Kavita & Others vs M.C.D.
2000 Latest Caselaw 127 Del

ORDER

A.K. Sikri, J.

1. The petitioner in this writ petition who are 32 in number have done their JBT/ETE Course from District Institute of Education and Training (for short "DIET"). It is the case of the petitioners that DIET was specially opened by the respondent-MCD to train and prepare the persons with Specialised Education Teachers for the Primary/Elementary Schools being run by MCD. It was the Policy of the respondent that all the students who qualified from DIETS would be absorbed as Primary School Teachers before the placements could be offered to candidated with basic for higher qualifications i.e. B.Ed., M.Ed. etc. The petitioners have done two years ETE Diploma course. They joined the course in 1996. Although in normal course they would have completed this course in the year 1998. However, in one or more papers, these petitioners could not qualify and, therefore, they appeared in supplementary examination conducted later on and qualified for Diploma Course in January, 1999. In fact there were more than 600 students which were admitted to this course in the year 1996. Others passed out in the year 1998 and these 32 petitioners had to appear in supplementary examination which they cleared and passed out in January, 1999 as aforesaid. The students who passed out in the year 1998 were given appointments as Primary School Teachers by the respondent at various schools run by it. However, as the respondent refused to absorb these 32 petitioners by giving them appointment as Primary School Teachers, petitioners have filed this writ petition with the following prayers :

"(a) To call for the records of the file/files of the respondents relating to the petitioners grievance/recruitment policy, and the recruitment policy of other teachers in Delhi.

(b) To direct the respondents to stop the new and unfair policy of recruitment of Primary School Teachers in the primary schools of Delhi being run by the respondent, unless the especially trained ETE/JBT, from the DIETS especially opened for this very purpose, have first been absorbed as Primary School Teachers in those schools, in accordance to their seniority.

(c) To direct the respondent to formulate and abide by the existing policy in regard the recruitment of Primary School Teachers i.e. primary teachers in the MCD Schools of Delhi, as they have been doing until date,keeping in mind, that the five DIETS have been opened for this very purpose and to recruit the petitioners with immediate effect.

(d) To issue any other order or directions which may be deemed fit and proper in the facts and circumstances of the case.

(e) To award costs of this petition".

2. Before appreciating aforesaid reliefs sought by the petitioners, it would be appropriate to give the details of certain other evelopments as the subsequent developments have bearing on the outcome of this case.

3. Prior to 1997 the various posts with MCD were used to be filled up by MCD itself. However, by amending Delhi Municipal Corporation Act, Section 92A was added and in terms of provision contained in this Section all recruitment to the posts of Group B and C are to be made by the Delhi Subordinate Services Selection Board (for short "the Board"). After the constitution of the "Board", it is this Board which has undertaken the duty of recruitment to various posts of Group B and C in MCD. In fact not only for MCD, this Board is undertaking this exercise of recruitment for other statutory bodies like NDMC, Directorate of Education etc. Accordingly, Board had written letter dated 8.8.97 informing the MCD about its constitution.

It was further stipulated in the said letter as under :

"The recruitment of Group 'B" & "C" posts may be ceased by your Department with immediate effect and all cases of recruitment including those in process may be forwarded to the Board for further action".

4. It was further mentioned in the letter that a meeting was to be held on 22-8-1997 in which following points were to be discussed :

"I The vacancy position in your organisation to be filled by the Board.

II. To provide the recruitment rules of all Group 'B' & 'C' posts of your organisation.

III. Mode of recruitment to be adopted for various categories of posts.

IV. Nomination of a Liaison Officer from your Organisation.

V. Any other item with the permission of Chair".

5. It is a matter of record that thereafter an advertisement was issued by the Board notifying number of vacancies of Primary Teachers/Assistant Teachers in MCD Schools by the Board and recruitment thereafter has been made by the Board pursuant to the aforesaid advertisement.

