DELHI SUBORDINATE SERVICES SELECTION BOARD versus PRAVEEN KUMAR
[2016] 12 S.C.R. 145, Supreme Court of India, 2016
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
[2016] 12 S.C.R. 145 
DELHI SUBORDINATE SERVICES SELECTION BOARD 
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v. 
PRAVEEN KUMAR 
(Civil Appeal No. 10824of2016) 
NOVEMBER 11, 2016 
[A. K. SIKRI AND R. BANUMATHI, JJ.] 
Service Law: 
Recruitment - Eligibility -Age limit -Appellant board issued 
advertisement for the post of Teacher (Primary) in Municipal 
Corporation of Delhi ('MCD) schools - As per advertisement, the 
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age limit for candidates for the post of Teacher was 20-27 years -
When the final result of selected candidates was published in public 
domain, respondent's name also appeared declaring him 'not eligible' 
and the reason for ineligibility was 'over age' - Following the 
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;udgment of Delhi High Court in Sachin Gupta case, the Central 
Administrative Tribunal ('CAT') as well as High Court directed the 
Appellant board to give age relaxation to the respondent - On appeal, 
held: It is the employer's prerogative to decide the age limit and 
academic suitability of candidates which they wish to employ and 
so long as the same are not contradictory to the academic eligibility 
as prescribed by the NCTE Act, any challenge to the same, 111erely 
because it renders some candidates ineligible, ought to be rejected 
- On facts, High Court's judgment in Sachin Gupta's case cannot be 
applicable for all times, as that was one time relaxation given for 
the exa111ination which was conducted in the year 2008, in order to 
ameliorate the hardship - On contrary, respondent applied for the 
post pursuant to the
advertisement published in the year 2009 -
Therefore, the judgment of High Court as well as of CAT set aside. 
Allowing the appeal, the Court 
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HELD: 1. It is the employer's prerogative to decide the 
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age limit and academic suitability of candidates which they wish 
to employ and so long as the same are not contradictory to the 
academic eligibility as prescribed by the NCTE Act, any challenge 
to the same, merely because it renders some candidates 
ineligible, ought to be rejected. Fixing of such age limit for a 
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given post is a matter of policy. [Para 9] (152-G-H; 153-A] 
2.1. In the judgment passed by the Delhi High Court in 
Sacliin Guota case, after rejecting the contentions on merits and 
upholding the validity of the Recruitment Rules, the Court went 
into the issue of hardship because of sudden reduction in the 
upper age limit and only on that ground one time relaxation was 
given to the petitioners in the said petition. A direction was given 
to permit all those candidates who had completed the ETE course 
either in the year 2006 or 2007 or 2008 to appear in the 
examination. Thus, this was one time relaxation given for the 
examination which was to be conducted in the year 2008, in order 
to ameliorate the hardship. [Para 10) [153-A-C] 
2.2. On perusal of the contours and scope of the judgment 
and directions, it becomes abundantly clear that the said judgment 
of the High Court in Sachi11 Gupta's case cannot be made 
applicable for all times. The respondent was not the candidate in 
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the recruitment to the said post in the year 2008. On the contrary, 
he applied for the post pursuant to the advertisement published 
in the year 2009. In the impugned judgment the High Court has 
failed to consider the aforesaid analysis of its earlier judgment in 
Saclii11 Gupta's case. [Para 11) [154-C-E) 
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Union of India & Ors. v. Shivbachan Rai 2001 (9) 
sec 356 - relied on. 
Sachin Gupta v. DSSSB & Ors. (decided on
28.08.2008 
by Delhi High Court) - held inapplicable. 
Case Law Reference 
2901 (9) sec 356 
relied on 
Para9 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. I 0824 
of2016. 
From the Judgment and Order dated 20.07.2016 of the High Court 
of Delhi at New Delhi in Writ Petition (C) No. 3104of2016. 
Chander Uday Singh, Ajit Kumar Sinha, Sr. Advs., Chirag M. 
Shroff, Rishi Kumar Singh Gautam, Vaibhav C., Ms. Neha Sangwan, 
R. K. Rathore, B. K. Prasad, D. S. Mehra, Advs. for the Appellant.
DELHI SUBORDINATE SERVICES SELECTION BOARD v. 
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PRAVEEN KUMAR 
Ashwani Bhardwaj, Amit Kumar, Advs. for the Respondent. 
