Delhi High Court
Ashik Abbas And Others vs Govt. Of National Capital Territory Of ... on 29 July, 1999
Equivalent citations: 80(1999)DLT810, ILR1999DELHI151
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikari, J.
1. All these writ petitions involve common question of facts and law and were heard together. These petitions are disposed of by this common judgment.
2. Since the question to be decided in these writ petitions is based on almost identical facts, for the purpose of convenience, facts of CWP.No.3464/98 are mentioned here:
3. The petitioners are holders of Diploma in Basic Training (DBT), which they have done from Jamia Millia Inslamia (JMI) University. It is the case of the petitioners, that DBT was considered at par with Elementary Training Education Training Course (ETE) being run by Govt. of NCT of Delhi/Respondent NO.1 for direct appointments as Primary School Teachers up to 1995. These Diploma Holders used to be considered for appointment as Primary Teachers in Schools run by Municipal Corporation of Delhi (MCD)/Respondent No.2. Even in 1996, the candidates who had done DBT done JMI were given equal chance to apply along with those who had done ETC from District Institutes of Education Training (DIET) which is being run by State Council of Educational Research and Training (SCERT). National Council of Teachers Education (NCTE) vide order dated 18.6.97, a statutory body of the Government of India under National Council for Technical Education under Section 14(3)(a) of the NCTE Act, 1993 granted recognition of "Elementary (Diploma in Basic Training) Teacher Education Course", in exercise of the authority vested in the Said Council under Section 14(3)(a) of the NCTE Act, 1993. The said recognition is given for a period of two years and is to continue subject to adherence to the NCTE, Act. The petitioners further contend that after doing Diploma in Basic Training, they got themselves registered at the Employment Exchange for Primary Teachers. On 11.6.98 Respondent No.2/MCD issued an advertisement inviting applications against vacancies of Primary School Teachers on prescribed forms. The relevant portion of the said advertisement is reproduced below:
"Applications are invited on prescribed forms for the post of Primary School Teachers in the Pay scale of Rs.4500-7000 (Re-vised) from candidates who have passed Elementary Teacher Education (ETE) Course with 50% marks (SC/ST/OBC 45%). OR passed above from District Institute of Education Training (DIET) run by State Council of Education Research and Training (SCERT) of NCT Delhi."
4. The petitioners applied for the post of Primary School Teachers pursuant to the aforesaid advertisement. However, petitioners were not considered for the said post as MCD entertained the applications of only those candidates who had done ETE course from DIET.
5. It is stated by the petitioners that the course of DBT is treated at par with ETE. The Dean and Head of Institute of Advance Study in Education of JMI had sent a representation dated 8.6.98 to the Chief Minister of NCT of Delhi requesting that the two courses be treated at par for the purpose of appointment as Primary School Teacher and on 11.6.98, Chief Minister had ordered that the students of JMI be treated at par with DIET students for job in MCD. It is also mentioned that Secretary Education of Language, Art and Culture of NCT of Delhi had sent a D.O. Letter dated 17.6.98 to respondent No.2 in which it is clearly stated that students who had done DBT from JMI were eligible to be considered for appointment as Primary School Teachers and their application forms should be accepted. In spite thereof, Respondent No.2 was not considering the candidature of the petitioners and, therefore, petitioners were forced to approach this court by way of these writ petitions with the following prayers:
"a. to the Respondent No.1 and 2 to treat the candidates who have qualified from Jamia Millia Islamia in Diploma is Basic Training (2 years course and who have obtained qualifying marks) at par with the candidates who have qualified from DIET's, run by SCERT of NCT of Delhi for the appointment of Primary Teachers as advertised on 11.6.1998 or any vacancies notified or to be notified thereafter:
b. directing the Respondent Nos. 1 and 2 to struck down any resolution under Section 92-A, purported to have been passed by the Respondent No.1 wherein the Respondent No.2 was authorized to only appoint the Primary Teachers out of the candidates who have qualified from FIET's of Delhi and not from any other recognised Institutions or Universities situated in Delhi, the same being arbitrary and discriminatory; and c. pass any other directions or order as this Hon'ble Court deemfit and proper."