6. It appears that as far as recruiting Primary Schools Teachers from amongst the candidates of DIETS' MCD had asked for permission to do so directly without notifying the vacancies to the Board to the extent of availability of such candidates. This permission was granted and it is because of this reason that notwithstanding the provision contained in Section 92A whereby Board had to make such recruitments, the MCD was per-

mitted to appoint the candidates of DIETS i.e. who had done JBT/ETE from DIETS. In this way appointments were made in 1998 from amongst those successful candidates who had passed two years ETE course in 1998. But these petitioners who had not completed the course by that time as they failed in one or more subjects could not be appointed. However, thereafter the matter was considered and it was decided that MCD would not make such appointments. Advertisement was issued by the Board on 11th June, 1998 for recruitment to these posts. Ultimately by letter dated 30.7.1999 Government of NCT of Delhi informed Commissioner, MCD that it was decided to withdraw the exemption given to MCD regarding recruitment to the Primary School Teachers. The relevant portion of this letter reads as under:

"The matter of above stated exemption has been reviewed and since the said qualification can also be obtained from institutes other than DIET, this exemption will result in unfair advantage to the candidates of SCERT over other candidates who otherwise have similar qualifications. This not only would defeat the motive of this Govt. of fair recruitment but also violate constitutional provisions of equal opportunity.

It has, therefore, been decided to withdraw the exemption given to MCD regarding recruitment to the Primary School Teachers in the aforesaid letter with immediate effect. Accordingly, MCD shall henceforth notify all the vacancies of Primary Teachers to the Delhi Subordinate Services Selection Board (DSSSB)".

7. On the basis of aforesaid factors, it was contended by Mr. Rajiv Nayyar, learned senior counsel appearing for the petitioners that admittedly upto the year 1997 those candidates who passed JBT/ETE course from DIETS used to be absorbed straightway by MCD as Primary School Teachers. Between 1997 and 1999 the position was that although Board had been constituted, the relaxation was given in respect of the appointments of DIETS candidates without notifying the vacancies to the Board as Primary Teachers in MCD Schools. It is only by letter dated 30.7.1999 that the exemption is withdrawn by the Delhi Government. Thus, according to Mr. Nayyar the petitioners who belong to the period when there was an exemption available to MCD should be given appointment without notifying the vacancies to the Board as was done in respect of their batch mates in the year 1998. It was argued that it is only these 32 petitioners who are left out and all other belonging to the petitioners batch are given the appointments by MCD to the posts of Primary School Teachers in terms of exemption given by the Delhi Government. Reliance was placed on certificates issued to the petitioners as per which the petitioners have passed two years Diploma Course 1996-98 from DIET and thus, according to learned Senior Counsel they belong to 1996-98 batch, even if they have completed this course in the year 1999 as they had to appear in supplementary examination in those papers in which they failed earlier. Thus, according to him when they belong to the same batch which passed out in 1998 and all others given the appointments, denying the same to the petitioners would be improper, arbitrary and discriminatory. It was further submitted that the exemption given to MCD by allowing MCD to make the appointments from amongst the candidates of DIETS without notifying the vacancies to the Board was withdrawn only on 30.7.99 as per letter dated 30.7.99 extracted above. These petitioners had admittedly completed their course in January, 1999 and as on January, 1999 the scheme providing xemption to MCD was very much in existence and, therefore, the cases of the petitioners are to be considered as per the scheme in operation at that time and on this ground also petitioners would be entitled to the appointment as Primary School Teachers in MCD straightway as was done by MCD not only in 1998 but earlier also.

8. Mr. Raman Duggal, learned counsel appearing for the Board countered the aforesaid arguments of the petitioners by submitting the following propositions:

A. Petitioners were not eligible in 1998 when the exemption was sought, and they cleared the examination in the year 1999 only. However, by that time the vacancies position was given to the Board and Board had already advertised these vacancies by advertisement dated 11.6.1998. Thus from this date there are no posts available with MCD which can be filled up by MCD directly and it is the function of the Board only to make these recruitments.

