erstwhile recruitment rules of 1967 do not specify as to the eligibility criteria of educational qualification included Biology but Physics, Chemistry and Mathematics / Science was the criteria. However, the aforesaid legislation, i.e., notification dated 25.2.2003, which has brought about the amendment whereby in the column No.7 despite having the diploma in pharmacy one is also to be declared eligible only if he has passed 10+2 with Science stream where it is clarified that it would be Physics, Chemistry and Biology, has created a class within the class, as even in case of a degree in B-Pharmacy where a person is getting admission even with Mathematics stream on passing the degree is eligible to apply and in whose case the qualification of 10+2 with Biology would not be pressed under the recruitment rules, yet those candidates, who have applied for diploma in Pharmacy with a stream of Biology in 10+2 once obtained the diploma, the said diploma makes him eligible to be considered for appointment as Pharmacist under Govt. of NCT of Delhi. However, on the other hand, the same qualification of diploma in pharmacy if possessed by a candidate having passed 10+2 with Physics, Chemistry and Mathematics, he would be rendered ineligible. In fact, the class as such is of technically qualified candidates with diploma in Physics, yet by virtue of their eligibility qualification for diploma and on the basis of an additional subject of Biology, creating a class within the class and declaring the Mathematics stream candidates as ineligible, by no stretch of imagination can be found to be intelligible. The classification is unreasonable and discriminatory.
30. Basically from the pleadings filed by the respondents, the only justification has come forth to legislate and amend the rules under proviso to Article 309 of the Constitution for the post of Pharmacist by bringing in the educational qualification as an eligibility criteria as 10+2 with Physics, Chemistry and Biology and those candidates as per the requirement of the job having studied Biology are more apt as per the expert opinion while formulating the rules. This cannot be countenanced being not only illegal but irrational as well.
31. It is pertinent to note here that if a person with Mathematics stream is eligible to get admission and passed diploma in pharmacy where as per the curriculum/syllabus certified by Education Regulations of the Pharmacy Council of India Biology has been taught as a subject, then whether a person has Biology subject in his 10+2 or not would not make any difference. It is further pertinent to note here that the post of Pharmacist is a technical one and what is required for effective discharge of duties is knowledge in Biology, which is not disputed by the respondents to have been acquired by the applicants by way of diploma, which is not only recognized but also an eligibility criteria under the recruitment rules.
32. While stressing upon the plea that a candidate has eligibility criteria of 10+2 with Biology, what is being done is to make otiose and useless the technical diploma in pharmacy obtained by such a candidate, whereas the one, who has got the same diploma but with Biology, has been found to be eligible, we do not find any reasonable nexus in this classification of the respondents in the recruitment rules and qualifications, which has some reasonable nexus with the object sought to be achieved. If the object was to employ best of the talent and technically qualified Pharmacist, then the only source by which it could be done is the diploma possessed by such candidate where consistently in all the years of study Biology is one of the subjects. It is not rational that apart from diploma, which imparts and certifies a candidate having possessed the requisite qualification and expertise to the post of Pharmacist, any utility of their being studied Biology in 10+2 is instrumental in discharge of duties to the post of Pharmacist.
33. On the other hand, if the diploma awarding authorities are allowing both the streams in 10+2 to be eligible for admission in diploma course, then award of diploma by all means obliterates from erstwhile qualification whether from Mathematics or Biology streams. The object, which was to take a qualified Pharmacist, is achieved as soon as the person with diploma is recruited.
34. Another glaring example of unreasonable classification, which does not pass the test of Article 14 of the Constitution is that whereas in all over the country, except Delhi, a person with 10+2 in Mathematics stream and a diploma in pharmacy is eligible to apply for the post of Pharmacist, yet in Delhi when one being citizen of India cannot be denied employment, has been restricted and prejudiced on ineligibility by way of promulgation of these recruitment rules, which is a hostile discrimination and creating a class within the class.
35. If the recruitment rules are amended with a view to promote efficiency and expertise in technical qualification for a Pharmacist and when such a qualification with 10+2 in Mathematics stream has been certified by the Education Regulations of the Pharmacy Council of India as an apt qualification for employment, then the expert opinion is contradictory to the opinion now sought to be justified by the respondents, which shows that this legislation has been brought out with an extraneous consideration and with a view to deprive persons with eligibility qualifications for diploma. Though right to employment may not gain the status of a fundamental right under the Constitution of India, yet this right cannot be denied on arbitrary basis to a candidate.
36. Another aspect of the matter, which requires consideration is that uniformity in educational qualification for the post of Pharmacist, which has identical duties, functions and duties attached not only in the Govt. of NCT of Delhi but everywhere in the country, a distinction made in the qualification, that too, not the technical one but a pre-requisite for technical qualification, no reasonable nexus on an intelligible differentia is found, which satisfies any object sought to be achieved by the Govt. of NCT of Delhi. In fact, this amendment has been carried out not to disqualify a class of people but almost render all candidates, who have acquired diploma with 10+2 in Mathematics. Such a large scale injustice has to be redeemed to protect the constitutional right guaranteed to the applicants under Articles 14 and 16 of the Constitution. In the matter of employment even on legislative, which is found to be unreasonable classification and hostile discrimination, the same is not only amenable to judicial review but also to be declared ultravires.
37. We are satisfied that by rejecting the candidatures of applicants, their right to be considered for appointment has been denied in violation of Articles 14 & 16 of the Constitution, which is a wrongful denial, as ruled by the Apex Court in Uttar Pradesh Public Service Commission v. Satyanarayan Sheohare & another, 2009 (2) SCC (L&S) 265.
38. As a damage control exercise and adopting the principles of doctrine of severability and reading down the provision, we have no hesitation to rule that the recruitment rules assailed before us, more particularly column No.7 of the rules for the post of Pharmacist, which does not include the qualification of 10+2 with Physics, Chemistry and Mathematics as an eligibility criteria, cannot be sustained in law.
39. Insofar as the issue of giving reservation to the physical handicap is concerned, it is not disputed that the post of Pharmacist was identified as suitable for physical handicap reservation on 15.1.2007 but the said notification was not received till the requisition was sent to DSSSB on 31.7.2007 for 115 posts. However, the Department approached the DSSSB but once the recruitment has been initiated and reservation for physical handicap has not been notified, the same has not been incorporated.
40. As per Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and a trite law that once the post is identified as suitable, reservation is mandated. Merely because the Department was not apprised that does not deprive the applicant in OA-1310/2009 to be considered for such reservation, which cannot be denied to him as per the rules, which had the superceding effect on all other rules and regulations. As such, applicant in OA-1310/2009 has a right to be considered.
41. Resultantly, both the OAs are allowed to the extent that essential qualification prescribed for the post of Pharmacist, insofar it denies the stream of candidates with 10+2 with Physics, Chemistry and Mathematics, is illegal and the same is accordingly set aside. Respondents are directed to amend their recruitment rules to the extent that educational qualification for the post of Pharmacist should include 10+2 with Physics, Chemistry and Mathematics apart from Biology as an eligibility criteria. Without disturbing the appointments already made and keeping in view the fact that interim direction has been issued by the High Court of Delhi, which is continued before this Tribunal as well, applicants be treated deemed eligible and be offered appointment to the post of Pharmacist, including reservation to the physical handicap in case of applicant in OA-1310/2009, within a period of one month from the date of receipt of a copy of this order. No costs.
Let a copy of this order be placed in each file.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/