OA 4616/14 2 Praveen Kumar v. DSSB & ors applications for recruitment to the post of Teacher (Primary) in Municipal Corporation of Delhi, under Post Code No.70/09. The relevant portion of the Advertisement is as follows:

"Name of the Post: Teacher (Primary) in MCD Post Code: 70/09

Number of Vacancies: 4500(UR-1900, OBC 1044, SC 786, ST-790, including PH (OH-OA/OL/OAL/BL - 52, PH(VH-B/LV)-96, EXSM-982)

Essential Qualifications:

1. Sr. Secondary (10+2) or Intermediate or its equivalent with 50% marks from a recognized Board.

2. Two years diploma/Certificate course in ETE/JBT or B.El.Ed. from recognized institutions or its equivalent.

3. Must have passed Hindi as a subject at Secondary Level.

Desirable Qualification: Computer knowledge. Pay Scale: 9300-34800- plus Grade Pay Rs.4200/-. Group-C Non-Gazetted.

Probation Period: Two years.

Age Limit: 20-27 years. Relaxable for SC/ST - 05 years, OBC-03 years, PH-10 years, PH&SC/ST-15 years. PH&OBC - 13 years.

Departmental employees - up to 42 years of age (General), up to 47 years for SC/ST, having 03 years of continuous service in the same line or allied cadres.

Relaxable up to 37 years for (General) and up to 42 years for SC/ST - for widows, divorced women and women judicially separated from their husband and who are not remarried."

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OA 4616/14 3 Praveen Kumar v. DSSB & ors

1.2 DSSSB also published an „Addendum of Advertisement Number 04/2009" increasing the number of vacancies from 4500 to 6500 in the post of Teacher (Primary) in MCD (Post Code 70/09).

1.3 The applicant had completed ETE Course, i.e., Two Years Diploma in Education in the year 2008. In response to the above Advertisement, he made application, along with copies of testimonials pertaining to his qualifications essential for the post of Teacher (Primary) in MCD. He was issued Admit Card to appear in the written examination. Accordingly, he appeared in the written examination.

1.4 DSSSB, vide office order No.343, dated 5.12.2014 (Annexure A/5), published result notice on the basis of the written examination held on 2.2.2014, whereby candidates belonging to different categories were provisionally selected and recommended for appointment to the post of Teacher (Primary) in MCD (Post Code 70/79), subject to outcome of Court cases/CAT cases pending in respect of the said Post Code. As per the said result notice, the last UR category candidate, who obtained 79 marks in the written examination, was provisionally selected and recommended for appointment to the post of Teacher (Primary) in MCD.

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OA 4616/14 4 Praveen Kumar v. DSSB & ors

1.5 DSSSB, vide office order No.344,dated 5.12.2014 (Annexure A/1), published another notice indicating the names of several candidates, including the name of the applicant, who were declared as "Not Eligible" and whose candidatures were rejected due to various reasons shown against their names in the remarks column of the list of those candidates. The applicant"s name figured at Sl.No.198 of the list of candidates contained in the said office order. He was shown to have obtained 88 marks in the written examination, and the reason for rejection of his candidature was mentioned in the remarks column as "Overage".

1.6 The applicant immediately approached DSSSB and brought to its notice the judgment, dated 28.8.2008, passed by the Hon"ble High Court of Delhi, in W.P. ( C ) No. 7279 of 2009 (Sachin Gupta and others v. DSSSB), wherein it was directed that the respondents would permit the candidates who completed ETE course during 2006 to 2008 to appear in the recruitment examination, by giving them age relaxation up to 32 years. On the basis of the said judgment of the Hon"ble High Court, the applicant claimed before DSSSB that he was entitled to age relaxation up to 32 years, and his date of birth being 29.6.1978, he was eligible for selection and appointment to the post of Teacher (Primary) in MCD. He, therefore, pleaded

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OA 4616/14 5 Praveen Kumar v. DSSB & ors before DSSSB that rejection of his candidature on the ground of his being overage was arbitrary and discriminatory, and the office order No.344, dated 5.12.2014 (Annexure A/1), as regards rejection of his candidature, was liable to be withdrawn. The last UR category candidate obtaining 79 marks in the written examination having been selected and recommended for appointment to the post of Teacher (Primary) in MCD, he should be selected and recommended for such appointment.

