Central Administrative Tribunal - Delhi
Saheba vs Govt. Of Nctd on 13 September, 2023
1
Item No. 32 (C-4) O.A. No. 2424/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 2424/2018
This the 13th day of September, 2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Saheba
D/o. Mohd. Idris
R/o. V-47, Street No. 22-B,
Vijay Park, Moujpur, Delhi-110 053.
Aged about 27 years,
(Group 'B')
(Candidate to the post of TGT (Computer Science)
...Applicant
(By Advocate : Mr. Ajesh Luthra)
Versus
1. GNCT of Delhi
Through its Chief Secretary,
5th Level, 'A' Wing,
Delhi Secretariat,
IP Estate, New Delhi.
2. Delhi Subordinate Services Selection Board
Through its Secretary,
F-18, Karkardooma Institutional Area,
New Delhi.
3. Directorate of Education
Through its Director,
(GNCT of Delhi)
Old Secretariat, Delhi - 110 054. ...Respondents
(By Advocate : Mr. Anuj Kumar Sharma)
2
Item No. 32 (C-4) O.A. No. 2424/2018
ORDER (ORAL)
Hon'ble Mr. Manish Garg, Member (J) In the instant O.A, the applicant seeks the following reliefs :-
"8 (a) Hold and declare that the respondents have wrongly withheld the appointment of the applicant to the post of TGT (Computer Science) (Post Code 192/14) and
(b) Direct the respondents to further consider and allow the applicant to join the post of TGT (Computer Science) (Post Code 192/14) for which the offer of appointment had already been issued to her.
(c) Accord all consequential benefits including backwages and seniority.
(d) Award costs of the proceedings ; and
(e) Pass any order/relief/direction(s) as this Hon‟ble Tribunal may deem fit and proper in the interests of justice in favour of the applicant."
2. In support of the instant reliefs learned counsel for the applicant relied upon the mark sheet issued by the University of Delhi wherein, for all three years the applicant has studied Computer Science as one of the main subjects. He further contended that in terms of the Recruitment Rules, the applicant fulfills all the eligibility criteria. He also draws reference to the certificate issued by the College affiliated to the University which is reproduced as under :-
"TO WHOMSOEVER IT MAY CONCERN This is to certify that Ms. Saheba D/o. Mr. Mohd. Idris has been a Bonafide student of this college during the period July, 2008 to April, 2011 in B.Sc 3 Item No. 32 (C-4) O.A. No. 2424/2018 (General) Course vide College roll no.1611, University Enrolment No. DAV-694/08 and University Examination Roll No. 3069970.
She appeared in the B.Sc (General) IIyr Examination of the University of Delhi held in April 2011 and passed the same in First division obtaining 810 marks out of 135 marks.
Her Date of Birth according to the records of the college is 28.02.1991.
She has studied Computer Science as one of the main subject in all the three years of the course as per University marksheet."
3. Learned counsel for the respondents vehemently opposed the grant of relief relying upon the counter affidavit more specifically contending that the candidate was possessing B.Sc. Degree from University of Delhi and that is a general graduation degree in science with computer science as one subject and the applicant did not study Computer Science as main subject having equivalent weightage of marks. Therefore, it cannot be deduced that computer science was the main subject of the applicant.
4. Learned counsel for the respondents has relied upon para 4 of the their reply which reads as under :-
"The Hon‟ble Supreme Court in state of M.P. Vs. Dharam Bir reported in 1998 (6) SCC 165 held as follows :-
"The court as also the Administrative Tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing essential educational qualifications, 4 Item No. 32 (C-4) O.A. No. 2424/2018 should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the statutory provisions made by the Govt. under Article 309 of the Constitution."
5. We have considered the rival contentions of the either parties. It is not in dispute that the similar contentions were urged by the respective counsels in batch of matters in OA No. 2421/2018 and ors., titled Yogesh Sharma & Ors. vs. UOI & Ors. For ready reference the relevant extract of the said judgment mentioned above decided by the Coordinate Bench of this Tribunal is reproduced as under:-
9.21 The qualifications of teaching staff are also clearly mentioned in Appendix-7 of bye-laws of CBSE 2018. 9.22 In compliance of decision of Hon„ble High Court of Delhi in the case of GNCTD vs. Sachin Gupta and batch cases, WP (C) No.1520/2012 decided on 07.08.2013, Assistant Director of Education (E-II) issued the corrigendum dated 05.07.2017, which reads as under:
"CORRIGENDUM In supersession of previous corrigendum No. DE.3(29)/E- III/DR/10/6178-6189 Dated 30/03/2010, the term "elective" as specified in Recruitment Rules of TGT/TGT(MIL) may be read as under :
"The candidate should have studied the subject concerned as mentioned in the RR„s for atleast 02 years during the Graduation course. The elective word may also include main subject as practiced in different universities."
