* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4512/2014 & CM APPL.8986-88/2014
Decided on : 23.07.2014
IN THE MATTER OF
SHAHIN RUSTAM AND ANR ..... Petitioners
Through Mr.Sanjay Sharawat and
Mr.Ankit Gyan and Mr.Ratish Kumar,
Advocates
versus
INDIRA GANDHI NATIONAL OPEN UNIVERSITY AND ORS
..... Respondents
Through Mr.Aly Mirza, Advocate for R-1/IGNOU
Mr.R.N.Singh & A.S.Singh, Advocates for
R-5/SDMC
Ms.Zubeda Begum, Standing Counsel with
Ms.Sana Ansari, Advocate for R-6/DSSSB
Mr.Hemant Gupta and Mr.Atul Jain,
Advocates for R-7/UOI
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (ORAL)
1. The present petition has been filed by the petitioners praying inter alia that the decision taken by the respondent No.3/NCTE, in terms of the letter dated 11.2.2014 (Annexure P-10), holding inter alia that the respondent No.2/MANUU has not been granted recognition for conducting DPE Course under Distance Mode, be quashed. Further, the petitioners seek a declaration to the effect that the course of W.P.(C) 4512/2014 Page 1 of 12 Diploma in Primary Education(DPE) conducted by the respondent No.1/IGNOU and respondent No.2/MANUU in collaboration with each other for the Academic Session 2006-08, is duly recognized by the respondent No.3/NCTE and the respondent No.4/NRC. Lastly, the petitioners seek issuance of a writ of certiorari, quashing the notice dated 1.3.2014 issued by the respondent No.6/DSSSB, rejecting their candidature to the post of Teacher(Primary Urdu) on the ground that their educational qualifications are not as per the Recruitment Rules provided by the user department.
2. Counsel for the petitioners submits that the respondent No.1/IGNOU had entered into agreements with the respondent No.2/MANUU for offering joint programmes and diploma programmes and had started a teachers' training course called Diploma in Primary Education (DPE) in Urdu medium for the Academic Session 2006-08. Both the petitioners took admission in the said course and were awarded certificates jointly by the respondent No.1/IGNOU and the respondent No.2/MANUU. Thereafter, in the year 2009, the respondent No.6/DSSSB had issued an advertisement inviting applications for appointment to various posts in Govt. of NCT of Delhi. The petitioners submitted their applications for being appointed to the post of Teacher W.P.(C) 4512/2014 Page 2 of 12 (Primary Urdu) in the MCD, now respondent No.5/SDMC. In April, 2013, the written examinations were conducted by the respondent No.6/DSSSB. By the impugned rejection notice dated 1.3.2014, issued by the respondent No.6/DSSSB, the candidature of the petitioners were declared as ineligible for the post of Teacher (Primary Urdu) on the ground that they did not possess the educational qualification as per the Recruitment Rules provided by the user department.
3. The petitioners are also aggrieved by the letter dated 11.2.2014 addressed by the respondent No.3/NCTE to the respondent No.5/SDMC informing the latter that the respondent No.2/MANUU had not been granted recognition by the Northern Regional Committee of the respondent No.3/NCTE for conducting DPE course under distance mode.
4. As the Registry has raised an objection with regard to the maintainability of the present petition in the High Court, learned counsel for the petitioners has been requested to address the Court on that aspect.
W.P.(C) 4512/2014 Page 3 of 12
5. It is not denied by the counsel for the petitioners that in the present case, the user agency, namely, respondent No.5/SDMC, has been duly notified under the Administrative Tribunals Act, 1985 (in short 'the Act'), but he submits that the petitioners have approached the High Court directly for the reason that the primary relief is directed against the respondent No.3/NCTE and since the reliefs prayed for cannot be segregated, the present petition is maintainable directly in the High Court, without first approaching the Central Administrative Tribunal.
