Central Administrative Tribunal - Delhi
Seema vs Delhi Subordinate Services Selection ... on 2 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI T.A. NO.1204/2009 New Delhi, this the 2nd day of November, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Seema, W/o Shri Sandeep Singh Mor, Resident of Village & Post Office Kanjhawala, Delhi Applicant (By Advocate: M.K. Bhardwaj) versus 1. Delhi Subordinate Services Selection Board, Through its Secretary, 3rd Floor, UTCS Building, Institutional Area, Vishwas Nagar, Shahdara Delhi 32 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, Delhi 6 3. Chief Secretary, Govt. of NCT of Delhi Delhi Secretariat, IP Estate, Delhi 4. The Directorate of Education, Govt. of NCT of Delhi Old Secretariat, IP Estate, Delhi 5. Govt. of National Capital Territory of Delhi Through Secretary, Department for the Welfare of SC/ST/OBC/Minorities, 2nd Floor, b block, Vikas Bhawan, New Delhi 2 Respondents (By Advocates: Shri Vijay Pandita for R-1, Shri Gaurang Kanth with Ms Biji Rajesh for R-2, Shri Nitish Kumar Singh for Mrs Avnish Ahlawat for R-4) O R D E R By Dr. Veena Chhotray, Member (A):
The TA 1204/2009 is being reconsidered in pursuance of the directions of the Honble Delhi High Court order dated 19.8.2010 in the WP (C) No.1376/2010. By this order, the Honble High Court has set aside the Tribunals order dated 17.8.2009 and restoring the TA remanded it to the Tribunal for adjudication with specific directions.
The TA 1204/2009 had arisen out of WP (C) No.6933/2009 transferred vide the Delhi High Courts order dated 6.4.2009. The petitioner, an OBC candidate for the post of Primary Teacher under the MCD, had been claiming the benefit of 5% relaxation in the stipulation of minimum 50% marks in the Sr. Secondary Examination, prescribed as one of the essential eligibility qualifications for the post. She had sought quashing the advertisement no.08/2007 dated 6.10.2007 by the DSSSB wherein the said relaxation had not been given to OBC candidates, though the same had been allowed for the SC/ST and PH candidates. According to the respondents, the advertisement had been issued in accordance with the RRs of the MCD and the said relaxation had been incorporated in accordance with the corrigendum dated 29.6.2007 issued by the DSSSB.
The TA had been allowed by the Tribunal, inter alia taking into account the GOI instructions, and considering the instant relaxation as a case of discrimination without any reasonable basis and in violation of Article 14 of the Constitution of India. Accordingly, the OA had been disposed with a direction to the respondents to refer the claim of the applicant as an OBC candidate for relaxation of 5% marks in Sr. Secondary School Certificate and after that for appointing her on the basis of her merit in OBC category, as age relaxation had been provided to OBC candidates as per GOI instructions.
In a challenge to the aforesaid decision of the Tribunal by the respondents in WP (C) No.1376/2010, the Honble High Court had not agreed with the view taken by the Tribunal. Instead it was held that the SC / ST candidates and OBC candidates do not form one homogeneous group and the question of parity, for purposes of equality, of SC/ST candidates with OBC candidates does not arise. Resultantly rejecting the Tribunals finding of parity of OBC candidates with the SC/ST candidates in this context, the impugned order had been set aside. However, while considering the WP(C), the Honble High Court had found merit in the contention of the respondents (the petitioners in the TA) regarding non-consideration of the issue raised vide ground B of the Writ Petition. Accordingly, the following directions were issued:-
7. But, noting that the issue raised vide ground B in the writ petition which was numbered as TA No.1204/2009 has not been decided by the Tribunal, we restore TA No.1204/2009 with a direction to the Tribunal to decide the question raised before it vide ground B of TA No.1204/2009.
2. While reconsidering the matter in accordance with the aforesaid directions of the Honble High Court, on behalf of the applicant, the learned counsel Shri M.K. Bhardwaj and for the Respondents the learned counsel Shri Vijay Pandita (Res.1), Shri Gaurang Kant with Ms. Biji Rajesh (Res.2) and Shri Nitish Kumar Singh for Mrs. Avnish Ahlawat for Res. 4 would appear before us. We have carefully considered the respective submissions by the learned counsels and the relevant material on record.