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The following Judgment of the Court was delivered 
JUDGMENT 
I. Heard learned counsel appearing for the parties. 
2. Leave granted. 
3. The Delhi Subordinate Services Selection Board (hereinafter 
referredto as the 'Appellant Board') seeks to impugne the legality of 
the judgment and order dated 20.07.2016 passed by the High Court of 
Delhi in Writ Petition No. 3 I 04 of 2016 whereby the High Court has 
affirmed the order of the Central Administrative Tribunal (CAT) which 
directed the Appellant Board to consider the candidature of the respondent 
for selection and appointment as Teacher (Primary) in MCD Schools by 
giving him age relaxation upto 32 years, provided he does not exceed the 
upper age limit of32 years as on the cutoff date, i.e. 15.01.2010, and he 
fulfills all other eligibility conditions as stipulated in the advertisement. 
4. The facts giving rise to filing of this appeal can be summarized 
as under: 
5. The Appellant Board has been incorporated with the purpose 
of recruiting competent individuals by conducting written tests, personal 
interviews etc. for the user departments. In the present case, on the 
request of the Municipal Corporation of Delhi (MCD), an advertisement 
for the post of Teacher (Primary) in MCD Schools, along with other 
posts, was published on 07 .11.2009 by the Appellant Board. As per the 
advertisement, the
age limit for candidates for the post of Teacher 
(Primary) was 20-27 years and relaxations were applicable as per rules. 
Subsequently, the Appellant Board issued addendum of advertisement 
on 13.09.2011 informing that pursuant to the directions of the CAT dated 
20.07.20 I 0, the Recruitment Rules for the said post have been modified 
by the MCD and the cutoff date was stated to be 15.01.2010 for 
calculating the age limit. The Appellant Board prepared the Marks List 
of20,0 I 4 candidates and uploaded the same on its website on 08.07 .20 I 4. 
On the basis of the Marks List, the MCD, being the user department, 
approved the checklist as per Recruitment Rules and classified all cases 
as provisionally selected. Final result was published in public domain on 
05. I 2.2014, in respect of candidates being selected, rejected or whose 
candidature was kept pending while mentioning the reason thereof. The 
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Appellant Board also published the names of ineligible candidates wherein 
the respondent's name also appeared, declaring him as 'not eligible' and 
the reason for his ineligibility was mentioned as 'over age'. 
6. In the instant case, the respondent claimed eligibility before the 
CAT by filing an Original Application for the post of Teacher (Primary) 
in the MCD Schools challenging the reject notice dated 05.12.2014. The 
· respondent herein sought relief from the Courts below relying upon the 
judgment of the Delhi High Court in the case of Sachin Gupta vs. 
DSSSB & Ors. decided on 28.08.2008. Following the said judgment, the 
CAT as well as the High Court directed the Appellant Board to give age 
relaxation to the respondent. The Appellant Board, being aggrieved by 
the impugned order dated 20.07.2016 passed by the High Court, is before 
us in this appeal. 
7. If one goes strictly L>y the eligibility conditions stipulated in the 
advertisement or the Rules for recruitment to the post of Teacher 
(Primary), it cannot be disputed that the upper age limit for consideration 
to appointment to the aforesaid post is 27 years. It means that any person 
who has attained the age of27 years renders himself/herself ineligible to 
apply for the said post. Notwithstanding the same, benefit of age relaxation 
was given to the respondent herein relying upon the judgment of Delhi 
High Court in Sachin Gupta's case.
Therefore, the first question for 
consideration is as to whether that judgment can be made applicable in 
the case of the respondent as wel I. 
8. A copy of the said judgment dated 28.08.2008 passed in Sachin 
Gupta s case was produced before us and we have gone through it. On 
going through this judgment, one finds that, in that case, challenge was 
made to the Notification dated 13.07.2007, vide which Recruitment Rules 
for the appointment to the post of Assistant Teacher (Primary) in the 
·Government ofNCT, Delhi or Municipal Corporation of Delhi, as being 
unconstitutional, illegal and arbitrary. These rules were promulgated by 
exercising the power by virtue of proviso to Article 309 of the Constitution. 
Insofar as the Government of NCT, Delhi is concerned, it exercised 
power under Section 98 read with Section 480(2) of the Delhi Municipal 
Corporation Act, 1957, qua MCD. Vide these rules minimum and 
maximum eligible age for the candidates to the said post was fixed at 
20-27 years respectively. However, before the promulgation of these 
Rules, as per the earlier Rules the upper age limit was 32 years for male 
candidates and 42 years for female candidates. The main ground of the
DELHI SUBORDINATE SERVICES SELECTION BOARD v. 