The above definition of the term elective shall apply to all orders of promotion and direct recruitment issued by this office from time to time.
This is in compliance of the Hon„ble High Court of Delhi Order dated 07th August 2013 in WPC No.1520/2012, GNCTD versus Sachin Gupta, WPC No.4483/2012 GNCTD & Ors versus Vikram Singh, WPC 2514/2012 GNCTD & Ors versus Snehlata, WPC 5 Item No. 32 (C-4) O.A. No. 2424/2018 4301/2012 GNCTD & Ors versus Nainika, WPC 575/2013 Director of Education and ANR versus Neelam Rana.
This issues with the prior approval of the Competent Authority.
(MANVINDER SINGH) ASSISTANT DIRECTOR OF EDUCATION (E-III)"
No.DE.3(15)DR/E-III/Elective/2017 Dated: 5-7-17"
9.23 The Delhi University (In Short DU) was a Central University founded in 1922 by Act of Central Legislative Assembly and is recognized by an Institute of Eminence (IoE) by UGC.
9.24 For the purpose of the present subject, we take note of the fact that vide communication dated 22.03.2018 issued by Department of Computer Science, University of Delhi which was addressed to the Assistant Director (Education), Directorate of Education, Delhi, few Under Graduate Science courses were declared equivalent. The Communication dated 22.03.2018 is reproduced below:-
"Subject: Equivalence of B.Sc.(G) Computer Science, B.Sc.(G) Applied Physical Sciences and B.Sc. Physical Science Degree of University of Delhi.
Dear Sir, This is to bring to your notice that consequent to the change in nomenclature adopted by the Delhi University, the following courses are equivalent.
B.Sc. (G) Computer Science (Upto 2004) Encl.1(1) B.Sc.(G) Applied Physical (2005-2009) Encl.1(2) Sciences B.Sc. Physical Science (2010-2013) Encl.2 B.Sc. Program Computer (2015 onwards) Encl.3 Science (CBCS) Minutes of relevant Council meetings are enclosed for above mentioned changes."
9.25 The said communication makes it abundantly clear that it is the faculty of Mathematical Sciences, University of Delhi, which is primarily responsible for providing guidelines on restructuring of University under-graduate Science programmes from time to time. Initially the programme of B.Sc. (General) Group-A, B.Sc. (General) Group B and B.Sc. (General) in Electronics, Computer Science, 6 Item No. 32 (C-4) O.A. No. 2424/2018 Industrial Chemistry, Analytical Chemistry, Biochemistry and B.Sc. (General) in Environmental Science, Sericulture, Agrochemicals and Pest Control was in place. In July 2005 the Council Branch of Delhi University restructured B.Sc. Programme in Physical Sciences, Life Sciences, Applied Physical Sciences and Applied Life Sciences. The objectives of the restructured B.Sc. Programme are reproduced below:
"To provide students a broad-based exposure to the critical domains of the sciences i.e. Physics, Chemistry, Biology in both single science domain and multiple science domain modes;
To provide students adequate background of Mathematical Sciences, and tools and techniques such as Computer Applications, Modern Instrumentation and Electronics, and Analytical Techniques;
To enable students to enhance their technical writing and communication skills To provide students adequate exposure to global and local concerns that explore the many aspects of social relevance in Environmental Science; and To permit students an opportunity to explore the multidisciplinary in science, particularly in those emerging areas that lie at the intersection(s) of physical, chemical, life and earth sciences including such cutting-edge areas like astrobiology, theoretical biology, geophysics, molecular palaeontology , biogeochemistry etc."
9.26 As per the structure of Examination, every candidate shall be required to take an examination at the end of the I, II, III years respectively as per the scheme of examination.
9.27 Further, it is important to note that the following combination of subjects are available:
"A. Physical Sciences
1. Physics, Chemistry and Mathematics xxx xxx xxx C. Applied Physical Sciences
1. Physics, Mathematics and Computer Science
2. Physics, Mathematics and Electronics
3. Chemistry, Industrial Chemistry and Mathophysics
4. Chemistry, Analytical Chemistry and Mathophysics 7 Item No. 32 (C-4) O.A. No. 2424/2018
5. Mathematics, Computer Science and Operational Research
6. Mathematics, Computer Science and Statistics"
9.28 It is also important to note that the recommendations of the Faculty of Mathematical Sciences made at its meeting held on 16.06.2015 and 03.07.2015 regarding syllabi on the following under-graduate courses/papers under Choice Based Credit System of Department of Computer Science, to be implemented from the academic session 2015- 2016, be accepted:
1. B.Sc. (Hons.) Computer Science
2. Computer Science in B.Sc. Programme
3. Computer Applications in B.A. Programme
4. Mathematical Sciences in B.Sc. (Prog.)
5. General Elective for students other than B.Sc.
(Hons./Computer Science 9.29 At this juncture we may also highlight that as per their own showing it is not disputed by the respondents that they have also filed order dated 22.03.2018 as highlighted above.