3. Since the reconsideration has been directed only in respect of the averments raised in Ground B of the TA, the same is being reproduced as hereunder:
B. BECAUSE, the power to amend recruitment rules exclusively lies with the National Council of Teacher Education which is an expert body pursuant to Sec. 12 (d) read with Sec. 32 (2)(d)(i) of the NCTE Act, 1993. The NCTE has already exercised such power and prescribed minimum qualifications in the NATIONAL COUNCIL FOR TEACHER EDUCATION (DETERMINATION OF MINIMUM QUALIFICATIONS FOR RECRUITMENT OF TEACHERS IN SCHOOLS) REGULATIONS, 2001. The said Regulations already cover the field of minimum qualifications for the post of primary teachers. As per Regulation 2, these Regulations are applicable for recruitment of teachers in all formal schools established, run or aided or recognized by Central or state Government and other authorities for imparting education at pre-school, nursery followed by first two years in formal school, elementary (primary and upper primary/middle school), secondary and senior secondary stages. Therefore, the same is applicable to the respondent-MCD schools as well. The grounds C, D and E, allied to Ground B are also being stated below:
C. BECAUSE, the NCTE has already prescribed the minimum qualifications for the appointment to the post of Primary Teacher under the NATIONAL COUNCIL FOR TEACHER EUDCATION (DETERMINATION OF MINIMUM QUALIFICATIONS FOR RECRUITMENT OF TEACHERS IN SCHOOLS) REGULATIONS, 2001, which were subsequently amended in the year 2003, which are given as under:-
Senior Secondary School Certificate or Intermediate or its equivalent; and Diploma or certificate in basic teacher training of a duration of not less than two years.
OR Bachelor of Elementary Education (B.El.Ed.) D. BECAUSE, the NCTE Act being a special Act, would override the provisions of the MCD Act (being a General Statute), in case of any conflict of provisions relating to a particular issue. In the present case, even if one finds that there is a conflict on the issue of minimum qualifications for appointment on the post of primary teacher, it is the provisions of the NCTE Act and the regulations framed thereunder which are to be held applicable and not the provisions of the MCD Act. It is most respectfully submitted that the NCTE being a specialized and expert body, with respect to teacher education, is entitled to be given more weightage rather than the MCD declared educational qualifications under the impugned regulations.
E. BECAUSE, the respondents vide the impugned regulations and advertisement have usurped the powers of National Council of Teacher Education to frame the minimum qualifications for Primary Teachers which is beyond their powers.
4. To reinforce his arguments, the learned counsel for the applicant, Shri M.K. Bhardwaj would submit a Compilation of documents. The learned counsel would advert to the NCTE Notification No.F.51-1/2009-NCTE(N&S) dated 31st August, 2009 (Annexure R/1 of the Compilation) to contend the un-sustainability of the present relaxation by the respondents. This Notification pertains to the National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2009. The learned counsel would draw our attention particularly to the eligibility conditions prescribed vide Appedix-2 dealing with norms and standards for Diploma in Elementary Teacher Education Programme leading to Diploma in Elementary Education (D.El.Ed.). Clause-3 prescribes the norms for Intake, Eligibility and Admission Procedure with the following eligibility conditions as per sub-clause 2:
(2) Eligibility Candidates with at least 50% marks in the senior secondary (+2) or its equivalent examination are eligible for admission.
The reservation for SC/ST/OBC and other categories shall be as per the rules of the Central Government / State Government, whichever is applicable. There shall be relaxation of 5% marks in favour of SC/ST/OBC and other categories of candidates. It would be the contention of the learned counsel that as the NCTE itself, while prescribing 50% marks in Sr. Secondary or its equivalent examination, and giving a concession of 5% marks, by way of relaxed standards to the reserved category candidates, had included the OBC along with SC/ST and other categories: the impugned corrigendum dated 29.6.2007 issued in the instant case by the DSSSB with regard to the MCD was in conflict with the provisions under the NCTE Regulations.
5. The learned counsel Shri Bhardwaj would also rely upon the decision of the Apex Court in State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors, (2006) 9 SCC 1, dealing with a matter pertaining to power and functions of NCTE vis-`-vis the State Government/University in the matter of recognition for starting Teachers Training and Education Courses. In this case, taking into account the fact about the NCTE having been established under the National Council for Teacher Education Act, 1993 enacted by Parliament and the Central Government having considered the matter at national level, it was held by the Honble Apex Court that the final authority in the matter lay with the NCTE.
6. The main argument of Shri Bhardwaj would be that once relaxation had been provided at the time of admission for a course and provision had been made for relaxations for SC/ST/PH candidates in the eligibility conditions for appointment to the post, not providing similar concessions to the OBC candidates at the time of the appointment would not be in conformity with law. It would also be submitted that the present situation would render the purpose of the technical education itself infructuous.
