W.P.(C) No.8663/2008 Page 1 of 22 * HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 6th July, 2010 % Judgment Pronounced on: 30th July, 2010 + WP(C) No.8663/2008 SMT. SUNITA BUGGA ..... Petitioner Through: Mr. Ravi Gupta, Sr. Adv. with Mr. Sandeep Mittal, Adv. Versus DIRECTOR OF EDUCATION AND OTHERS ….. Respondents Through: Ms. Purnima Maheshwari, Adv. for Respondents 1 to 3. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment?Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner, a trained graduate teacher (social sciences) has prayed for declaring the Notification No.F.27(3)/94-Edn/1068- 1076 dated 4th November, 1999 issued by the Government of National Capital Territory of Delhi (Education Department) as ultra vires Article 14 of the Constitution of India. 2. The facts which are imperative to be stated are that the petitioner was appointed as Assistant Teacher in the R.M. Arya Girls Senior Secondary School in 1977 and was promoted as TGT (Social Sciences) in August, W.P.(C) No.8663/2008 Page 2 of 22 1983. The post of PGT (Sanskrit) fell vacant in the school in November, 1992. The petitioner, who was teaching Sanskrit in Classes X to XII for certain academic sessions, was not promoted as she was not found eligible for the post of PGT (Sanskrit) by the Departmental Promotion Committee (DPC) which met on 5th May, 2007. Though various averments have been made with regard to the findings arrived at by the DPC and the deliberations made by it, yet the same do not really deserve to be dwelled upon in the present case since the acid test is whether the relevant rules 96, 98 and 108 of the Delhi School Education Rules, 1973 (for short „the rules‟) on a proper interpretation help and assist the petitioner to meet the eligibility criteria and further whether the notification plays foul with Article 14 of the Constitution of India. 3. It is asserted in the petition that the introduction of the amendment in the eligibility criteria which deals with promotion is not in consonance with the Rules 96 and 98 of the rules and certain pronouncements in the field. Be it noted, apart from making some bald allegations, nothing else has been averred as to how the notification really invites the frown of Article 14 of the Constitution. 4. A counter affidavit has been filed by respondent Nos. 1 to 3 contending, inter-alia, that the petitioner is a TGT (Social Study) having done her post graduation in public administration/ Political Science/Sanskrit whereas the selected candidate was TGT (MIL) Sanskrit and she had done W.P.(C) No.8663/2008 Page 3 of 22 M.A. in Sanskrit. It is urged that the Director of Education vide letter dated 29th August, 2007 clarified that the selected candidate deserved to be appointed as she was TGT (MIL) Sanskrit and was qualified as per the recruitment rules. It is also put forth that the notification brought on 4th November, 1999 is not violative of Article 14 of the Constitution. 5. The constitutional validity of the notification that has been called in question reads as follows:- “No.F.27(3)/94-Edn:- In exercise of the powers conferred by proviso to article 309 of the Constitution, read with the Government of India, Ministry of Home Affairs‟ Notification No.F.27/5- Him (I), dated the 13 July 1959, the Lt. Governor of the National Capital Territory of Delhi is pleased to make the following amendments in the schedule annexed to the notification No.F.2(41/72-S.II) dated 10.07.1975 and F.27(3)/94-Edn dated 26.02.1996, as amended from time to time, containing the Rules regarding the method of recruitment and qualifications necessary for appointment to the „Post‟ of Lecturer excluding (1) Lecturer – (Paining, Commercial Art/Graphic Sculpture/ Engineering Drawing), (2) Lecturer)- Home Science/Domestic Science, (3) Lecturer – Music and (4) Lecturer – physical Education in the Directorate of Education of this Government, namely:- Amendment In the schedule annexed to the said notifications, the following amendment be made: 7 Columns No.12: Promotion 1. T.G.T. in the scale of Rs.1400-2600/- (pre-revised) possessing Post Graduate Diploma of 2 Years duration in science from Delhi University with 5 years regular service in grade. Or TGT/Language Teachers in the scale of Rs.1400-2600/- (pre-revised) possessing qualifications prescribed for direct recruitment and with 5 years regular service in the grade. W.P.(C) No.8663/2008 Page 4 of 22 2. For the posts of Lecturer in Hindi, Sanskrit, Punjabi etc. only Trained Graduate Teachers/ Language Teaches in Sanskrit and in Modern Indian Language concerned will be considered for promotion in their respective subjects. For the post of Lecturer in other subjects only Trained Graduate Teachers (Science „A‟ science „B‟, commerce, Agriculture and General) will be considered. (NATHU SINGH) ADDITIONAL SECRETARY (EDN) No.F 27(3)/94-Edn/1068-1076 dated: 4.11.99” 6. On a perusal of the said notification, it is manifest that the schedule that was annexed to the notification dated 10th July, 2005 and 26th February, 1996 which dealt with the method of recruitment and qualifications necessary for appointment to the post of Lecturer barring certain posts has been amended. Clause 2 stipulates that for the posts of Lecturer in Hindi, Sanskrit, Punjabi, etc., only trained graduate teachers/language teachers in Sanskrit and in modern Indian language concerned will be considered for promotion in their respective subjects. 7. Mr. Ravi Gupta, learned senior counsel appearing for the petitioner, has raised the following contentions:- (a) The notification that has been issued runs counter to Rules 96, 98 and 108 and when there is visible transpiration, the same has to be set at naught. (b) The classification made in the notification between the trained graduate teachers who are senior but come from different faculties and the trained graduate teachers who have been incorporated in Clause 2 of Column W.P.