Rakesh Sharma And Ors. vs National Capital Territory Of ...
2006 Latest Caselaw 1646 Del

JUDGMENT

J.M. Malik, J.

Page 3041

1. This order shall decide the above said applications moved by all the petitioners in their respective writ petitions as the common questions of facts and Law are involved. The petitioners are aggrieved by the amendment which has changed the age pattern of candidates for recruitment as Primary Assistant Teachers. The petitioners are the holders of diploma course in Elementary Teacher Education (to be referred as ETE henceforth). It is explained that respondent No. 2, State Council of Education Research and Training, is conducting a two year diploma course in ETE. The qualifications for seeking admission to ETE course are Senior Secondary Examination i.e. 10 + 2 of CBSE, Delhi or its equivalent examination of any other recognized Board, University, from the Schools of National Capital Territory of Delhi only, the candidates are required to secure at least 50% marks in aggregate in Senior Secondary Examination and there is 5% relaxation for SC/ST and physically handicapped. Any person between the age of 17 years to 30 years can apply but there is relaxation in age in upper limit up to five years in the case of SC/ST and physically handicapped.

2. Previously, the upper age limit for the said post of Assistant Teacher (Primary) in case of male was below 32 years, in case of female it was below 42 years and for candidates belonging to SC/ST and physically handicapped there was relaxation of five years.

Page 3042

3. Delhi Subordinate Services Selection Board (DSSSB henceforth), respondent No. 3, published an advertisement for the post of Assistant Teacher (Primary) wherein the following essential qualifications were prescribed:

(I) Senior Secondary (10+2) or intermediate or its equivalent with 50% marks from a recognized Board.

(ii) Two years Diploma/Certificate course in ETE/ JBT or BEl,Ed. or equivalent from a recognized Institution.

(iii) Must have passed Hindi as a subject at secondary level.

Desirable - Computer Knowledge

Pay Scale 4500-125-7000

Age Limit 20-27 years (relaxable in case of SC/ST/OBC/PH/EXSM as per Govt. of India instructions issued from time to time).

All the petitioners have challenged the above said advertisement and have prayed to quash the above said requirements and direct the respondents that age limit of 20/27 years would not be applicable upon the petitioners, who, have already secured the diploma ETE from respondent No. 2, prior to the date of advertisement and are not more than 32 years in case of male and 42 years in case of female, on the ground that the above said age criteria should have been followed with prospective effect. It is also pointed out that amendment in age requirement should have first been carried out at the time of seeking diploma in ETE and not subsequently.

4. In their short affidavit, respondent No. 1 and 2 made the following averments.Directorate of Education vide its letter dated, 26.05.2006, sent requisition for 1204 posts of Assistant Teacher (Primary) to the Delhi Subordinate Services Selection Board for making recruitment on the basis of amended recruitment rules of Assistant Teacher (Primary) with the age limit of 20-27 years. Directorate of Education sent the proposal regarding amendment in Recruitment Rules to services department of Govt. of NCT Delhi, who is the Competent Authority in this context. The services department informed that age limit for the post of Assistant Teacher (Primary) is on the higher side and as per the Govt. of India norms, it should be 20 to 27 years being a Group C post. Consequently, the said age was reduced with the approval of the Honble L.G. of Delhi. Since, the Govt. school teachers are Govt. employees, they are guided by the same terms and conditions in the matter of age for appointment to a post as is applicable in respect of other Govt. employees as laid down by the Department of Personnel and Training, Govt. of India. The notification dated 01.11.1980 is not relevant as it refers to managing committee of the private schools. The main Directorate of Education is determined to provide quality education to Govt. school students as well as to uplift the standard of education in Govt. schools especially at primary level, which may not be achieved without the help of quality staff of teachers. It is further averred that in order to achieve this target, the Department with approval of Honble L.G. of Delhi, fixed the criteria of 50% marks at Senior Secondary level for recruitment of Assistant Teacher (Primary) so that it may get well qualified teachers and students of Govt. schools may not be deprived of quality education. The respondents are not Page 3043 bound to give an opportunity to each and every candidate who possesses the ETE Diploma and have crossed the upper age limit.

5. In its affidavit respondent No. 3 explained that DSSSB is the recruitment agency which processes the recruitment on the basis of requisition received from the user departments. It only forwards the dossiers of the selected candidates for appointments to the user departments. It is not the appointing authority. It is recognized that no Govt. order or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous in as much as it will deprive the security of tenure and the right of equality conferred on persons similarly situate. The gazetted rules having authority of law govern the recruitment process. It is explained that grant of stay at this stage shall jeopardize the selection process and interest of eligible candidates. The rules duly gazetted in Delhi Gazette on May 05-11, 2006 have not been challenged. The recruiting agency is bound by the Gazetted Rules sent along with the requisition. The advertisement having been issued in consonance with the statutory rules are binding upon the petitioners.