7. Besides, as stated in the grounds B, C, D and E, the arguments would run : (a) the power to amend the Recruitment Rules lies exclusively with the NCTE, an expert body, in pursuance to Section 12 (d) read with Section 32 (2)(d)(i) of the NCTE Act, 1993. (b) the NCTE Determination of Minimum Qualification for Recruitment of Teachers Regulations, 2001 as amended subsequently in 2003 prescribe the minimum qualifications for the post of Primary Teachers, which are applicable even to the schools run by the MCD as per Regulation 2 thereof. Thus, the field in the matter of prescription of minimum qualification for Primary Teachers is already covered by these Regulations, any amendment can only be done by NCTE. On this ground a usurpation of powers of the NCTE by the respondents has also been alleged. (c) In case of a conflict, the NCTE being a special Act would override the provisions of the MCD Act, which is a general statute.
8. The learned counsel for the respondents would raise the preliminary objection of the claims being barred by constructive res judicata in the context of the decision of the Honble High Court vide its judgment dated 11.8.2008 in WP (C) 7297/2007 (Sachin Gupta & Ors vs DSSSB & Ors along with a bunch of other Writ Petitions including the WP(C) No.7841 of 2007, in which the present applicant was also a petitioner. The learned counsel would also draw our attention to Para 60 of this judgment, which had upheld the legal tenability of the prescription of at least 50% marks in the Sr. Secondary Examination as an essential eligibility condition for the post of Primary Teacher.
As per short counter affidavit, the proposal for relaxation is said to have emanated against the background of the Writ Petitions moved before the Delhi High Court challenging the new Rules. Para-12 states about some candidates submitting before the Honble High Court about having been admitted in the ETE examination on the basis of 45% marks and on that ground claiming a relaxation of 5% in the prescribed criteria for appointment to Assistant Teacher (Primary) post also. As per the respondents, in the case of OBC candidates, a relaxation of 5% marks had not been granted in the admission in the ETE Course. It is further stated that some of the candidates had moved to the National Commission for Scheduled Caste, Government of India, requesting for this relaxation. In this background, the approval of the proposal relaxing the essential qualification of possessing 50% marks for SC/ST/PH candidates is stated to have been obtained.
9. We have carefully considered the respective submissions. As regards the preliminary objection regarding constructive res judicata being raised by the respondents, not that after due consideration this preliminary objection had not been found sustainable by the Tribunal in its earlier order. The relevant para 15 is extracted below:
Insofar as the preliminary objection of constructive res judicatea is concerned, what has been challenged before the High Court was the vires of rules but the relaxation given to other categories discriminating the applicant not being a cause of action has not been conclusively decided between the parties and there was no occasion for the applicant to raise this grievance, which was different from the grievance originally raised before the High Court. Discrimination violative of Article 14 of the Constitution confers as a fundamental right to the applicant the right to redress her grievance in accordance with law. As such, the objection of constructive res judicata stands overruled. This view has not been overruled by the Honble High Court in its order dated 19.8.2010, while remanding the case for reconsideration. Hence, reiterating our earlier view on the subject and without going once again into this preliminary objection, the reconsideration is being confined only in terms of the specific directions of the Honble High Court.
10. We would be having a close look at the submissions by the learned counsel to establish his case on Ground B and the allied Grounds C, D and E of the TA. We would also need to, while dealing with these issues, at appropriate points, refer to the view already taken by the Honble Delhi High Court in its order dated 11.8.2008 disposing Sachin Guptas and other Writ Petitions (supra). Though not dealing with the issue of relaxable standards raised in the instant OA, its judgment has given a finality to the related basic of the legal sustainability of these rules themselves.
10.1 In Sachin Guptas case (supra) the vires of the RRs for the posts of Assistant Teacher (Primary) in the GNCTD as well as the MCD had been challenged. In case of MCD, with which the present TA is concerned, the challenge was to be Urban Departments Notification dated 13.7.2007. Both these RRs were identical. One of the points of challenge was prescribing the minimum marks of 50% in Sr. Secondary Examination as an essential eligibility condition. Both these RRs had been held to be statutory and legislative in character. In case of MCD it was by virtue of exercise of its powers under Section 98 following the procedure prescribed in Section 480 (2) of the Delhi Municipal Corporation Act, 1957 (paras 2 and 45).