6. The aforesaid submission is however disputed by the learned counsels appearing for the respondent No.5/SDMC and respondent No.6/DSSSB, who refer to the judgment of the Constitution Bench of the Supreme Court in the case of L.Chandra Kumar Vs. Union of India & Others reported as (1997) 3 SCC 261, to contend that the Central Administrative Tribunals created under Article 323-A and Article 323-B of the Constitution of India are competent to entertain such a petition, particularly since the user agency has been notified under the Act. Reference is also made to a decision dated 28.7.2011 in LPA No.606/2011, entitled "Delhi Subordinate Services Selection Board and Anr. Vs. Shika Arora to urge that in the first instance, the present W.P.(C) 4512/2014 Page 4 of 12 petition ought to have been filed before the Tribunal.
7. It may be noted that the Act is a self-contained Code. The Tribunals that have been constituted in terms of Article 323(A) & Article 323(b) of the Constitution of India, have the requisite jurisdiction to determine all service disputes, including the vires of statutes or statutory rules. In view of the fact that judicial review is one of the basic features of the Constitution of India, the Supreme Court had held in the case of L. Chandra Kumar (supra) that the High Court and the Supreme Court shall have the power of judicial review over the decision of the Tribunal and had elaborated the said opinion in the following manner: -
"93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a W.P.(C) 4512/2014 Page 5 of 12 Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned."
(emphasis added) Thus, it was clarified that a cause of action that had arisen subsequent to the decision in the case of L. Chandra Kumar (supra), shall have to be agitated before the Tribunal in the first instance and the jurisdiction of the Division Bench of the concerned High Court under Article 226 of the Constitution of India can be invoked only after approaching the Tribunal and obtaining a decision from it.
8. In the case of Shika Arora (supra), the respondent therein was seeking appointment to the post of Assistant Teacher (Primary) in the Directorate of Education, Govt. of NCT of Delhi. By relying on the decision in the case of L. Chandra Kumar (supra), the Division Bench W.P.(C) 4512/2014 Page 6 of 12 had held that the Single Judge ought not to have entertained the writ petition filed by the respondent in the first instance. The Division Bench had rejected the plea of the respondent therein that the DSSSB is not covered under Section 14(1) of the Act and therefore the Tribunal does not have any jurisdiction and observed that DSSSB is only a recruiting agency and under Section 3 read with Section 14(1) of the Act, it is the "post" that matters and determines the jurisdiction, and not the recruiting agency.
9. In the present case, the petitioners are seeking appointment to the post of Primary (Teacher Urdu) with the respondent No.5/SDMC, which is the user agency and stands duly notified under the Act. Counsel for the petitioners submits that by virtue of the first two reliefs set out in the prayer clause of the petition, directions have been sought to the respondent No.3/NCTE to recognize the course of Diploma in Primary Education conducted by the respondent No.1/IGNOU for the Academic Session 2006-08, and the third relief for quashing the impugned rejection notice dated 1.3.2014 issued by the respondent No.6/DSSB is only consequential in nature.
10. In view of the stand of the counsel for the petitioners that the petitioners are not aggrieved by the action of the respondent No.6/DSSSB in issuing the rejection notice, but they are primarily W.P.(C) 4512/2014 Page 7 of 12 aggrieved by the failure on the part of the respondent No.3/NCTE to recognize the subject course conducted jointly by the respondent No.1/IGNOU and the respondent No.2/MANUU, he has been asked if the petitioners are willing to delete the third relief and confine the prayer in the present petition to the first two reliefs so that the Registry can be directed to place the same before the appropriate Bench dealing with education matters as per roster. However, Mr.Sharawat, learned Advocate does not wish to exercise the said option and insists that if prayers (a) & (b) can be granted by the High Court, then the relief prayed for in clause (c) for quashing the rejection notice dated 01.03.2014 issued by the respondent No.6/DSSSB shall automatically follow and therefore, the petition, as filed in this Court for seeking all the three reliefs, ought to be decided by this Court. In support of his submission that prayer (c) is an ancillary relief that is claimed by the petitioners and the present petition as filed is maintainable in this Court, learned counsel relies on the decision of the Supreme Court in the case of Kalipindi Appala Narasamma vs. Alla Nageshwara Rao (Dead) through LRs & Ors., reported as (2008) 10 SCC 107.