9.30 In the above rule position and factual scenario, the question remains in the present matter is as to whether what would be the stage of determining the issue of equivalence of degree in the matter of recruitment and selection process. In the present factual matrix it is not disputed that the result notice No.208 for TGT Computer Science was issued on 10.11.2017. Annexure-A-5 (Colly.) demonstrates that an offer of appointment was issued.
9.31 It is also not disputed by the respondents in their counter affidavit, where it has been contended that:
(i) while offer of appointment have been issued, the candidature of the applicants is still being decided by the Competent Authority.
(ii) The applicants have not made it clear that in which clause of qualification of the RRs of TGT-
Computer Science, they possesses the requisite qualification.
(iii) Applicants are not having exact qualification clearly prescribed in the RRs of the TGT-Computer Science.
9.32 At the same time, it is not in dispute that applicants have not possessed the qualification 8 Item No. 32 (C-4) O.A. No. 2424/2018 mentioned in the RRs of TGT Computer Science. It is also not disputed in para 4.9 that B.Sc. Applied Physical Science and B.Sc. Physical Science courses of University of Delhi are identical/equivalent as specified by Head of the Department, Department of Computer Science, University of Delhi vide letter no.602 dated 22.03.2018.
9.33 It is also not disputed that the University of Delhi vide letter dated 23.10.2017 addressed to the Central Public Information Officer furnished the following relevant information:
"1. In B.Sc. Applied Physical Science with Computer Science, Physics, Computer Science & Mathematics are three subjects (2007- 2010).
2. In B.Sc. Applied Physical Science with Computer Science, Physics, Computer Science and Mathematics have equal weightage in the curriculum for all three years. Computer Science can not be considered as main subject in this course (2007-2010).
3. Yes, Computer taught in all three years of the course in B.Sc. Applied Physical Science (2007-2010).
4. Current name of B.Sc. Applied Physical Science is B.Sc. Programme (2017-2018)."
9.34 On the one hand, the respondent no.3, stated that the OA is premature as the issue is still being decided by the Competent Authority till date. However, till date the said decision has not been taken by the Competent Authority even though there is final notice to the last advertisement. As a model employer, respondent No.3 is casted with a responsibility as enshrined in the Constitution to sub- serve not only the fundamental duties under Article 51A but also to follow the aims and objectives of RTE Act.
9.35 The Central Government, by means of the notification dated 31st March, 2010 which was published in the Official Gazette dated 5th April, 2010, has authorized the NCTE as the ''academic authority' to prescribe the minimum qualifications which notification is as follows:-
"NOTIFICATION New Delhi, the 31st March, 2010 S.O. 750(E).--In exercise of the powers conferred by sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009, the Central Government hereby authorises the National Council for Teacher Education as the 9 Item No. 32 (C-4) O.A. No. 2424/2018 academic authority to lay down the minimum qualifications for a person to be eligible for appointment as a teacher."
9.36 The NCTE, accordingly, issued the notification dated 23rd August, 2010 which was published in the Gazette of India dated 25th August, 2010. The said notification lays down the minimum qualification for a person to be eligible for appointment as a teacher in Classes I to VIII in a school referred to in Section 2(n) of the Act, with effect from the date of the notification. However, another notification dated 29th July, 2011 was published in the Gazette India dated 2nd August, 2011. This notification made certain amendments to the notification dated 23rd August, 2010 published in the Gazette of India dated 25th August, 2010. The minimum qualifications prescribed in the Notification after the amendment for a person to be eligible for appointment as a teacher are as follows:-
1. Minimum Qualifications.-
(i) Classes I-V 38
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Elementary Education (by whatever name known).
OR Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002.
OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B.El. Ed.).
OR Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education).
OR Graduation and two year Diploma in Elementary Education (by whatever name known) AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
10Item No. 32 (C-4) O.A. No. 2424/2018
(ii) Classes VI-VIII
(a) Graduation and 2-year Diploma in Elementary Education (by whatever name known) OR Graduation with at least 50% marks and 1-year Bachelor in Education (B.Ed.) OR Graduation with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard.
OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.EI.Ed) OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year BA/B.Sc. Ed. or B.A. Ed./B.Sc. Ed.
OR Graduation with at least 50% marks and 1-year B.Ed. (Special Education) AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
2. Diploma/Degree Course in Teacher Education.- For the purpose of this Notification, a diploma/degree course in teacher education recognised by the National Council for Teacher Education (NCTE) only shall be considered. However, in case of Diploma in Education (Special Education) and B.Ed. (Special Education), a course recognised by the Rehabilitation Council of India (RCI) only shall be considered.
3. Training to be undergone.- A person -
(a) with Graduation with at least 50% marks and B.Ed. qualification or with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard shall also be eligible for appointment for Class I to V upto 1st January, 2012, provided he/she undergoes, after appointment, an NCTE recognised 11 Item No. 32 (C-4) O.A. No. 2424/2018 6-month Special Programme in Elementary Education.