(C) No.8663/2008 Page 5 of 22 12 is totally arbitrary and has no nexus with the object sought to be achieved and invites the wrath of Articles 14 and 16 of the Constitution of India. (c) By virtue of the amendment in the notification, the chances of promotion of the petitioner has been totally curtailed and curbed and, therefore, it is fully unreasonable and invites the frown of Article 14 of the Constitution. 8. Ms. Purnima Maheshwari, learned counsel for the respondent Nos. 1 to 3, resisting the aforesaid submissions, canvassed as follows:- (i) The stand put forth that the notification is contrary to the rules in vogue is misconceived as the rules deal with a different sphere altogether and the notifications from time to time have been dealing with the requisite criteria for promotion. The question of the notification supplanting the rule does not arise and, therefore, the submission in that regard is without any substance. (ii) When the post in question relates to Lecturer in a particular subject, the teaching experience has in the said subject relevance and it cannot be said that it has no rationale behind it. A teacher teaching in that subject stands on a different footing and the classification made between two categories of teachers is permissible and is not hit by Article 14 of the Constitution. (iii) An employee has a right to be considered for promotion but he can have no grievance when his chances for promotion are curtailed as that rests with the employer. W.P.(C) No.8663/2008 Page 6 of 22 9. Though we have reproduced the notification and noted the submissions of the learned counsel for the parties, yet we are obliged to state that after narration of certain facts in the writ petition relating to certain correspondences, reproduction of some rules and reference to certain citations, namely, Chander Pal Jain & Another v. Delhi Administration etc., 61(1996) DLT 464, T.M.A. Pai Foundation & Others v. State of Karnataka & Others, 2002(8) Scale 1, Sushma Banga v. Delhi Administration and Others, 2003 III AD (Delhi) 429, Valsala Kumari Devi M. v. Director, Higher Secondary Education and Others, (2007) 8 SCC 533, Sonica Jaggi v. Lt. Governor & Others, 152(2008) DLT 601, the prayer has been made to declare the notification as ultra vires Article 14 of the Constitution of India despite the absence of any specific assertion as to how the notification is violative of Article 14 of the Constitution of India. 10. It is well settled in law that a person who assails the constitutional validity of an Act or a notification must specifically set forth the grounds for such challenge. In this context, we may refer with profit to certain decisions in the field. 11. In State of Uttar Pradesh v. Kartaar Singh, AIR 1964 SC 1135, while dealing with the constitutional validity of Rule 5 of the Food Adulteration Rules, 1955, their Lordships opined as follows:- “(15)…..if the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any a priori reasoning but only as a result of materials placed before the Court by W.P.(C) No.8663/2008 Page 7 of 22 way of scientific analysis. It is obvious that this can be done only when the party invoking the protection of Art. 14 makes averments with details to sustain such a plea and leads evidence to establish his allegations. That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend Art. 14 the burden is on him to plead and prove the infirmity is too well established to need elaboration.” 12. In State of Andhra Pradesh and another v. K. Jayaraman and others, AIR 1975 SC 633, it has been stated thus:- “3. It is clear that, if there had been an averment, on behalf of the petitioners, that the rule was invalid for violating Articles 14 and 16 of the Constitution, relevant facts showing how it was discriminatory ought to have been set out.” 13. In Union of India v. E.I.D. Parry (India) Ltd., AIR 2000 SC 831, a two Judge Bench of the Apex Court has expressed thus:- “There was no pleading that the Rule upon which the reliance was placed by the respondent was ultra vires the Railways Act, 1890. In the absence of the pleading to that effect, the trial Court did not frame any issue on that question. The High Court of its own proceeded to consider the validity of the Rule and ultimately held that it was not in consonance with the relevant provisions of the Railways Act, 1890 and consequently held that it was ultra vires. This view is contrary to the settled law…” 14. In State of Haryana v. State of Punjab & another, (2004) 12 SCC 673, a two Judge Bench of the Apex Court has expressed thus:- “82….. It is well established that constitutional invalidity (presumably that is what Punjab means when it uses the word “unsustainable”) of a statutory provision can be made either on the basis of legislative incompetence or because the statute is otherwise violative of the provisions of the Constitution. Neither the reason for the particular enactment nor the fact that the reason for the legislation has become redundant, would justify the striking down of the legislation or for holding that a statute or statutory provision is ultra vires. Yet these are the grounds pleaded in sub-paragraphs (i), (iv), (v), (vi) and (vii) to declare Section 14 invalid. Furthermore, merely saying that a particular provision is legislatively incompetent [ground (ii)] or W.P.(C) No.8663/2008 Page 8 of 22 discriminatory [ground (iii)] will not do. At least prima facie acceptable grounds in support have to be pleaded to sustain the challenge. In the absence of any such pleading the challenge to the constitutional validity of a statute or statutory provision is liable to be rejected in limine.” 