1.7 DSSSB having failed to redress his grievance, the applicant filed the present O.A. on 18.12.2014, seeking the following reliefs:

"a) Call for record leading to rejection of candidature of the applicant on account of Overage.

b) Quash & set aside the rejection notice (Annexure A/1) qua the applicant and direct the respondent no.2 to provisionally select and recommend name of the applicant for appointment as Teacher (Primary) MCD, GNCT of Delhi, Post Code 70/2009.

c) Pass such other and further order(s) as this Hon"ble Tribunal may deem fit & proper in the interest of justice.

d) The exemplary cost be imposed against the respondent for dragging the applicant in litigation for his legitimate right."

2. Opposing the O.A., the respondents have filed a counter reply, wherein it is, inter alia, stated that on the basis

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OA 4616/14 6 Praveen Kumar v. DSSB & ors of verification of dossiers of all the candidates, office order Nos.343 and 344, both dated 5.12.2014, were issued publishing the results. The category-wise breakups of results were as follows:

The respondents have stated that the applicant completed

Diploma in Education in the year 2008 and not ETE. In the

judgment passed by the Hon"ble High Court in Sachin

Gupta's case (supra), it was directed that the candidates who

completed ETE course either in the year 2006 or 2007 or 2008

would be permitted by the respondents to appear in the

recruitment examination for the post of Assistant Teacher

(Primary) by giving them age relaxation up to 32 years. It has

nowhere been directed by the Hon"ble High Court in the said

judgment that candidates having qualification of Diploma in

Education will also be benefited. Thus, the respondents

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OA 4616/14 7 Praveen Kumar v. DSSB & ors submit that the applicant is not entitled to age relaxation up to 32 years as an UR category candidate, and his candidature has rightly been rejected as he was overage as on the cutoff date, i.e., 15.1.2010. In the above view of the matter, the respondents submit that the O.A. is liable to be dismissed.

3. No rejoinder reply has been filed by the applicant.

4. We have heard Mr. Amit Kumar, learned counsel appearing for the applicant, and Mr.Amit Anand, learned counsel appearing for the respondents.

5. In support of the case of the applicant, Mr.Amit Kumar, learned counsel appearing for him, placed reliance on the decision of the Hon"ble High Court of Delhi in Sachin Gupta's case (supra); and the decision of the Hon"ble Supreme Court in Anuj Johri v. Union Of India & Ors, 2005 III AD (DELHI) 614. It was submitted by Mr.Amit Kumar that the Two Years Diploma in Education is an Elementary Teacher Education course for appointment as Teacher at primary level. In Delhi, this professional qualification is known as „Certificate course in ETE", whereas in the State of Madhya Pradesh the same is known as „Diploma in Education (Two Years Course)", which was completed by the applicant in the year 2008. The professional qualification of „Diploma in Education (Two Years Course)", as completed by the applicant in 2008, being

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OA 4616/14 8 Praveen Kumar v. DSSB & ors equivalent to „Certificate course in ETE", and candidates, like the applicant, possessing such equivalent qualification of „Diploma in Education (Two Years Course)" being eligible to apply for selection and appointment to the post of Teacher (Primary) in MCD in terms of the Advertisement published by DSSSB, the applicant is similarly situated as candidates who completed „Certificate course in ETE" in 2008 and were eligible for age relaxation up to 32 years as per the judgment of the Hon"ble High Court of Delhi in Sachin Gupta's case (supra). Therefore, denial of equal treatment to the applicant in the matter of age relaxation, and consequential rejection of his candidature by DSSSB are unsustainable in the eyes of law and liable to be quashed, and the DSSSB should be directed by the Tribunal to extend the benefit of the judgment of the Hon"ble High Court in Sachin Gupta's case (supra) to the applicant, and to select and recommend him for appointment to the post of Teacher (Primary) in MCD on the basis of the marks obtained by him in the written examination.