(b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment, an NCTE recognised 6-month Special Programme in Elementary Education.
4. Teacher appointed before the date of this Notification.- The following categories of teachers appointed for classes I to VIII prior to date of this Notification need not acquire the minimum qualifications specified in Para (1) above,
(a) A teacher appointed on or after the 3rd September, 2001, i.e. the date on which the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in School) Regulation, 2001 (as amended from time to time) came into force, in accordance with that Regulation.
Provided that a teacher of class I to V possessing B.Ed. qualification, or a teacher possessing B.Ed. (Special Education) or D.Ed. (Special Education) qualification shall undergo an NCTE recognised 6-month special programme on elementary education.
(b) A teacher of class I to V with B.Ed. qualification who has completed a 6-month Special Basic Teacher Course (Special BTC) approved by the NCTE;
(c) A teacher appointed before the 3rd September, 2001, in accordance with the prevalent Recruitment Rules.
5.(a) Teacher appointed after the date of this notification in certain cases: Where an appropriate Government or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of this Notification such appointments may be made in accordance with the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time).
(b) The minimum qualification norms referred to in this notification apply to teachers of Languages, Social Studies, Mathematics, Science, etc. In respect of teachers for Physical Education, the minimum qualification norms for Physical Education teachers referred to in NCTE Regulation dated 3rd November, 2001 (as amended from time to time) shall be applicable. For teachers of Art Education, Craft Education, Home Science, Work Education, etc. the existing eligibility norms prescribed by the State Governments and other school managements shall be applicable till such time the NCTE lays down the minimum qualifications in respect of such teachers.
12Item No. 32 (C-4) O.A. No. 2424/2018 9.37 In this background, the job profile of TGT Computer Science has to be seen which is very also relevant for the said purpose. The TGT has to teach the students primarily for class VI to X. 9.38 As already highlighted above, the qualifications of teaching staff are also clearly mentioned in Appendix-VII of bye-laws of CBSE, 2018. The course to be taught by the TGT Computer Science as per Appendix-VII is at A-5, the qualifications for appointment to the post of Teacher provides as follows:
A-5 Course COMPUTER APPLICATIONS
Qualification 1. B.Sc. Computer
Science/BCA/Bachelor of
Information Technology
OR
Graduate Degree in any subject with Mathematics as a subject and 3 years Diploma in Computer Engineering/IT from an Institution recognized by AICTE/University OR Graduate Degree in any subject with Mathematics as a subject and at least one year Diploma in Computer Applications from an Institution recognized by AICTE/University OR „A‟ level from DOEACC AND
2. Bachelor of Education (B.Ed.) from an institution recognized by NCTE.
9.40 It is also not a matter of dispute that once the recruiting agency, i.e. DSSSB has performed its duty and responsibility at the behest of user department, i.e. respondent no.3. The letter of offer of appointment has been issued therefore, it casted a fundamental duty upon respondent no.3 to form a Committee for the determination of issue of equivalence before issuing any letter of appointment.
9.41 It is also noticeable that time and again, in subsequent advertisement, as highlighted in final result notice No.134 for the purpose of TGT Computer Science post code 192/14 dated 22.04.2022, the stand of DSSSB was quite clear as reflected in point 4, which has already been reproduced herein-above. As can be seen even the letter dated 13.12.2021, 24.12.2021 and 03.02.2021 seeking clarification neither a Committee was formed nor the issue had been decided which not only runs 13 Item No. 32 (C-4) O.A. No. 2424/2018 contrary to the addendum notification issued on 06.10.2021 wherein it was clearly spelt out "keeping in view the contents of the aforesaid Gazette Notification, the difficulty is being faced by various job seekers and Government organizations in taking decision for recruitment of candidates for various posts having qualifications in Engineering and Technology at Degree and PG Level and also the provisions made in the new National Education Policy (NEP)-2020 about multi-disciplinarily and flexibility, it is hereby clarified that the aforesaid organizations should take into consideration the list of major disciplines of Engineering and Technology and their relevant/ appropriate branches with nomenclatures of UG and PG degrees as notified while deciding the Core branch and Allied branches. The Cases of candidates pertaining to the branches other than those pointed out in the above referred Gazette Notification, may be dealt with by recruiting organizations by convening a meeting of the Committee of Experts to decide the suitability based on the merit of each case(s) and the job requirements of the concerned organization."
9.42 In an article - Individualism, Indecision and Indifference - The Supreme Court and the Popular Will, 1870- 1949 by Edwin Rothman (Marquette Law Review Volume 35 Issue 3 Winter 1951-1952, what has aptly been described in the backdrop of pre- 1930 period and post -1930 (depression era) is equally true in this modern era, which reads as under:-
"The fear of all governmental solutions was explicable in the light of the fact that the essence of individualism is antipathy to governmental intervention. But individualism had produced problems and abuses which, it was strongly urged by reformers and radicals, only state in-tervention could remedy.