15. Though in the case at hand, no specific asseverations have been made, yet as the learned counsel for the petitioner urged that the notification runs counter to the rules and the amendment made has no rationale and no object to achieve, we have thought it apt to address the same to put the controversy to rest. 16. First, we shall address whether the notification runs counter to the rules. The learned counsel has invited our attention to Rules 96, 98 and 108 of the rules. 17. Rule 96, which deals with recruitment, reads as follows:- “96. Recruitment- (1) Nothing contained in this Chapter shall apply to an unaided minority school. (2) Recruitment of employees in each recognised private school shall be made on the recommendation of the Selection Committee. (3) The Selection Committee shall consist of:- (a) in the case of recruitment of the head of the school, - (i) the chairman of the managing committee; (ii) in the case of an unaided school, an educationist is nominated by the managing committee, and an educationist nominated by the Director; (iii) in the case of an aided school, two educationists nominated by the Director, out of whom at least one shall be a person having experience of school education; W.P.(C) No.8663/2008 Page 9 of 22 (iv) a person having experience of the administration of schools, to be nominated, in the case of an unaided school by the managing committee, or in the case of an aided school by the Director; (b) in the case of an appointment of a teacher (other than the head of the school),- (i) the Chairman of the managing committee or a member of the managing committee nominated by the Chairman; (ii) the head of the school; (iii) in the case of a primary school, a female educationist having experience of school education; (iv) in the case of an aided school, one educationist to be nominated by the Director, and one representative of the Director; (v) in the case of appointment of a teacher for any class in the middle stage or any class in the higher secondary stage, an expert on the subject in relation to which the teacher is proposed to be appointed, to be nominated, in the case of an unaided school by the managing committee, or in the case of an aided school, by the Director. (c) in the case of an appointment of any other employee, not being an employee belonging to [“Group D”]. (i) the Chairman of the managing committee or a member of the managing committee, to be nominated by the Chairman; (ii) head of the school; (iii) a nominee of the Director; (iv) in the case of an aided school, two officers having experience of the administration of school, to be nominated by the Director; [(d) in the case of an appointment of a Group „D‟ employee:- W.P.(C) No.8663/2008 Page 10 of 22 (i) the Chairman of the Managing Committee or a member of the Managing Committee nominated by the Chairman; (ii) the head of the school;] [(3-A) Notwithstanding anything contained in sub-rule (3), in the case of an aided minority school, the educationists nominated under paragraph (iii) of clause (a) of sub-rule (3), persons nominated by the Director under paragraph (iv) of clause (a) of sub-rule (3), educationists nominated under paragraph (iv) of clause (b) of sub-rule (3), an expert nominated under paragraph (v) of clause (b) of sub-rule (3), a person nominated under paragraph (iii) of clause (c) of sub-rule (3), officers nominated under paragraph (iv) of clause (c) of sub-rule (3), a person nominated under paragraph (iii) of clause (b) of sub-rule (3), shall act only an advisers and will not have the power to vote or actually control the selection of an employee. (3-B) Notwithstanding anything contained in sub-rule (3), the selection committee of a minority school shall not be limited by the number specified in the said sub-rule and its managing committee may fix such number.] (4) Nomination of any educationist or expert as a member of the Selection Committee shall be made out of a panel prepared for the purpose by the Advisory Board. (5) The Chairman of the managing committee, or, where he is not a member of the Selection Committee, the member of the managing committee who is nominated by the Chairman to be a member of the Selection Committee, shall be the Chairman to the Selection Committee. (6) The Selection Committee shall regulate its own procedure. (7) Where any selection made by the Selection Committee is not acceptable to the managing committee of the school, the managing committee shall record its reasons for such non-acceptance and refer the matter to the Director for his decision and the Director shall decide the same. (8) Where a candidate for recruitment to any post in a recognised school is related to any member of the Selection Committee, the member to whom he is related shall not participate in the selection and a new member shall be nominated, in the case of any W.P.(C) No.8663/2008 Page 11 of 22 aided school, by the Director, and in the case of any other school, by the managing committee, in place of such member. (9) No managing committee shall entertain any application for employment from a person who is already serving as teacher in a recognised school, whether aided or not, unless the application from such person is duly forwarded by the manager of the school in which such applicant is serving: Provided that every application from such person shall be forwarded by the manager, but any application in excess of three in a year shall not be forwarded unless the managing committee, for reasons to be recorded by it in writing, so directs: Provided further that no such teacher shall be relieved of his duties except after the expiry of a period of:- (i) three months, in the case of a permanent teacher, from the date on which notice of intimation to leave the school is given; and (ii) one month, in the case of a teacher who is not permanent, from the date on which notice of intimation to leave the school is given; and Provided also where the managing committee is in a position to provide for a substitute for such teacher earlier than the respective period specified in the foregoing proviso, the managing committee may relieve the teacher of his duties on the expiry of such earlier period. 