6. I have heard the counsel for the parties. The learned Counsel for the respondents vehemently argued that the petitioners have not challenged the rules. They have not made any request that the rules in question should be quashed. The attention of the court was drawn towards the fact that the respondents have to face a lot of criticism regarding the negligence and passivity on the part of the teachers. The old aged teachers do not impart good education and consequently students have to suffer. It was pointed out that the new amended rules would go a long way to take the edge off the criticism. The attention of the court was drawn towards an authority reported in V.K. Sood v. Secretary, Civil Aviation , in para 6 it was held :

6.Thus it would be clear that, in the exercise of the rule making power, the President or authorized person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State. The rules thus having been made in exercise of the power under proviso to Article 309 of the Constitution, being statutory cannot be impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law. The rules prescribed qualifications for eligibility and the suitability of the appellant would be tested by the Union Public Service Commission

7. The main question which falls for consideration is whether the amendment made is retrospective or prospective in nature ? The petitioners have not picked up a conflict with the amendment rule itself. Their only grouse is that the amended petition should be made effective prospectively. In this context, Page 3044 they have drawn my attention towards an authority reported in P. Mahendran v. State of Karnataka , wherein it was held in Paras 4 and 5 :

4.There is no dispute that under the Recruitment Rules as well as under the advertisement dated October 6, 1983 issued by the Public Service Commission, holders of Diploma in Mechanical Engineering were eligible for appointment to the post of Motor Vehicle Inspectors along with holders of Diploma in Automobile Engineering. On receipt of the applications from the candidates the Commission commenced the process of selection as it scrutinized the applications and issued letters for interview to the respective candidates. In fact the Commission commenced the interviews on August 1984 and it had almost completed the process of selection but the selection could not be completed on account of interim orders issued by the High Court at the instance of candidates seeking reservation for local candidates. The Commission completed the interviews of all the candidates and it finalized the list of selected candidates by June 2, 1987 and the result was published in the State Gazette on July 23, 1987. In addition to that the selected candidates were intimated by the Commission by separate letters. In view of these facts the sole question for consideration is as to whether the amendment made in the Rules on May 14, 1987 rendered the selection illegal. Admittedly the amending Rules do not contain any provision enforcing the amended Rules with retrospective effect. In the absence of any express provision contained in the amending Rules it must be held to be prospective in nature. The Rules which are prospective in nature cannot take away or impair the right of candidates holding Diploma in Mechanical Engineering as on the date of making appointment as well as on the date of scrutiny by the Commission they were qualified for selection and appointment. In fact the entire selection in the normal course would have been finalized much before the amendment of Rules, but for the interim orders of the High Court. If there had been no interim orders, the selected candidates would have been appointed much before the amendment of Rules. Since the process of selection had commenced and it could not be completed on account of the interim orders of the High Court, the appellants right to selection and appointment could not be defeated by subsequent amendment of Rules.

5. It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing Page 3045 the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.

8. The attitude of respondents smacks of arbitrariness on their part. In the short affidavit filed by the petitioner, it was stated that the department is not bound to give an opportunity to each and every candidate who possesses the ETE Diploma and have crossed the upper age limit. The paramount function of the State is to serve its people. They have to take care of the rules already framed by them. It is not understood how they have made the amendment without thinking about the fate of those persons, who, have already cleared ETE. The respondents are not supposed to ruin the career of a number of persons out of blue. The people should be given sufficient notice that such and such amendment is going to be made and the people should act in consonance with that amendment. The purpose of the respondents should not be to lead the people up the garden path. This is the bounden duty of the respondent to take into account the prevailing conditions, actualities of life, natural Justice and public policy to determine whether an amendment in rules subserves the purposes of the society. The Rule of law which permeates our constitution demands that it has to observe both substantially and procedurally. Rule of law posits that the power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. Right to fair treatment is an essential inbuilt of natural Justice. Whenever there is arbitrariness in state action- whether it be of the legislature or of the executive or an authority under Article 12, Articles 14 and 21 spring into action and strike down such an action.

9. In this context, it may be mentioned here that the respondents must amend the recruitment age from both sides, firstly for seeking diploma in ETE from 17 and 30 years to the age which will fit in with the age of their appointment as Assistant Teacher(Primary). Those who have already qualified ETE and come within the limits of 32 years for male and 42 years for female they should be permitted to appear in the test and all those benefits which were being given to SC/ST and Physically handicapped persons should be given till the new rules may be made applicable.

10. It is surprising to note that on the one hand DSSSB for Recruitment of Assistant Teacher(Primary), Directorate of Education, Govt. of NCT of Delhi has amended and reduced the age criteria vide advertisement No. 03/2006, on the other hand, DSSSB for Recruitment of Assistant Teacher (Primary), Municipal Corporation of Delhi did not reduce the age vide advertisement No. 01/2006 and the previous age pattern etc. were followed. The incongruous stands set up the respondents, which are branches of the same Govt., have baffled the Court.

Page 3046

11. The whole gamut of the aforesaid facts and circumstances prima-facie leans on the side of the petitioners. Consequently, I hereby stay the further proceedings pursuant to the advertisement No. 3/206 dated 27.07.2006 for the recruitment of Assistant Teacher (Primary) as post code No. 57/2006 issued by respondent No. 1 on requisition of respondents No. 2 & 3 published in the newspaper The Hindustan Times dated 27.07.2006. I further order that the exams be not held pursuant to the above said advertisement till further order. Nothing in this order will debar the respondents to make fresh advertisements following the previous age pattern and pursue the matter further. Nothing in this order be taken as expression of opinion on the merits of this case.

The applications are disposed of.

WP (C) 12727-45/06, 13444-57/06, 13478-92/06, 13503-04/06, 13743-48/06, 13843/06, 13867/06, 13868/06, 14181/06

12. The respondents are directed to file counter affidavit within a period of four weeks. Advanced copies be furnished to the counsel for the petitioner. Rejoinder be filed within two weeks thereafter.

13. Renotify on 28.11.2006.