6. Per contra, Mr.Amit Anand, learned counsel appearing for the respondents, invited our attention to the contentions raised by the learned counsel appearing for the petitioners in Sachin Gupta's case (supra), as noted by the Hon"ble High Court of Delhi in its judgment, and also to

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OA 4616/14 9 Praveen Kumar v. DSSB & ors paragraph 64 of the said judgment. It was submitted by Mr.Amit Anand that with a view to ameliorate the hardship of the petitioners in that case, who had already enrolled in ETE course by the time the new Recruitment Rules came into force, and considering the facts and circumstances of that case, the Hon"ble High Court directed the respondents 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 conducted by the respondents for the post of Assistant Teacher (Primary) by giving them age relaxation up to 32 years. Mr.Amit Anand also submitted that in the absence of any direction being issued by the Hon"ble High Court in

Sachin Gupta's case (supra) to the respondents to permit the candidates, who had completed the Diploma in Education (Two Years Course) in 2008, like the applicant in the instant case, to appear in the recruitment examination for the post of Assistant Teacher (Primary) by giving them age relaxation up to 32 years, the respondents cannot be faulted for rejecting the candidature of the applicant as he was overage as on the cutoff date stipulated in the Advertisement. To buttress his submission, Mr.Amit Anand placed reliance on the following guiding principles of statutory interpretation, as printed at

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OA 4616/14 1 0 Praveen Kumar v. DSSB & ors pages 50 and 52 of the book titled "Principles of Statutory Interpretation" by Guru Prasanna Singh, 7^thEdition 1990:

"As stated by the Privy Council: "We cannot aid the Legislature"s defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there". "It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so". Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute….VENKATARAMA AIYER, J., quoted with approval the observations of LORD LOREBURN, L.C.: "We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself."

7. From the pleadings and rival contentions of the parties, we find that the only question that arises for consideration in this case is whether, or not, on the ratio of the judgment passed by the Hon"ble Court of Delhi in Sachin Gupta's case (supra), the applicant, who completed Diploma in Education (Two Years Course) in 2008, was entitled for age relaxation up to 32 years so as to be eligible for selection and appointment to the post of Teacher (Primary) in MCD, and the respondents were justified in rejecting the applicant"s candidature on the ground of his being overage.

8. As both the applicant and the respondents, in support of their respective cases, have placed reliance on the judgment of the Hon"ble High Court of Delhi in Sachin Gupta's case (supra), it would be useful to take note of the

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OA 4616/14 1 1 Praveen Kumar v. DSSB & ors facts and circumstances and the respective contentions of parties in that case, on consideration of which their Lordships issued direction to the respondents to permit the candidates, who had completed ETE course in 2006 or 2007 or 2008, to appear in the recruitment examination for the post of Assistant Teacher (Primary) by giving them age relaxation up to 32 years for male candidates and 42 years for female candidates.

9. In Sachin Gupta's case (supra), writ petitions were filed by the petitioners challenging both the Directorate of Education"s Notification dated 8^thMay 2006, and the Department of Urban Development"s Notification dated 13^th July 2007, notifying the Recruitment Rules for appointment to the post of Assistant Teachers (Primary) in the Government of NCT of Delhi, and in the Municipal Corporation of Delhi, as being unconstitutional, illegal and arbitrary. Both the Recruitment Rules mandatorily prescribed as essential eligibility criteria not only a minimum and maximum eligible age as 20 years and 27 years respectively, but also prescribed passing of Hindi subject at Secondary level, and minimum 50% marks in the Senior Secondary Examination. Prior to the impugned Recruitment Rules, the age limit for participating in the recruitment examination for the post of Assistant Teacher

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OA 4616/14 1 2 Praveen Kumar v. DSSB & ors (Primary) conducted by the respondents was 32 years for male candidates and 42 years for female candidates, study of Hindi as a subject at secondary level was not mandatory, and 50% of marks at Senior Secondary level was also not an essential eligibility criterion.

9.1 It was, inter alia, contended by the learned counsel appearing for the petitioners in the writ petitions that doctrine of legitimate expectation was attracted in the case as the prospectus of the two-year Elementary Teachers Education course expressly professed that it was carefully designed to prepare teachers at the elementary level in Delhi, and the said prospectus contained a minimum and maximum age limit of candidates for enrolment as 17 years and 30 years respectively, thereby representing that aspirants between 19 and 32 years would be eligible for appointment to the post of primary teachers in Delhi. In not taking such expectation into account, the respondents acted unreasonably by ignoring the circumstances proximate and relevant for acceptable decision. The age limit prescribed for the two years eligibility professional course (ETE/IBT, etc.) was between 17 and 30 years, and, therefore, those candidates who had secured admission in the said professional course either at the age of 27 years and beyond, or at the age of 17 years, would be