Further, the contention of the impugned RRs being ultra vires vis-a-vis the National Council of Teacher Education, 1993 Act, enacted by the Parliament in exercise of its powers under Entry 66 of List I, Schedule VII to the Constitution, though raised by the petitioners as per paras 12 to 14 had not been found as tenable. Para 13 had raised the contentions virtually identical to those covered in Ground B of the present TA and had also cited the decision of the Apex Court in Sant Dnyaneshwar Shikshan Shastra Mahavidyalayas case (supra). On the other hand, the Honble Apex Court had opined that the NCTE Act only lays down minimum qualifications for a person to be employed as an Assistant Teacher (Primary). Consequently it was always open to the respondents to prescribe additional qualifications. In this context, functions of the Council stipulated in Section 12 (d) of the NCTE Act had been referred. There was a specific finding about there being neither any inconsistency nor contradiction between the NCTE Act, NCTE Regulations on the one hand and the impugned RRs on the other hand (paras 52 and 53). Upholding the prerogative of the respondents, as an Employer to decide the academic suitability of the candidates they wished to employ, it had been stated that so long as the same were not contradictory to the academic eligibility as prescribed by the NCTE Act, challenge to the same, merely because it rendered some candidates ineligible, ought to be rejected (para 54).
10.2 It would be appropriate for us to examine the present contentions also in the above context. The view taken by the Honble High Court while dealing with the vires of the RRs themselves rests on the basic premises that these RRs per se are not in conflict with the NCTE Act or Regulations and hence not ultra vires. In the present case also the only ground can be in case of the MCD RRs being in conflict with the NCTE RRs or the Regulations.
11. The Ground B of the TA avers regarding the exclusive power of the NCTE, as an expert body, to amend the Recruitment Rules. It has referred to the provisions of the NCTE Act, 1993 Sections 12 (d) read with Section 32 (2)(d)(i). Besides it has also referred to the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools Regulations), 2001 and its subsequent amendments in 2003. The Regulation 2 has also been mentioned with regard to the scope of its application.
11.1 The NCTE Act, 1993 was an Act enacted by the Parliament providing for establishment of a National Council for Teacher Education with a view to achieving planned and coordinated development of the Teacher Education system throughout the country, the regulation and proper maintenance of norms and standards in the Teacher Education System and for connected matters. Section 12 dealing with Functions of the Council lists out the specific fields. Sub-Section (d) lays down guidelines in respect of minimum qualifications for a person to be employed as a teacher in Schools or in recognized institutions. Section 32 deals with the powers of the Council to make regulations. Sub-Section (2) (d) (i) thereof deals with the norms, guidelines and standards in respect of the minimum qualifications for a person to be employed as a Teacher under Clause (d) of Section 12.
11.2 The relevant Regulations framed by the NCTE in pursuance of these powers are the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 notified vide the GOI Gazetted Notification No.238 of September 4,2001. Regulation 2 prescribes the scope of their applicability:
2. Applicability These Regulations shall be applicable for recruitment of teachers in all formal schools established, run or aided or recognized by Central or State Government and other authorities for imparting education at elementary (primary and upper primary/middle school), secondary and senior secondary stages. Regulation 4 also states regarding the modification of the existing recruitment rules within a period of three years so as to bring them in conformity with the qualifications prescribed in the Schedules annexed to these Regulations. The First Schedule, inter alia, prescribes the following minimum academic and professional qualifications for recruitment of teachers for Elementary (Primary) education:
i. Senior Secondary School Certificate or Intermediate or its equivalent; and ii. Diploma or certificate in basic teachers a duration of not less than two years.
OR Batchelor of Elementary Education (B.El). These Regulations, though got further amended in 2003, did not make any alteration in the above provisions.
11.3 From the above, it clearly emerges that the NCTE (Recognition, Norms and Procedure) Regulations, 2009 being relied upon by the learned counsel Shri Bhardwaj are not the relevant Regulations under the present context. These Regulations pertain to the functions of the Council as prescribed under Section 12 Sub-Section (e) of the NCTE Act, running as under:
e) lay down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum; We also take note of the fact that the 2001 / 2003 Regulations regarding determination of minimum qualifications for Teachers Recruitment do not contain corresponding provisions regarding the prescription of minimum 50% marks in Secondary School level and the 5% relaxation for SC/ST/OBC as prescribed under the 2009 Regulations, Appendix II, dealing with norms for Diploma in Elementary Teacher Education Programme. Therefore, the contention of the learned counsel for the applicant that the impugned corrigendum issued by the respondents providing 5% relaxation only for the SC/ST, while excluding the OBC candidates, as being in consistent and in contradiction to the norms prescribed by the NCTE is not found to be tenable. As regards the issue of their repugnance to the relevant NCTE norms prescribed for minimum qualifications for teachers recruitment as per their 2001 / 2003 Regulations, this issue is no more res integra in view of the clear findings by the Honble Delhi High Court in Sachin Gupta & Ors case (supra), as already elaborately referred by us in para 10.1 above.