6. The aforesaid facts are not in dispute. The notices in all these writ petitions were issued to the respondents who were duly served. Various interim orders were also made from time to time. Respondent Nos.2 and 3 have filed their replies. However, Respondent No.1, namely, Govt. of NCT of Delhi has failed to file any counter-affidavit in spite of opportunities granted on 13.8.98, 8.9.98 and 14.10.98. No counter-affidavit was filed even when the matter was listed on 19.11.98 and 14.12.98. On 17.2.99 order was passed giving another opportunity to file the counter-affidavit within four weeks and it was directed that the matter be listed for final hearing on 14.7.99. Even during this period no counter-affidavit was filed. On 14.7.99 when the mater came up for hearing, counsel for Respondent No. 1 stated that the matter has been marked to Mr.Anil Grover, Advocate recently and prayed that some more time may be granted to go through the papers and prepare the case. One last opportunity was granted to the Respondent No. 1 to address the arguments and matters were adjourned to 23.7.99. On 23.7.99 no body appeared on behalf of Respondent No.1. No counter-affidavit was also filed. Accordingly, I heard counsel for the petitioners in these cases as well as counsel for Respondents 2 and 3.
7. Counsel for the petitioners Mr. R.M. Tufail who appeared on behalf of some of the petitioners made the following submissions:
A. A perusal of the advertisement would show that applications were invited from all those candidates who had passed Elementary Teacher Education Course with 50% marks or passed above from DIET run by SCERT of NCT of Delhi. Even as per the advertisement, MCD could not confine the consideration of the candidates only from those who had passed the course from DIET. It had to consider the candidature of those who had passed this course from other institutions as well. Mr.Tufail further submitted that a perusal of order dated 18.6.97 of NCTE granting recognition to the Diploma in Basic Training Course of JMI University, would clearly show that this is described as ETE Course. Therefore, DBT course of JMI was same as ETE course and thus as per the advertisement itself applicants were entitled to be considered for the post of Primary Teachers.
B. It was further contended that consideration of those candidates who had passed ETE Course from DIET only and excluding the candidates who passed this course from other institutions although recognised, is clearly discriminatory and arbitrary and, therefore, violative of Articles 14 and 16 of the Constitution of India.
8. Ms. Madhu Tewatia on behalf of MCD submitted that by virtue of Section 92A of the Delhi Municipal Corporation Act, Delhi Subordinate Service Selection Board (DSSSB) was constituted by Respondent No.1 vide Notification dated 4.10.96 and it was for this Board to make the appointments to various groups B & C posts now. MCD had only to state vacancy posts to the DSSSB with request to the said Board to make the appointments. Therefore, MCD could do nothing more than to apply with the direction of the Board. Reference was also made to letter dated 14.5.98 of Govt. of NCT of Delhi on the basis of which it was contended that MCD was asked to appoint candidates who had passed the provisional qualification of JBT/ETE from DIET's run by SCERT and, therefore, according to this mandate applications of only those who had passed the examination from DIET were only to be considered. It was further pointed out that there were 3000 vacancies of Primary Teachers and MCD had already made appointments against 2000 posts approximately and remaining vacancies are now to be filled by DSSSB after the constitution of the said Board. It was also contended that the candidates like the petitioners were not totally excluded as another advertisement was also issued, which is enclosed as Annexure R-5 to the counter-affidavit of MCD by DSSSB for the post of Primary Teachers in MCD and as per the said advertisement persons like the petitioners who had done Diploma Course from other Institute could apply. As per this advertisement total number of posts were 3008 and, therefore, according to Ms.Tewatia, if by virtue of impugned advertisement dated 11.6.98 vacancies were filled only from those candidates who had passed ETE from DIET's run by SCERT, it could not said to be arbitrary.
9. I have given my considered thought to the arguments put by the counsl for the parties and for the reasons stated hereinafter, I am inclined to allow these writ petitions.
10. 1. Eligibility of the petitioners in terms of advertisement dated 11.6.98. The relevant portion of this advertisement is already reproduced above. This advertisement clearly makes all those candidates to be eligible to apply for the post of Primary Teachers who have done ETE course from an Institute other than DIET as well. The advertisement does not confine the consideration of applications of candidates who have done this course only from DIET, as word "OR" occurs in the said advertisement, thereby making candidates of two categories as eligible for consideration, namely, (1) candidates who had passed Elementary Teacher Education (ETE) . Course with 50% marks (in respect of Scheduled astes/Scheduled Tribes/Other Backward Classes 45%) OR (2) passed above from District Institutes of Education Training (DIET).