18. Rule 98, which provides for appointing authority, reads as under:- 98. Appointing authority- (i) The appointment of every employee of a school shall be made by its managing committee. [(2) Every appointment made by the managing committee of an aided school shall, initially, be provisional and shall require the approval of the Director: Provided that the approval of the Director will be required only where Director‟s nominee was not present in the Selection Committee/DPC or in case there is difference of opinion among the members of the Selection Committee:- W.P.(C) No.8663/2008 Page 12 of 22 Provided further that the provision of this sub-rule shall not apply to a minority aided school]. (3) The particulars of every appointment made by the managing committee of an aided school shall be communicated by such committee to the Director (either by registered post acknowledgment due or by messenger who will obtain an acknowledgment of the receipt thereof), within seven days from the date on which the appointment is made. (4) The Director shall be deemed to have approved an appointment made by the managing committee of an aided school if within fifteen days from the date on which the particulars of the appointment are communicated to him under sub-rule (3), he does not intimate to the managing committee his disapproval of the appointment, [and the person so appointed shall be entitled for his salary and allowance from the date of his appointment.] (5) Where any appointment made by the managing committee of an aided school is not approved by the Director, such appointment may (pending the regular appointment to the post) be continued on an adhoc basis for a period not exceeding three months and the salary and allowances of the person so continued on an adhoc basis shall qualify for the computation of the aid to be given to such school. 19. Rule 108, which provides for filling of vacancies, is as follows:- 108. Filling of vacancies- Every vacancy in an aided school shall be filled by promotion or by the direct recruitment in accordance with such rules as may be made by the administrator in this behalf.” 20. The basic test is to determine whether a rule to have effect must have its source of power which is relatable to the rule making authority. Similarly, a notification must be in accord with the rules, if there is a provision in the rule, as it cannot travel beyond it. In this context, we may refer with profit to the decision in General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav, AIR 1988 SC 876 wherein it has been held as follows:- W.P.(C) No.8663/2008 Page 13 of 22 “……Before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void.” 21. In Additional District Magistrate (Rev.), Delhi Administration v. Shri Ram, AIR 2000 SC 2143, it has been held that it is a well recognized principle that conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. 22. From the aforesaid enunciation of law, it is manifest that a rule has to conform to the provisions of the statute and it should not travel beyond the rule making power of the authority framing the rule. There cannot be inconsistency between the Act and the Rules. Repugnancy is inconceivable. 23. In the case at hand, there is a notification which has been issued in exercise of the power conferred by the proviso to Article 309 of the Constitution read with the Government of India, Ministry of Home Affairs‟ Notification No.F.27/5-Him(I) dated 13th July, 1959. On a scanning of the anatomy of the rules, it is absolutely clear that the said rules do not prescribe the qualification criteria for appointment. The prescription in the rules relate to recruitment, appointing authority and filling of vacancies. In the rule which comes under the heading „recruitment‟, there is preference to the selection committee, the concerned recommending authority, procedure to W.P.(C) No.8663/2008 Page 14 of 22 be followed by the selection committee and the rule relating to appointing authority lays down the procedure for appointment. Thus, the rules even remotely do not suggest anything with regard to the qualification required for promotion. As is perceived, the entire sphere of promotion is covered by the notification and, therefore, the submission of the learned counsel for the appellant that the notification runs counter to the rules is sans substance and we hereby repel the same. 24. The next limb of submission of the learned counsel for the petitioner pertains to discrimination inasmuch as by the notification, certain trained graduate teachers have been made eligible to be appointed to the post of Lecturer in Hindi, Sanskrit, Punjabi, etc. whereas the other trained graduate teachers, who are senior, have been not treated equally. It is alleged by him that the petitioner, who is a post graduate in Sanskrit, could not have been kept away by the stipulation that a person who is teaching in Sanskrit alone is eligible. The submission of the learned counsel for the petitioner is that when a qualification is prescribed, it must have an object to achieve and when the petitioner is a post graduate in Sanskrit and has taught Sanskrit periodically,