11.4 The validity of the 2007 Recruitment Rules of the MCD prescribing these standards for recruitment has already been upheld by the Honble High Court as being statutory and legislative in character and having been enacted in exercise of the powers by the MCD under Section 98 following the procedure in Section 480 (2) of the Delhi Municipal Corporation Act, 1957. The DMC Act is a Central Act enacted by the Parliament. Section 98 dealing with the power of the Corporation to make regulations prescribes under Sub-Section (c) the regulation making powers to prescribe qualifications of candidates for appointment to posts under the Act. Section 480, sub-section (2) makes the approval of the Central Government and publication in official Gazette as obligatory for any Regulations framed under the Act. As stated by the MCD in their counter affidavit, the impugned relaxation has been issued as per the provisions of the RRs. To quote from the relevant extracts:
15. It is further submitted that s per the column no.6 of the RRs for the post of Teacher (Primary) it is mentioned that Nothing in these rules shall affect reservation, relaxation of age limit and other concession required to be provided for the scheduled castes, the Scheduled Tribes, Ex-servicemen and other special categories of persons, in accordance with the orders issued by the Government of India from time to time.
12. The reliance placed by the learned counsel, Shri M.K. Bhardwaj on the judgment of the Apex Court in State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors case (Supra) would also not have any bearing on the issues raised in the present TA. This was a case relating to the grant of recognition by the NCTE for starting a B.Ed Degree Course from the academic year 2005-2006 as per the relevant NCTE Regulations, 2002. Regulation 6 thereof had stipulated regarding the application for recognition to be accompanied by an NOC from the State / UT. However, in the instant case, the State Government had refused permission on the plea that they had taken a policy decision for not granting NOC to any Institution for starting a new B.Ed College during the relevant academic year.
The Honble Apex Court had upheld the view taken by the High Court and ruled that so far as coordination and determination of standards in Institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List-1 Schedule Seven to the Constitution and the State has no power to encroach upon the legislative power of the Parliament.
As the present issue is an entirely different one, i.e. prescribing minimum qualifications for appointment of Primary Teachers, the above decision would not be applicable in the present case. This aspect also is no more res integra in view of the decision of the Honble Dehi High Court on the subject in the case of Sachin Gupta (supra).
13. The learned counsel Shri Bhardwaj has also raised the plea of the basic inconsistency in the scenario where while the prescribed eligibility norms for the relevant Teachers Training Diploma Course make the OBC candidates eligible for a 5% relaxation in the stipulation of minimum 50% marks at Secondary level; the same stands denied to such candidates in the matter of appointment to the very posts for which these Courses are intended.
The underlying issue of legitimate expectation had also come in for consideration of the Honble Delhi High Court in Sachin Guptas case and a similar plea rejected. Para 49 is extracted below:
49. In our opinion, the doctrine of legitimate expectation, referred to by the Petitioners, has no application to the present case as the Respondents have never represented or held out to any student entering into an ETE course, that he would be given employment with the respondents. In fact, ETE is a professional training course and the candidates securing such degrees are free to pursue other career options all over India with other agencies as well. The course does not confer any vested right of employment with either the Government or MCD. In view of the absence of any representation regarding employability with the Respondents alone upon completion of a qualifying course, the Petitioners plea of legitimate expectation merits no acceptance. To conclude, the Honble Delhi High Court while remanding this TA to the Tribunal has already conclusively rejected the ground of any claimed parity, for purposes of equality of OBC candidates with the SC/ST ones, on the ground that they do not form one homogenous group and cannot be treated at par with the SC/ST candidates. Having considered at length the relevant provisions of the NCTE Act and the 2001 / 2003 Regulations prescribing the minimum qualifications for appointment of Primary Teachers, vis-`-vis the RRs of the MCD, 2007 duly framed under the DMC Act, we do not find the present case as one of constitutional inconsistency or repugnance. We have also been guided in the matter by the law already laid as regards the basic validity of the MCD RRs vis-`-vis the NCTE Act and Regulations and several allied aspects by the Honble Delhi High Court in Sachin Guptas case and Ors (supra). The contentions raised in Ground B or the allied Grounds C, D and E of the TA of there being any repugnance to the NCTE Act or any usurpation on the part of the MCD of the powers of the NCTE are not found to be tenable. Resultantly, on a reconsideration of the matter in accordance with the remand directions of the Honble Delhi High Court, the TA is found to be devoid of merit and dismissed hereby with no orders as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU) MEMBER (A) MEMBER (J) /PKR/