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OA 4616/14 1 3 Praveen Kumar v. DSSB & ors rendered ineligible to compete for selection and appointment to the post of Assistant Teacher (Primary) due to the new prescribed age limit of 20 - 27 years. The National Council of Teacher Education was the controlling and regulatory authority at the national level up to senior secondary teachers. In every State, there was a State Council of Educational Research and Training, and one of its primary duties was to bring about uniformity in the entire State in qualification of teachers. Laying emphasis on the foreword of Diploma course in ETE published by SCERT of Government of Delhi, the learned counsel appearing for the petitioners contended that the intent behind the ETE course, which was the basic eligibility criterion, would stand frustrated if ETE graduates would not be eligible to be considered for the post of Assistant Teacher (Primary), and that the age criterion has no nexus with the object sought to be achieved by way of enactment of the new Recruitment Rules. The age restriction between 20 and 27 years was counter productive as it tended to restrict competition as well as available talent.

9.2 On the other hand, it was, inter alia, contended by the learned counsel appearing for the respondents in Sachin Gupta's case (supra) that the age limit in the impugned Recruitment Rules was in conformity with the decisions of the

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OA 4616/14 1 4 Praveen Kumar v. DSSB & ors Government of India as well as State Government with regard to prescription of age limit for Groups C and D posts. Prescribing of educational qualification and age limit for selection and appointment to any post/service is the prerogative of the legislature as well as the executive, and the Courts should be slow to interfere with the same.

9.3 After considering the facts and circumstances of the case and also taking stock of the legal position and the principles of law referred to by the learned counsel appearing for the parties, the Hon"ble High Court held as follows:

(i) The doctrine of legitimate expectation has no application to the present case as the respondents never represented or held out to any student entering into an ETE course that he would be given employment with the respondents.

(ii) The impugned Recruitment Rules are effective only from the date of their notification and the petitioners cannot claim any vested right on the strength of an advertisement issued under old Rules which now stand withdrawn.

(iii) The NCTE Act only lays down minimum qualification for a person to be employed as an Assistant Teacher (Primary). Consequently, it is

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OA 4616/14 1 5 Praveen Kumar v. DSSB & ors always open to the respondents to prescribe additional qualifications.

(iv) There is neither any inconsistency nor contradiction between the NCTE Act, NCTE Regulations on the one hand and the impugned Recruitment Rules on the other hand. The new age, marks and language criteria are additional/higher qualifications and, therefore, the impugned Recruitment Rules are not ultra vires the NCTE Act or Regulations.

(v) It is the prerogative of the respondents 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, merely because it renders some candidates ineligible, ought to be rejected.

(vi) Prescribing of an age limit for a given post is a matter of policy, and while framing rules under the proviso to Article 309 of the Constitution the rule making authority can prescribe such age limit as it may deem necessary, and the same cannot be termed as arbitrary or unreasonable.

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OA 4616/14 1 6 Praveen Kumar v. DSSB & ors

(vii) A cut-off limit has to be prescribed along with eligibility conditions to select the best and the most suitable from amongst the available talent and so long as a uniform yardstick is applied for all, it cannot per se be claimed to be arbitrary or discriminatory. Fixing of age limit between 20 and 27 would only encourage young motivated, committed professionals to take up the challenge of teaching the small children.

After holding as above, the Hon"ble High Court observed, in paragraph 59 of the judgment, as under:

"59. However, considering that the maximum age prescribed for the post of Assistant Teachers (Primary) for the MCD and NCT has been reduced from 32 years for males and 42 years for females to 27 years, we are of the view that this would cause hardship to candidates already enrolled in the ETE course, who might suddenly find themselves over- age and ineligible. With a view to ameliorate this hardship and as a one-time measure, following the ratio in the case of Anuj Johri v. Union Of India & Ors, reported in 118(2005) DLT 418 = 2005 III AD (DELHI) 614, it is directed that the respondents would permit all those candidates who have completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the respondents for the posts of Assistant Teachers (Primary) once each of the respondents i.e. MCD and Govt. of NCT of Delhi provided they do not exceed the upper age limit of 32 years for males and 42 years for females and also fulfill all other eligibility conditions. This would also apply to candidates, who have already taken the examination as permitted by this Court. This

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OA 4616/14 1 7 Praveen Kumar v. DSSB & ors relaxation will be independent of the relaxation applicable to reserved categories. However, the relaxation granted by this Court shall cease to operate for the ETE courses after 2008 i.e. commencing from 2009 as from 30^thSeptember, 2007 the maximum age limit for ETE course has been reduced from 30 years to 24 years."