W.P.(C) 4512/2014 Page 8 of 12
11. This Court that is exclusively dealing with service matters, as per roster, is not inclined to accept the submission made by the counsel for the petitioners and entertain the present petition as filed, directly. The decision of the Supreme Court in the case of L. Chandra Kumar(supra) on this aspect is clear. The petitioners are seeking appointment with the respondent No.5/SDMC and under the Act, the same is required to be dealt with the Central Administrative Tribunal, Principal Bench at Delhi. It is not open for the petitioners to by-pass the jurisdiction of the Tribunal and directly approach a Single Bench of the High Court. If they are of the opinion that the first two reliefs cannot be granted by the Tribunal and have to be raised in a petition for adjudication by the High Court, then it is for them to give up the third relief and confine the said petition to the issuance of directions to the respondents No.3 & 4 for granting recognition to the course of Diploma in Primary Education conducted jointly by the respondent No.1/IGNOU and the respondent No.2/MANUU. The submission made by learned counsel for the petitioners that the writ petition as filed, ought to be entertained directly in the High Court, is therefore turned down.
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12. Reliance placed by learned counsel for the petitioners on the case of Kalipindi Apala Narasamma (supra), is also found to be misplaced as in the aforesaid case, the Supreme Court was examining the aspect of maintainability of a civil suit in the light of the reliefs prayed for by the appellant/plaintiff therein that included the relief of declaration of title, damages, mesne profits, recovery of possession, etc. After examining the manner in which the prayer clauses were worded, the Supreme Court had opined that the civil suit filed by the appellant/plaintiff was in substance, a suit for declaration of title and recovery of possession and was maintainable before the civil court and that merely because for the relief of recovery of possession, a special Tribunal could be approached, would not oust the civil jurisdiction of the trial court.
13. In the present case, as discussed in the case of L. Chandra Kumar(supra), the jurisdiction of the High Court under Article 226 of the Constitution of India has not been completely ousted. The only fetter imposed on the said discretion is that in the first instance, the litigants shall approach the Tribunal that will continue to act like courts of first instance in respect of areas of law for which they have been constituted and only after a decision is taken by the Tribunal, can they approach the Division Bench of the High Court within whose W.P.(C) 4512/2014 Page 10 of 12 jurisdiction the Tribunal falls. Further, if aggrieved by the decision of the Division Bench of the concerned High Court, the aggrieved party can move the Supreme Court under Article 196 of the Constitution of India.
14. The claim of the petitioners herein that the third relief, which is for quashing of the rejection notice dated 1.3.2014 issued by the respondent No.6/DSSSB and is only a consequential relief and cannot be segregated, is unacceptable. As the eligibility criteria stands today, the petitioners do not possess the educational qualification for the posts in question. It is for the petitioners to first overcome the hurdle of grant of recognition to the subject course undertaken by them and only upon being held eligible for seeking appointment to the post of Teacher(Primary Urdu) with the respondent No.5/SDMC, would they be in a position to challenge the rejection notice dated 1.3.2014 issued by the respondent No.6/DSSSB. Therefore, at this stage, clubbing all the reliefs in one petition is not an option that is available to the petitioners.
15. In view of the aforesaid observation, this Court declines to entertain the present petition as filed, which is disposed of with liberty granted to the petitioners to either file a writ petition in the High Court for seeking appropriate directions to the respondent No.3/NCTE W.P.(C) 4512/2014 Page 11 of 12 and respondent No.4/NRC to grant recognition to the Diploma in the Primary Education course conducted jointly by the respondent No.1/IGNOU and respondent No.2/MANUU, or, in the alternative, to file an original application before the Tribunal, as may be advised. 16 The writ petition is disposed of, along with the pending applications.
(HIMA KOHLI) JUDGE JULY 23, 2014 mk/sk W.P.(C) 4512/2014 Page 12 of 12