B. The MCD Act was amended by inserting Section 92A as per which it is the statutory function of the Board to make these recruitments. Although exemption was given to the MCD to recruit Primary School Teachers from amongst the candidates of DIETS and, therefore, exercise was once done in the year 1998, it was ultimately found that the same was not proper inasmuch as making of such appointments by MCD was contrary to the statutory provisions contained in Section 92A of the MCD Act. It was also observed that giving preferential treatment to the students doing courses from DIET and ignoring the candidates who obtained necessary qualification from other institutes is unfair advantage to the candidates of DIETS. This also violates constitutional provisions of equal opportunity. Thus since the exercise done in the year 1998 was found to be arbitrary, it was stopped and, thereafter the vacancies were notified to the Board and it is the Board only which has assumed the function and on the basis of advertisement issued in the year 1998, made the recruitments in the year 1999 and only those candidates selected by the Board have been appointed as Primary School Teachers in MCD Schools.

C. Finding that the exemption given to MCD was not in order from legal angle, the same was withdrawn by letter dated 30.7.1999. No right has been accrued to the petitioners and it cannot be said that the petitioners should be appointed notwithstanding aforesaid legal position. Mandamus sought by the petitioners, if granted would go contrary to statutory provisions contained in Section 92A of the MCD Act as well as Articles 14 and 16 of the Constitution of India.

9. It would be appropriate, before dealing with the aforesaid respective contentions to summarise the factual position which emerges on the basis of the narrations of facts made above.

10. SCERT had opened DIETS to train and prepare with specialised education which train and develop qualified Primary Teachers for the Primary Schools run by the respondent-MCD. Over a period of time many Schools of DIETS were started in Delhi and these centres are imparting two years Diploma Course of ETE/JBT. Normally after the students clear the aforesaid Diploma Course they used to be appointed as Primary Teachers in various Schools run by MCD. However, over a period of time many other Private Institutes also came to be established and these institutes also started Diploma Courses in ETE/JBT or equivalent which were duly recognised by SCERT. Thus with the establishment of such institutes, it is not only the DIETS run by SCERT who were imparting aforesaid courses. Thus candidates for appointment to the post of Primary School Teachers in MCD run School, became available not only from DIETS centres but also other such institutions as well. Another development took place in the meantime. Section 92A was inserted by amendment in the MCD Act in the year 1996 as per which recruitment to Group B and C posts in MCD could be only by the Board and MCD right to make these appointments ceases to exist. Thus these two development were significant concerning the right of the appointment of candidates passing out from DIETS and by MCD directly. The factual and legal position which emerged in 1997 was, therefore, as follows :

1. For appointment to the post of Primary Teachers in MCD Schools, candidates were available not only from DIETS but also from other institutes.

2. MCD could not make the recruitment which job was handed over to the Board.

11. The inevitable conclusion is that MCD could not recruit Primary Teachers in its Schools from amongst those passing from DIETS only. Field of choice became wider and it was for the Board to make the appointment after considering all those candidates who apply for the post whether they had passed their Diploma Courses from DIETS or from other Institutes duly recognised by SCERT. In fact, as noticed above, after the Board was constituted, it took up the responsibility for making the recruitment and first advertisement in this respect was issued on 11.6.98. Although, as per this advertisement applications were invited from candidates who had passed ETE course from DIET or other institutions recognised by SCERT, the candidates belonging to other institutions who had applied pursuant to the advertisement were ignored and their candidature was not considered for appointment. This led to filing of various petitions by such candidates in this Court and all these petitions were disposed of by me by a common judgment dated 29.7.99 with lead case being CWP No. 3464/98 entitled Ashik Abbas and Others Vs. Govt. of National Capital Territory of Delhi and Other 1999 V AD. (Delhi) 74. While holding that the petitioners who had done their Diploma Course from other institutions duly recognised by SCERT had also right to be considered, I noted as under :

13. "Moreover as pointed out above, even vide letter dated 17.6.1998 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 applications of those Jamia Milia Students who fulfill conditions of your advertisement dated 11.6.1998.

14. 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 DIETS 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".

