Miss Asha Rani vs Municipal Corporation Of Delhi ...
1999 Latest Caselaw 637 Del

JUDGMENT

A.K. Sikri, J.

1. The case of the petitioner in this writ petition is that she applied for post of Primary Teacher with Municipal Corporation of Delhi (MCD)/Respondent No. 1 pursuant to the advertisement in the month of July 1996, by the MCD inviting applications for various posts of teachers including Primary Teachers. She further states that in December, 1996 first list of successful candidates as per merit was released by the MCD and second list was released in December 1997. In the second list the name of the petitioner was shown. Thereafter, petitioner was called on 19.1.98 for verification of original documents, photocopies of which she had annexed with the application. At the time of verification her candidature was rejected alleging that her name had wrongly appeared in the second list.

2. Petitioner has challenged this action of the MCD as illegal and had contended that MCD confused the scheme of total marks obtained for the purposes of computation for the percentage of marks as adopted by Central Board of Secondary Education (CBSE) in the year 1989 whereunder the petitioner is covered. The scheme went up to 1990. After 1990 CBSE adopted a new scheme for the purposes of computation of percentage of marks obtained by a student. According to the petitioner, the percentage of marks obtained in the Senior Secondary School Examination up to 1990 was computed on the basis of marks obtained in one language and 3 best subjects whereas in the scheme adopted from the year 1990 the marks obtained in one language and 4 best subjects are to be taken into consideration to ascertain the percentage of marks obtained by a candidate. She says that as she passed out CBSE Examination in the year 1989, in her case marks obtained in 4 subjects were to be taken into consideration. On this basis the marks obtained should be 247 out of 400. However, MCD has taken the marks of 5 subjects instead of 4 and, therefore, the percentage of marks has come down.

3. The petitioner has produced the marks sheet as per which her marks in different subjects as under:

Subject

Max Marks

Marks Obtained

1.

Sanskrit (Core)

2.

Hindi (Elec.)

3.

History

4.

Pol. Science

5.

Home Science

6.

S.U.P.W.

A-2

7.

English (Core)

4. As per the aforesaid marks sheet, if 4 best subjects are taken into consideration, the petitioner's marks are 247 out of 400 (i.e. 61.75%) and if, 5 subjects are to be taken into consideration then her marks would be 58%.

5. The petitioner has further referred to the selection procedure circulated by MCD vide Public Notice as per which computation of grading for appointment was to be done on the basis of marks obtained in the 10th, 12th or 11th and Education Training Examination in the following manner:

Percentage of Marks

Inter or same

Inter SSC or equal

higher secondly

JBT ETE/ NIT

BA/LT Same

1.

Less than 50%

2.

Less than 60%

3.

Less than 75%

4.

More than 75%

5. It is the case of the petitioner that she had obtained less than 50% marks in 10th and JBT for which she was given 15 and 18 marks respectively. However, if her marks in 12th are taken as 61.75% i.e. more than 60%, she is entitled to 30 marks for CBSE examination. Instead by taking these marks at 58%, the respondents have awarded 25 marks for this examination. Thus according to her she was entitled to 63 marks (15+30+18) but she is given 58 marks (15+25+18). In case she is given 63 marks then she gets selected but in case her marks are 58 then she is rejected for appointment.

6. Therefore, the question to be decided in this case as to whether the action of the MCD in calculating the marks of her CBSE examination on the basis of 5 papers is correct or whether it should be computed on the basis of 4 papers as contended by the petitioner.

7. As noted above, the basis on which the petitioner contends that her marks in 4 subjects should be taken into consideration is based on system adopted by CBSE up to the year 1989. However, this basis adopted by CBSE cannot bind MCD for the purposes of making appointments in as much as the MCD has right to fix its own criteria/method for making the appointments. This would be a policy decision of the MCD. MCD has filed counter-affidavit in which it is explained that for the purpose of selection of Primary Teachers in MCD, it had followed a uniform policy by taking aggregated of 5 subjects into account for the purposes of calculating the percentage of marks obtained at Senior Secondary level, It would be relevant to quote the following averments made by the MCD in the counter-affidavit.

