Shahin Rustam And Anr vs Indira Gandhi National Open ...
2014 Latest Caselaw 3280 Del

*     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

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

(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.

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

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

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

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

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.

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.

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

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

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