..........
As a result, although piece-meal governmental intervention was effected from time to time, each extension of such power was undertaken with misgiving. It is not difficult, therefore, to understand how this anomalous situation resulted in indecision.
.......
"Consequently, when adverse judicial rulings were rendered in a time of indecision, they had the effect of making more profound the existing confusion and uncertainty. On the other hand, when rendered during a period of indifference, the decisions were either 14 Item No. 32 (C-4) O.A. No. 2424/2018 applauded or disregarded by the people. (emphasis)"
9.43 The indecision cannot be ever said to be correct. This reality has plagued humankind for long time. The indecision is based upon an individualistic approach to an issue in hand, which may be contrary to popular will without ever being resolved, would time and again give way to indifference. The role of this Tribunal comes in as Administrative Tribunal comes in attempting to prevent administrative abuse of power and guiding the administrators in interpretation of the Rule position to sub-serve the objective of model welfare employer to dispel the chaos and confusion in the minds of popular will.
9.44 The respondent no.3 cannot take shelter on the ground that the matter was sub-judice and status quo was in operation, thus cannot be a silent spectator. Respondent without deciding the issue and forming the Committee went ahead for future vacancies in the year 2020-2021. Unless and until there had been clarity on the issue of equivalence, there is no justification coming forth for withholding the issue of equivalence till date. We are conscious of the fact that various laws laid down by the Hon„ble Apex Court that in case of Mukul Kumar Tyagi vs. State of Uttar Pradesh, (2020) 4 SCC 86, wherein, the Hon„ble Supreme Court has held that it is trite law that courts would not prescribe the qualification and or declare the equivalency of a course.
9.45 As already highlighted above, the case laws referred to above though very relevant to the issue can only be looked into if there is no sufficient ground and can be relied upon by the respondents only in the event they adhere to their own RR„s. In fact, keeping the issue pending for quite long as resulted in not only in an anomalous situation but also has resulted to failure of agencies to carry out the aims and objectives of RTE thereby defeating the very purpose of recruitment/selection process. It is not in dispute that there is an acute shortage of the TGT teachers. Such a callous attitude till date, as already highlighted above, in not deciding the issue and keeping the issue in limbo we must say that the respondent No.3 had failed to adhere to not only the provisions of Constitution but to apply with the provisions of Right to Information Act, 2005 (RTI Act). It is not disputed by the respondents that they had already received a clarification, as admitted in their counter affidavit and as already highlighted above, that there was only change in nomenclature of the post. We may also highlight that since the University of Delhi which is an Institute of Excellence has already clarified on the issue and also admitted in the counter affidavit filed on behalf of the 15 Item No. 32 (C-4) O.A. No. 2424/2018 respondents. More importantly, Sub-Rule 5.1.4 of Rule 5 as highlighted above in para 9.20 provides that where ever need arises, the provisions contained in clause 5.1.2 will prevail over the provisions contained in clause 5.1.3 and the provision contained in clause 5.1.1 (that is to say National Council for Teacher Education (Determination of Minimum Qualifications for Persons to be recruited as Education Teachers and Physical Education Teachers in Pre-Primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations as amended and notified from time to time.) will prevail over both 5.1.2 and 5.1.3.
9.46 Our view is further strengthened by the decision of Hon„ble Supreme Court in the case of Commissioner of Police, Bombay vs. Goverdhandas Bhanji, 1952 SCR 135, wherein, it is held that an administrative order cannot be construed in the light of the explanation subsequently given by the officer making the order about what he meant or what was in his mind or what he intended to do. Relevant part of the judgment reads as under:
"13. It is next necessary to determine whether the Government of Bombay had the power to cancel a license once issued. That depends on a consideration of the Rules. They are framed under S. 22 (1) (f), (g) and (h) of the City of Bombay Police Act, 1902. They regulate the "licensing, controlling, keeping and regulation" of places of public amusement in the City of Bombay. Rule 8 applies to any person desirous of "erecting" a cinema building."