"The aggregated of five subjects has been taken into account for the purpose of calculating the percentage of marks obtained at Senior Secondary Level. Being a policy matter this criteria had been applied uniformly and without any distinction whatsoever to all candidates who applied for the post of Primary Teacher for the selection. It is further submitted that on 24.1.98 the MCD published an advertisement in the leading newspaper inviting objections from candidates just to correct any error in the selection process. The note contained in the said advertisement reads as under :

'The percentage in the 10+2/Intermediate/Senior Secondary have been calculated in the five subjects..." Therefore, the Note contained in the said advertisement clearly mentioned that the percentage in the 10+2/Intermediate/Senior Secondary have been calculated in the five subjects." The said advertisement is enclosed as an Annexure-A.

It is further submitted that an identical case bearing CWP No. 549/98 was dismissed by Hon'ble Mr. Justice K. Ramamoorthy in the matter of Sunita Gupta. A copy whereof is annexed herewith an Annexure-B.

Furthermore, it is stated that for the post of about 3000 Primary Teachers there were about 50000 Applications, therefore, the MCD for selection of teachers from large number of Applications adopted uniform, fair, rational, non-arbitrary, non-discriminatory, lawful and valid policy. The petitioner, therefore, is not maintainable and liable to be dismissed. It is however, stated that any scheme of CBSE is neither relevant nor binding on Answering Respondent for the purposes of selection in question."

8. CBSE/Respondent No. 2 has also filed the affidavit and has taken the stand that function of the CBSE is to conduct the examination and fix a particular criteria for declaring a student as successful. In so far as employment by any authority is concerned, it is for the concerned authority to lay down any rationale or reasonable criteria with a view to avoid any discrimination.

9. In view of the aforesaid stand taken by the respondent-MCD there appears to be no force in the arguments of the petitioner. Morley because a particular criteria was laid down by CBSE for declaring a student as pass till the year 1989 (i.e. taking into consideration aggregate of 4 papers) which changed in the year 1990 (by taking aggregate of 5 papers), the petitioner cannot contend that MCD also should apply same criteria for making appointments to the post of Primary Teachers and, therefore, should necessarily take into consideration marks obtained by the petitioner in 4 subjects and not in 5 subjects.

10. As pointed out above, MCD has adopted uniform procedure for taking into consideration the marks obtained in the 5 subjects. This is applied in respect of all candidates who applied for the post. This being a policy decision of the MCD, in the absence of any mala fides or arbitrariness, this Court has not to interfere with such policy decision of the respondent. The Supreme Court has constantly taken the view that the Court hardly interferes with the matters of policy of the Government. In Union of India and Ors. v. S.L Dutta and Anr., after noticing dicta in number of judgments, the Supreme Court has upheld the change in policy relating to promotional chances of officers in Navigation Stream in Flying Branch of Air Force. In the case of State of Andhra Pradesh and Anr. v. Sadanandam and Ors. etc. , the Supreme Court held that choosing of mode of recruitment is a matter of policy decision which falls exclusively within purview of executive and Courts are not to interfere with the same unless it is arbitrary or discriminatory.

11. Mr. Raman Duggal, counsel for the MCD has pointed out that this system of calculating the marks on the basis of 5 subjects is upheld by this Court in its judgment dated 22.9.88 in CWP. No. 549/98. A copy of the judgment is annexed as Annexure-3 to the counter-affidavit. Following observations of the judgment would be worth quoting:

"The MCD had stated that the percentage in the 10+2 and senior secondary had been calculated in five subjects. The MCD, as a matter of policy, had taken the decision and applied without any distinction whatsoever to all candidates who applied for selection. Therefore, when the MCD for the purpose of selecting the teachers from a large number candidates had to involve its own policy. That policy decision cannot be challenged by the petitioner unless it is shown to be irrational or illegal. The only argument as I noticed was the University and Delhi Administration had followed different method, and the same, according to the petitioner, should be followed by the MCD. That argument would not make the policy decision taken by the MCD to be illegal or irrational. In view of this, I do not find any merit in the writ petition."

12. Accordingly, I find no merit in the writ petition. The same is dismissed. However, no orders as to costs.