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PRAVEEN KUMAR 
challenge was that by notification of such Rules petitioners therein had 
lost their chance as there was legitimate expectation given to them that 
they would be eligible till the age of 32 years. It was argued that the 
prospectus of the two years Elementary Teachers Education course 
expressly professed that it was "carefully designed to prepare teachers 
at elementary level in Delhi" and contained a minimum and maximum 
age of enrollment as 17 and 30 years respectively, thereby representing 
that aspirants between 19 to 32 years would be eligible for appointment 
to the post of teachers in Delhi. The High Court rejected the aforesaid 
contention and even other contentions raised by the petitioners. It was 
further held that the Rules were statutory and had legislative character 
and such Rules could not be challenged on the ground of ma la tides. It 
was also held that the doctrine oflegitimate expectation has no application. 
Following portion of the judgment of the High Court discussing these 
aspects is worth a mention and the same is re-produced as under: 
"45. Since the impugned RRs have been notified by the 
MCD and Government ofNCT of Delhi by vi11ue of power 
conferred under Section 98 of DMC Act and by virtue of 
proviso to A11icle 309 of the Constitution respectively, we 
are of the view that the impugned RRs are statutory and 
legislative in character. In V.K. Sood Vs. Secretary, Civil 
Aviation
& Ors. Repo11ed in (1993) Supp 3 SCC 9 the Apex 
Court recognized this legal position when it held:-
"3 ...... .It would thus be clear that the rules made by 
the President or authorized person under proviso to 
Article 309 are subject to any law made by the 
Parliament and the wver includes rules regulating 
the recruitment and the conditions of service or post. 
They are statutory and legislative in character. The 
statutory rules thus made are subject to the law that 
may be i1iade by the Parliament.. .... " 
(emphasis supplied) 
46. It is further settled law that the com1s must approach 
subordinate legislative instruments with considerable amount 
of caution. Presumption of constitutionality and 
reasonableness ordinarily attached to legislative enactment, 
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f2016] 12 S.C.R. 
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applies to statutory rules also. In P.V. Mani & Ors. Vs. 
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Union oflndia reported in AIR 1986 Kerala 86 a Full Bench 
of Kerala High Court observed as under:-
" ... .It is therefore needless to add that the Courts 
shall approach subordinate legislative instruments with 
considerable amount of caution and examination for 
absence of competence or reasonableness or fairness 
and other invalidating circumstances with almost the 
same standards as legislative enactments are dealt 
with by courts. The presumption of constitutionality, 
competence and reasonableness ordinarily attaches 
to such instruments just as much as to legislative 
enactments, as is evident from the following 
observations from" Administrative Agencies and the 
Courts" by Cooper:-
" Where the legislature has clearly delegated such 
authority, the only issue that can normally be raised 
as to the validity of the rule concern the question 
whether it is ultra vires as exceeding the scope of 
the authority delegated, and whether it is violative of 
due process guarantees. These issues are not often 
presented and accordingly such regulations are 
normally treated on the same basis as legislative acts. 
It is not that such instruments are absolutely immune 
from attacks. But such attacks should be considered 
only on production of prima facie proof as to such 
invalidating circumstances. The Court shall not 
assume that a subordinate
legislative instruments is 
invalid for absence of competence or bona fides or 
fairness or reasonableness and cast the negative 
burden on the rule-making authority. It should be just 
the other way; the person who challenges the vires 
ofa rule has to prove his challenge just as much as a 
person who challenges a legislative enactment. If he 
fails in such attempt the challenge can only be thrown 
out.. ... " 
(emphasis supplied)
DELHl SUBORDINATE SERVICES SELECTION BOARD v. 
PRAVEEN KUMAR 
4 7. In Khoday Distilleries Ltd. v. State ofKarnataka reported 
iri (1996) 10 sec 304 para 13 it has been hel~ that the test 
of the arbitrariness applicable to the delegated legislation is 
different from the one applicable to executive actions. The 
relevant portion of the said judgment is reproduced for ready 
reference:-
" 13. It is next submitted before us that the amended 
Rules are arbitrary, unreasonable and cause undue 
hardship and, therefore, violate A11icle 14 of the 
Constitution. Although the protection of Article 
19(1 )(g) may not be available to the appellants, the 
rules must, undoubtedly, satisfy the test of Article 14, 
which is a guarantee against arbitrary action. 