9.47 The same was reported in the case of Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405. In Rashmi Metalliks vs. Kolkata Metropolitan Dev. Auth., (2013) 10 SCC 95 it was held as under:
"12. So far as the first point is concerned, it needs to be dealt with short shrift for the reason that the Courts below have not thought it relevant for discussion, having, in their wisdom, considered it sufficient to non-suit the Appellant- company for its failure on the second count. It has, however, been explained by Mr. Vishwanathan, learned Senior Counsel for the Appellant-company that at the material time there was no blacklisting or delisting of the Appellant-company and that in those circumstances it was not relevant to make any disclosure in this regard. The very fact that the Tendering Authority, in terms of its communication dated 22nd July 2013 had not adverted to this ground at all, lends credence to the contention that a valid argument had been proffered had this 16 Item No. 32 (C-4) O.A. No. 2424/2018 ground been raised. Regardless of the weight, pithiness or sufficiency of the explanation given by the Appellant-company in this regard, this issue in its entirety has become irrelevant for our cogitation for the reason that it does not feature as a reason for the impugned rejection. This ground should have been articulated at the very inception itself, and now it is not forensically fair or permissible for the Authority or any of the Respondents to adopt this ground for the first time in this second salvo of litigation by way of a side wind. The impugned Judgment is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned Judgment itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision. The following observations found in the celebrated decision in Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851 are relevant to this question :
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p.18):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow order."
13. So far as clause (j) of the detailed notice inviting E-tender No.01/KMDA/MAT/CE/2013-2014 dated 10.5.2013 emanating from the office of the Chief Engineer is concerned, it seems to us that contrary to the conclusion in the impugned judgment, the clause is not an essential element or ingredient or concomitant of the subject NIT. In the course of hearing, the Income Tax Return has been filed by the Appellant-company and scrutinized by us. For the Assessment Year 2011- 17 Item No. 32 (C-4) O.A. No. 2424/2018 2012, the gross income of the Appellant- company was Rs.15,34,05,627, although, for the succeeding Assessment Year 2012-2013, the income tax was NIL, but substantial tax had been deposited. We think that the Income Tax Return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest Income Tax Return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the Appellant- company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the Appellant-company, and not denied by the learned counsel for the Respondent- Authority, that the financial bid of the Appellant- company is substantially lower than that of the others, and, therefore, pecuniarily preferable.
14. In this analysis, we find that the Appeal is well founded and is allowed. The impugned judgment is accordingly set aside. The disqualification of the Appellant-company on the ground of it having failed to submit its latest Income Tax Return along with its bid is not sufficient reason for disregarding its offer/bid. The Respondents are directed, therefore, to proceed further in the matter on this predication. The parties shall bear their respective costs."
9.48 In the case of GNCT of Delhi vs. Sneh Lata, WPC No.1520/2012 decided on 07.08.2012, the Hon„ble High Court of Delhi held as under:
"38. This takes us to the most crucial question arising in the present petitions: Whether the corrigendum dated March 30, 2010 meant that the subject concerned had to be studied in each year of the three years' Graduation course?
39. What is the ethos of the corrigendum dated March 30, 2010?
40. To repeat, corrigendum dated March 30, 2010 prescribes that the expression 'elective subject' occurring in the Recruitment Rules means that 'The candidate should have studied the subject concerned as mentioned in the RRs in all parts/years of graduation. The elective word may also include main subject as practiced in different universities‟. It is clear that the ethos of the prescription contained in the corrigendum dated March 30, 2010 that 'the candidate should have studied the subject concerned as mentioned in the RRs in all parts/years of graduation‟ is that the candidate should have a deep understanding of the 18 Item No. 32 (C-4) O.A. No. 2424/2018 subject in which he is desirous of imparting education to the children.
41. All universities in India do not offer a particular elective subject in all three years' of graduation course as in the case of Nainika, Vikram Singh and Sachin Gupta, where Delhi University did not teach English/Hindi/Economics in all three years of B.A. program/B.Com (H) course (s) conducted by it. If the corrigendum dated March 30, 2010 is given a literal interpretation, all such candidates who have studied concerned subject i.e. the subject for which they have applied from the Universities which are not teaching said subject in all three years' of Graduation course offered by them would be rendered ineligible for appointment to the post of T.G.T. despite the fact they have studied the concerned subject in all parts/years in which the subject is taught by the university and have a good understanding thereof. This is absurd. It is a settled legal position that where literal meaning of a statute or rule leads to an absurdity, the principle of literal interpretation need not be followed and recourse should be taken to the purposive and meaningful interpretation to avoid injustice, absurdity and contradiction so that the intent of the purpose of Legislature is given effect to. Therefore, a meaningful and practical interpretation has to be given to the corrigendum dated March 30, 2010 and same should be interpreted as follows: 'the candidate should have studied the subject concerned as mentioned in the RRs in all parts/years in which the subject was taught during the Graduation course‟
42. It has also to be kept in mind that whereas the University of Delhi was teaching the concerned subject and was testing the knowledge of the students each year by assigning 100 marks to the paper i.e. three papers were being taught in the three years, as a result of restructuring, the number of papers continued to be three with marks assigned to each paper, being 100, except that now the three papers are taught in only two years. In other words the previous and the current position continues to be practically the same. It hardly matters whether three papers of 100 marks each are taught over three years or three papers of 100 marks each are taught in two years. A ready illustration could be a rational decision taken that unless a student studies History up to a particular level he may not understand the nuances of Political Science and hence a University may decide that the subject of Political Science should be taught after a foundation course in History is taught and this would mean that the subject of Political Science is introduced in the second year of study and continued in the third. The previous position of teaching Political Science in each year with one paper each year having 100 marks is replaced by teaching Political Science only in the 19 Item No. 32 (C-4) O.A. No. 2424/2018 second and the third year but retaining the three papers each having 100 marks.