11. It is not disputed at the bar that the course of Diploma in Basic Training (DBT) done by the petitioners from JMI is same as ETE even otherwise order dated 18.6.97 of NCTE makes it clear and the same is reproduced belows:
ORDER "In exercise of the authority vested in the National Council for Teacher Education under Section 14(3)(a) of the NCTE Act,1993, the Northern Regional Committee grants recognition to institute of Advanced Study in Education, Jamia Millia Islamia University, Jamia Nagar, Delhi-110025 for the two year Elementary (Diploma Basic Training) Teacher Education Course from the year 1996-97 with annual intake of 60 students."
12. It is clear from the underlined portion, Elementary Teachers Education Course is treated as Diploma in Basic Training Course of JMI.
13. Moreover as pointed out above, even vide letter dated 17.6.98 Secretary, Language, Art and Culture of Govt. of NCT of Delhi had clarified that as per the advertisement applications could be considered of the students who passed ETE Course from DIET or from JMI. It was also pointed out that in JMI this course is variably known as ETE/JBT and there was only a variation in nomenclature. It is also stated that this Course from JMI was equivalent to DIET Course and was recognised by NCTE. After clarifying this position, it was further stated in the said letter as under:
"In view of the above, I would request you to direct your officials to immediately issue application form and accept the appli cations of those Jamia Milia students who fulfill conditions of your advertisement dated 11.6.98".
14.2.This is the stand taken by none else but Government of NCTD itself. In spite of this stand having been taken, it is not understood as to why MCD should have considered the applications of those students who passed ETE Course from DIET's only run by NCTD. The writ petitions deserve to be allowed on this ground itself as petitioners have right to be considered for appointment to the post of Primary Teacher as they are eligible as per the advertisement.
15. Even otherwise stand of the Respondents 1 and 2 to consider the candidates who passed ETE course from DIET's only is clearly arbitrary and discriminatory and violative of Articles 14 and 16 of the Constitution of India. In fact it may be stated at the outset that MCD has relied upon letter dated 14.5.98 to contend that Respondent No.1 had given directions to MCD to fill-up the posts from amongst those candidates who did ETE course from DIET's run by SCERT. A perusal of this letter would show that it is in reply to letters dated 27.2.98 and 10.3.98 of the MCD. For our purposes it is letter dated 27.2.98 which is relevant as letter dated 10.3.98 deals with filling up of the posts of Staff Nurses in MCD. A copy of letter dated 27.2.98 was produced before me. A perusal thereof would show that Education Committee of MCD had resolved that candidates who passed the ETE course from DIET's may be appointed to the post of Primary Teachers each year without adhering to the normal selection criteria as MCD wanted to appoint these candidates directly. It was stated that the posts so filled by DIETs, students need not be informed to DSSSB. In these circumstances, in letter dated 27.2.98, a request was made to Respondent No.1 to accord permission to MCD to fill up the posts of Primary Teachers directly from the candidates who passed ETE Course from DIET each year and balance vacancies of Primary Teachers each year should be intimated to DSSSB as usual. It was in response to this letter that NCTD wrote letter dated 14.5.98 according to such approval. Therefore, it is at the instance of MCD that respondent No.1 had accorded such permission. Be that as it may, consideration of candidates only from amongst those who did ETE course from DIET run by SCERT and excluding the students who passed from other institutes although their courses are recognised by NCTE, a statutory body, is clearly discriminatory. Counsel for MCD Ms.Madhu Tewatia stated that MCD had acted on the direction of NCTD and simply followed the direction of NCTD in this respect. However, NCTD did not file any counter-affidavit justifying this stand.