However, one must bear in mind that what is being 
challenged here under Article 14 is not executive 
action but delegated legislation. The tests of arbitrary 
action which apply to executive actions do not 
necessarily apply to delegated legislation. In order 
that delegated legislation can be struck down, such 
legislation must be manifestly arbitrary; a law which 
could not be reasonably expected to emanate from 
an authority delegated with the law-making power. 
In the case of Indian Express Newspaper (Bombay) 
(P) Ltd. V. Union oflndia (SCR at p.243) this Court 
said that a piece of subordinate legislation does not 
carry the same degree of immunity which is enjoyed 
by a statute passed by a competent legislature. A
subordinate legislation may be guestioned under 
Article 14 on the ground that it is unreasonable; 
"unreasonable not in the sense of not being 
reasonable, but in the sense that it is manifestly 
arbitrary". Drawing a comparison between the law 
in England in India, the Court further observed that 
in England the judges would say, "Parliament never 
intended the authority to make such Rules; they are 
unreasonable and ultra vi res". In India, arbitrariness 
is not a separate ground since it will come within the 
embargo of Article 14 of the Constitution. But 
subordinate legislation must be so arbitrary that it 
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would not be said to be in conformity with the statute 
or that it offends Article 14 of the Constitution." 
48. Further, as the Rules are legislative in character 
they cannot be challenged on the grounds of 
malafides. In Capt. B.D. Gupta V. State of U.P. 
reported in 1991 Supp( I) SCC I para 1 of the 
Supreme Court held:-
" 17 ... .If the Rules were framed for making regu tar 
appointments in the Civil Aviation Depm1ment, there 
was no reason whey they should have been confined 
only to three posts whicb included the post of Director. 
Secondly, he pointed out that whereas the post of 
Director was not a promotional one earlier and was, 
therefore, open to external candidates as well, it was 
made promotional to suit Captain Singh. These 
circumstances according to us do not prove the mala 
tides. Admittedly, the Rules are made under A11icle 
309 of the Constitution oflndia and are, therefore, a 
piece oflegislation. It is well settled that no legislation 
can be challenged on the ground of mala tides ...... " 
49. In our opinion, the doctrine of legitimate expectation, 
referred to by the petitioners, has no application to the present 
case as the Respondents have never represented or held 
out to any student entering into an ETE course, that he 
would be given employment with the Respondents. In fact, 
ETE is a professional training course and the candidates 
securing such degrees are free to pursue
other career options 
all over India with other agencies as well . The course does 
not confer any vested rights or employment with either the 
Government or MCD. In view of the absence of any 
representation regarding employability with the Respondents 
alone upon completion ofa qualifying course, the petitioners' 
plea oflegitimate expectation merits no acceptance." 
9. The High Court also accepted the well recognized principle 
that it is the employer's prerogative to decide the age limit and academic 
suitability of candidates which they wish to employ and so long as the 
same are not contradictory to the academic eligibility as prescribed by
DELHI SUBORDINATE SERVICES SELECTION BOARD v. 
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PRAVEEN KUMAR 
the NCTE Act, any challenge to the same, merely because it renders 
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some candidates ineligible, ought to be rejected. Fixing of such age limit 
for a given post is a matter of policy as held by this Court in Union of 
India & Ors. vs. Shivbachan Rai reported in 200 I (9) SCC 356. 
· 10. After rejecting the contentions on merits and upholding the 
validity of the Recruitment Rules, the Court went into the issue of hardship 
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because of sudden reduction in the upper age limit and only on that 
ground one time relaxation was given to the petitioners in the said petition. 
A direction was given to permit all those candidates who had completed 
the ETE course either in the year 2006 er 2007 or 2008 to appear in the 
examination. Thus, this was one time relaxation given for the examination 
which was to be conducted in the year 2008, in order to ameliorate the 
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hardship. 
11. Once, we understand the contours and scope of the judgment 
and directions, it becomes abundantly clear that the said judgment of the 
High Court in Sachin Gupta's case cannot be made applicable for all 
times. The respondent herein was not the candidate in the recruitment 
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to the said post in the year 2008. On the contrary, he applied for the post 
pursuant to the advertisement published in the year 2009. In the impugned 
judgment the High Court has failed to consider the aforesaid analysis of 
its earlier judgment in Sachin Gupta
s case. 
12. We, therefore, allow this appeal and set aside the judgment of E 
the High Court as also.Jhat of the CAT. 
· 
Ankit Gyan 
Appeal allowed.