43. In view of the aforesaid, respondents Nainika, Vikram Singh and Sachin Gupta who have studied the concerned subject, English/Hindi/Economics (one of the main subjects prescribed for T.G.T.(Social Science), in all the years in which the subject was taught during the graduation courses undertaken by them are eligible to be appointed to the post of T.G.T. (English)/(Hindi)/Social Science.
44. As regards respondent Snehlata, there is a subtle but material difference between the position of respondents Nainika, Vikram Singh and Sachin Gupta and she.
45. Respondent Snehlata had applied for being appointed to the post of T.G.T. (Sanskrit). It is an admitted fact that she has not studied Sanskrit subject in any year of the Graduation course undertaken by her, but has subsequently appeared in an examination conducted by the University and cleared three papers pertaining to Sanskrit subject after studying the same in one year.
46. The corrigendum dated March 30, 2010 prescribes that 'the candidate should have studied the subject concerned as mentioned in the RRs in all parts/years of graduation. The elective word may also include main subject as practiced in different universities‟. We emphasize the word 'studied' occurring in the corrigendum dated March 30, 2010. Respondent Snehlata who has not studied concerned subject i.e. Sanskrit subject in the graduation course undertaken by her is clearly not eligible for appointment to the post of T.G.T. (Sanskrit). After clearing the Graduation course and obtaining a degree what she has done is to have studied some kind of a course designed by the University and has learnt Sanskrit. The degree which she has in Graduation does not pertain to the subject Sanskrit.
47. The controversy pertaining to Neelam Rana is not in the context of what would be an elective subject studied during Graduation. Admittedly Neelam Rana seeks appointment as T.G.T. English, a subject which she never studied in her Graduation course which we find was B.Sc. (Botany) but she fights the battle on the strength of having obtained a Post Graduate Degree in English i.e. M.A.(English).
48. This issue is no longer res integra and stands decided by a decision of a Division Bench of this Court reported as 2002 (61) DRJ 58 Manju Pal v Government of National Capital Territory of Delhi. In said case, the appellant who had studied Hindi at Graduate level applied for being appointed to the post of Primary Assistant Teacher in the MCD. Despite being successful in the selection process 20 Item No. 32 (C-4) O.A. No. 2424/2018 conducted for said purpose, the appellant was not appointed to the post of Assistant Primary Teacher on the ground that she had not studied Hindi at the Higher Secondary Level and is thus not eligible for being appointed to said post. Aggrieved by the aforesaid, the appellant had filed a writ petition before a Single Judge of this Court which got dismissed. Aggrieved thereof, the appellant filed a Letters Patent Appeal before a Division Bench of this Court. The Division Bench allowed the appeal filed by the appellant and held that the appellant is eligible for being appointed to the post of Primary Assistant Teacher in MCD as she possessed a higher qualification than the qualification required for appointment to the post of Primary Assistant Teacher.
xxx xxx xxx
49. A similar view was taken by a Single Judge of this Court in the decision reported as 186 (2012) DLT 132 Kalpana Pandey v Director of Education & Ors. The aforesaid decision was affirmed by a Division Bench of Court in LPA No.640/2010 'Director of Education vs. Kalpana Pandey„ decided on September 18, 2012.
50. In view of aforesaid authoritative pronouncements, we hold that respondent Neelam Rana is eligible for being appointed to the post of T.G.T. (English), particularly when the Directorate of Education has placed no material before us to show that the person who has studied English at graduate level would be better equipped to teach English to students vis-à-vis a person who has obtained a Post Ggraduate degree in English language.
51. In view of above discussion, save and except respondent Snehlata, respondents in all other petitions i.e. Sachin Gupta, Nainika, Vikram Singh and Snehlata are held eligible for being appointed to the posts of T.G.T. applied by them.
52. Accordingly W.P.(C) No.1520/2012, W.P.(C) No.4483/2012, W.P.(C) No.4301/2012 and W.P.(C) No.575/2013 are disposed of upholding the claim of the respondents in said writ petitions before the Tribunal as per Original Application with the exception that they shall not be entitled to back wages but would be entitled to all consequential benefits such as seniority as per their merit position in the select panel and notional pay fixation with reference to the date of their joining being treated as the one on which the person immediately junior to them joined duty."
9.49 The present case is not even a case or issue in hand wherein the Court has to interfere with the minimum qualifications prescribed in the RRs. The present case is factually distinct where no decision has been taken till date thereby frustrating the 21 Item No. 32 (C-4) O.A. No. 2424/2018 process of recruitment/selection itself. It is also noticeable that in the present case there are ample evidence/document(s) on record issued by the University of Delhi and its constituent Colleges that there is a change of nomenclature of degree. The present case is in fact not a case of non-application of mind but even failure to apply its mind.