12. Apart from examining the position on the basis of advertisement issued by the Board itself and holding that in terms of the said advertisement itself such candidates were entitled to be considered for appointment as Primary Teachers in MCD Schools, I also considered the question as to whether exclusion of these candidates who passed the course from other institutions although recognised and consideration of those candidates who passed ETE Course from DIET only would be arbitrary or violative of Articles 14 and 16 of the Constitution of India and held as under:

15. 2. "Even otherwise stand of the respondents 1 and 2 to consider the candidates who passed ETE course from DIETS 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 DIETS 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 10.3.1998 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 DIETS 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 years 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 an 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 candidates passes a particular course from one institute or the other institute, when both are 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 or permissible classification. 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 other 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 purposes 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 passes their course from institutes other than DIET, right to be considered for public appoint ment 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, over-emphasize 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 over-emphasize on classification would inevitably 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.

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 terms 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 denied 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. Maneka 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 ocio-economic justice."

13. In the backdrop of this legal position when we examine the contention of the petitioners in this writ petition, it is clear that there is no merit in the same. The argument of the petitioners that even after Section 92A was inserted by way of amendment relaxation was given authorising MCD to fillup the existing posts from amongst DIETS candidates only was clearly arbitrary being violative of Articles 14 and 16 of the Constitution as well as contrary to the statutory provisions, namely, Section 92A of the MCD Act inasmuch as after this Section MCD ceased to have any power to make appointment to the Group B and C posts of the MCD which is now the function of the Board. Thus issuance of any mandamus continuing such an exemption and authorising MCD to make such appointments directly that too only from amongst DIETS candidates, namely, the petitioners would clearly be a direction against the provisions of statute as well as the Constitution. Such a mandamus which goes contrary to the statute and Constitutional provisions cannot be given. If under the relaxation given by letter dated 14.5.98, some appointments were made and these appointments were not proper, petitioners cannot take shelter of such a wrong act done and claim that this wrong should be perpetuated by appointing them also. In fact realising this position, the matter was examined and relaxation given by letter dated 14.5.98 was withdrawn by the NCT of Delhi itself as is clear from letter dated 30.7.99. It cannot be said that the petitioners should be given the benefit as such relaxation was prevailing upto 30.7.99 particularly when the relaxation was withdrawn after realising that the relaxation given was illegal and against the provisions of Constitution as amounting to negation of equality. Moreover, one cannot loose sight of the fact that exemption may have been formerly withdrawn on 30.7.99 by this letter but after the appointments made by MCD from DIETS candidates pursuant to letter dated 14.5.98, no further action is taken by MCD and in fact immediately after the appointments made in 1998, the Board had taken over the task to fill even these posts for which advertisement was issued as far back as on 11.6.98. Thus after 11.6.98 it is the Board which is discharging its statutory duty. The vacancies were notified by MCD to the Board and as on today MCD is not having any vacancies which it can fill on its own. On this ground also no relief can be given to the petitioners. Even if the exemption was given to the MCD erroneously and MCD made the appointments which may be irregular, the said irregularity cannot be perpetuated and mandamus issued would be against the provisions of the statute or the constitution. Law on this point is well-settled by catena of judgments of the Apex Court. One may usefully refer to the following observations of Supreme Court in the case of I.C.A.R. Vs. T.K. Suryanarayana , the relevant portion of which reads as under :

"8. We are, however, unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claims for promotion contrary to the statutory Service Rules in law courts. Incorrect promotion either given erroneously by the department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory Service Rules. In a court of law, employees cannot be permitted to contend that the Service Rules made effective of 1st October, 1975 should not be adhered to because in some cases erroneous promotions had been given".

14. It may not be out of place to observe that petitioner right to be considered for appointment has been taken away. The petitioners after doing the Diploma Course in ETE etc. have become eligible for appointment to the post of Primary Teachers. The only consequence is that they have to compete with others for such appointment. There is nothing wrong in this. It has been emphasised by the Apex Court time and again that the Government or Government authorities while making appointments to public offices should recruit best available persons on the basis of merit. Competition is healthy phenomenon and improves the performance and talent of a person. Right of others to be considered for the appointment to public office cannot be denied by giving appointment to the petitioner straightaway. If the petitioners are meritorious enough, they can always make their mark and get appointment to the post of Primary Teacher.

15. Thus from any angle the matter is to be looked into, this petition has to fail, being without any merit. Rule is discharged. The writ petition is, accordingly, dismissed

16. No order as to costs.