16. There appears to be no reasonable classification based on any rationale or intelligible differentia, whereby students who passed a particular course from DIET are to be considered for appointment to the post of Primary Teacher of MCD and other students who passed from other institutes, although duly recognised, are to be excluded. The appointment with MCD is appointment to a Public Office and MCD has to treat equally in the matter of public appointment of all such persons. Whether a candidate passes a particular course from the institute or the other institute, when both the recognised is on equal footing and pertains to same class. Article 14 of the Constitution forbids class legislation. The categorisation of the candidates in two classes, one who are passing the course from DIET and other passing the course from other institutes is clearly arbitrary and discriminatory and does not pass the test of permissible lassification. It is now well settled that to pass the test of permissible classification two conditions must be fulfillled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the Group and (ii), that the classification must have a rational relation to the object sought to be achieved by the statute in question. Candidates of both the categories form one class for the purpose of seeking appointment and they have right to be considered for the same. In fact, considering the candidates who passed a particular course from DIET and excluding those who passed from other recognised institutions amounts to irrational classification and also amounts to depriving such candidates, who passed their course from institutes other than DIET, right to be considered for public appointment and is, therefore, violative of Article 16 of the Constitution as well.
17. In fact, creating two categories (i) who passed ETE course from DIET and others who passed similar course from other institution amounts to creating artificial categories and it over emphasis the Doctrine of Classification. In Mrs. Maneka Gandhi Vs. Union of India and another Hon'ble the Supreme Court held that the Doctrine of Classification is only a subsidiary rule evolved by the courts to give practical content to the doctrine of equality, overemphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equality enshrined in Article 14 of the Constitution. The overemphasis on classification would inevitably result in substitution of the doctrine of classification to the doctrine of quality and the Preamble of the Constitution which is an integral part and scheme of the Constitution.
18. Relying upon the aforesaid judgment, Hon'ble Supreme Court in LIC of India and another Vs. Consumer Education and Research Centre and others held that the term policy by the Life Insurance Corporation confining to only salaried class from Govt., Semi Govt. or reputed commercial firms is discriminatory offending Article 14 and denial thereof to larger segments violates their constitutional rights. It would be apt to quote the following passage from this judgment which equally applies in the present case:
"The over-emphasis on classification would inevitably would result in substitution of the doctrine of classification to the doctrine of equality and the Preamble of the Constitution which is an integral part and scheme of the Constitution. Menaka Gandhi ratio extricated it from this moribund and put its elasticity for egalitarian path finder. Lest, the classification would deny equality to the larger segments of the society. The classification based on employment in Government, semi-government and reputed commercial firms has the insidious and inevitable effect of excluding lives in vast rural and urban areas engaged in unorganized or self-employed sectors to have Life Insurance offending Article 14 of the Constitution and socio-economic justice."
19. It is a matter of common knowledge that JMI University is created by the Act of Parliament. It is also noticed that is DBT/ETE course is recgonised by NCTE. NCTE is a statutory body created under NCTE Act for the purpose of granting such recognition. Once a course is recognised by NCTE under Section 14(3)(a) of the NCTE Act, the students who passed the said course cannot be deprived of appointments to public post.
20. Therefore, I hold that action of the respondents 1 and 2 in considering the applications of only those candidates who passed ETE course from DIETs run by SCERT and excluding candidates who passed similar course from other recognised institutions is discriminatory and, therefore, bad in law.
21. I may state here that in CWP. No. 4688/98 the petitioners are the persons who passed this course from Lovely and Ramakrishna Training Institutes recognised by NCTE. Mr. Rajinder Dutt, advocate for petitioners in this writ petition has pointed out that the course of ETE run by Lovely and Ramakrishna Training Institute is recognised by Directorate of Education, Govt. of NCT of Delhi. This position is not disputed by respondents. He further submits that the nomenclature given to the course of these institutions of JBT and even in the letter dated 14.5.98 of respondent No.1 to respondent No. 2, this course is mentioned along with ETE and, therefore, both are equivalent. Even this position is not disputed by the counsel for respondent No. 2. Therefore, petitioners in this petition are similarly situated as the petitioner who have passed DBT from JMI University.
22. Accordingly, all these petitions are allowed. It may be stated that by interim orders in these petitions MCD was directed to keep as many number of posts vacant as the number of petitioners in these petitions. Therefore, these posts are available with the MCD. MCD is directed to process the applications of these petitioners submitted pursuant to advertisement dated 11.6.98 and consider the cases of these petitioners for appointment to the post of Primary Teachers in MCD schools. Since MCD has made about two thousand appointments already who may have joined already pursuant to such appointment, it would be appropriate that process in respect of petitioners cases be also completed expeditiously and in any case within three months from today.
23. No orders as to costs.