9.50 We may also highlight that the National Education Policy (NEP) 2020, calls for multi- disciplinarily and flexibility which is the fundamental in the field of education. It is also relevant that top companies who recruit graduates from B.Sc. Applied Science which illustratively are Oracle, Adobe, Reliance, Apollo, Genpact, Wifi networks, HP, APAC, ITC Infotech, HCL etc. The stand taken by the respondents that Computer Science is not a main subject either in B.Sc. Applied Physical Science or Physical Science is belied from the very fact that the colleges under the aegis of the University have certified that CS 110 Computer application is a main subject in para-1. Further, it has been certified that students have studied Computer Science as a main subject in all the three years. These facts are not in dispute. It is also important to note that for the purpose of taking admission in M.Sc. Computer Science, B.Sc. Program or B.Sc. Applied Physical Science with Mathematics and Computer Science/B.Sc. (General) Mathematical Sciences, with Maths and Computer Science from University of Delhi or any other University whose examination is recognized as equivalent to that of University of Delhi. Furthermore, Any Bachelor„s Degree of University of Delhi with at least six papers in Computer Science and two papers in Mathematics under Semester system/at least three papers in Computer Science and one paper in Mathematics under Annual Examination System or any other University whose examination is recognized as equivalent to that of University of Delhi.
9.51 For the sake of clarity, we may discuss the facts of each case in brief:
(i) OA No.2422/2018 - It is noticeable that the applicants in the present OA had graduated in B. Sc.
and studied Computer Science in all the three years as a main subject carrying maximum 150 marks. It is also highlighted that different Universities have their different nomenclature even though degree conferred is the same. MD University and Kurukshetra University confer graduation degree in Science with bare nomenclature B.Sc. without any further mention of any specific subject or discipline. It is also seen from the records that various colleges under the aegis of MD University, Rohtak as well as Kurukshetra University, and the certificates at 22 Item No. 32 (C-4) O.A. No. 2424/2018 Annexure A-10 colly. indicate that the applicants herein have studied Computer Science as main subject in all the three years. It is also noticeable that Department of Computer Science and Applications of Kurukshetra University had also issued a certificate No.CA/18/6465 dated 04.12.2018, which reads as under:
"TO WHOM IT MAY CONCERN Certified that Ms. Ritu D/O Sh. Ramphal Singh, Regn. No. 08-HGJ-301 has completed B.Sc. Degree with Computer Science as one of the main Subject during the Academic Session 2008-2011."
(ii) OA No.2423/2018 - In the present case, perusal of the record shows that the applicant had done M.Sc. (Informatics) and had studied computer science in all the four semesters and thus acquired higher qualification in the stream of Computer Science.
(iii) OA No.2300/2018 - In the instant case applicant is also a candidate from Delhi University and has acquired a Degree in B.Sc. (Physical Science). The claim of the applicant is similar to the applicant in OA No.2421/2018, which is a lead case in the present batch of cases.
(iv) OA No.2551/2018 - It is noticeable that the applicant in the present OA had graduated in B. Sc. from Osmania University, Hyderabad and studied Computer Science in all the three years as a main subject carrying maximum 100 marks in each year. It is also highlighted that different Universities have their different nomenclature even though degree conferred is the same.
9.52 We, therefore, hold that respondents were wrong in withholding the appointment/joining even though they had issued offer of appointment to the post of TGT Computer Science.
10. CONCLUSION:
10.1 In view of the above analysis, we allow all the OAs. The respondents are directed to allow the applicants to join as TGT Computer Science post code 192/14 for which they have already been offered the appointment, if otherwise found eligible, within a period of two months from the date of receipt of a certified copy of this order.
11. Cost made easy.
12. Pending MAs, if any, shall also stand disposed of accordingly.23
Item No. 32 (C-4) O.A. No. 2424/2018
13. Let a copy of this order be kept in the case file of each OA."
4. In the instant matter also the offer of appointment was issued to the applicant. Order of status-quo was also passed as an interim measure on 26.06.2018. Since the issue has already been settled by the Coordinate Bench of this Tribunal in OA No. 2421/2018 (supra) in the matter in hand is no more res integra as we cannot take a distinct or diverse view once the same has been already decided.
CONCLUSION:
5. In view of the above analysis, we allow the OA. The respondents are directed to allow the applicant to join as TGT (Computer Science) post code 192/14 for which she has already been offered the appointment, if otherwise found eligible, within a period of two months from the date of receipt of a certified copy of this order.
6. Cost made easy. There shall be no order as to costs.
(Dr. Chhabilendra Roul) (Manish Garg) Member (A) Member (J) /Mbt/