In paragraph 64, the Hon"ble High Court concluded as follows:

"64. To conclude, the language and marks criteria (namely passing of Hindi subject at primary level and minimum 50% marks in Senior Secondary examination) are upheld in their entirety. Even the age criteria (namely minimum and maximum eligibility age as 20-27 years respectively) is upheld but with a view to ameliorate the hardship of already enrolled students in ETE courses, it is directed that the respondents would permit all those candidates who have completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the respondents for the posts of Assistant Teachers (Primary) once each of the respondents i.e. MCD and Govt. of NCT of Delhi provided they do not exceed the upper age limit of 32 years for males and 42 years for females and also fulfill all other eligibility conditions. This would also apply to candidates, who have already taken the examination as permitted by this Court. This relaxation will be independent of the relaxation applicable to reserved categories. However, the relaxation granted by this Court shall cease to operate for the ETE courses after 2008 i.e. commencing from 2009 as from 30^thSeptember, 2007 the maximum age limit for ETE course has been reduced from 30 years to 24 years. Except to the above extent, legality and validity of the impugned RRs are upheld and accordingly the entire batch of writ petitions is disposed of in the above terms with no order as to costs."

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OA 4616/14 1 8 Praveen Kumar v. DSSB & ors

10. We have given our anxious consideration to the facts and circumstances of the present case and the rival contentions of the parties.

11. In the instant case, the certificate of Diploma in Education (Two Years Course) 2008, granted by the Board of Secondary Education, Madhya Pradesh, Bhopal, to the applicant, shows that the applicant completed the said course in the year 2008. It is not disputed by the respondents that the said Diploma in Education (Two Years Course) completed by the applicant in the year 2008 is equivalent to Certificate Course in ETE. It is also not disputed by the respondents that a candidate, who possesses the Diploma in Education (Two Years Course), like the applicant, is eligible for selection and appointment to the post of Teacher (Primary) in MCD. Thus, it is clear that (i) candidates possessing „Two years diploma/Certificate course in ETE/JBT", (ii) candidates possessing „B.El.Ed. from recognized institutions", and (iii) candidates, like the applicant, possessing „Diploma in Education(Two Years Course)", which is equivalent to „Two Years diploma/Certificate course in ETE/JBT or B.El.Ed. from recognized institutions", who in response to the Advertisement made applications for selection and recruitment to the post of

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OA 4616/14 1 9 Praveen Kumar v. DSSB & ors Teacher (Primary) in MCD, formed one and same class. Therefore, all such candidates are entitled to same and equal treatment in the matter of determination of their eligibility for selection and appointment to the post of Teacher (Primary) in MCD on the basis of marks obtained by them in the recruitment examination. If a candidate, who completed „Two Years Certificate Course in ETE" in 2008, is held eligible for selection and appointment to the post of Teacher (Primary) in MCD by giving him/her age relaxation up to 32 years in accordance with the judgment of the Hon"ble High Court of Delhi in Sachin Gupta's case (supra), it would be irrational and arbitrary to deny such age relaxation to a candidate, like the applicant, because he/she acquired „Two Years Diploma in Education" in the year 2008, and further because the Hon"ble High Court of Delhi in Sachin Gupta's case (supra) did not specifically direct the respondents to grant age relaxation up to 32 years to such a candidate and permit him/her to appear in the examination for recruitment of Assistant Teacher (Primary). As has been observed by the Hon"ble High Court in

Sachin Gupta's case (supra), the old Recruitment Rules for the post of Assistant Teachers (Primary) in the Government of NCT of Delhi, and in the Municipal Corporation of Delhi, prescribed the age limit of 32 years for male candidates and 42

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OA 4616/14 2 0 Praveen Kumar v. DSSB & ors years in the case of female candidates. The new Recruitment Rules notified by the Directorate of Education on 8.5.2006, and by the Department of Urban Development on 13.7.2007, prescribed the maximum age limit of 27 years for both male and female candidates belonging to UR category. In Sachin Gupta's case (supra), the Hon"ble Court took the view that the aforesaid reduction of age limit would cause hardship to candidates already enrolled in the ETE course, who might suddenly find themselves overage and ineligible. With a view to ameliorate the hardship of already enrolled students in ETE course, it was directed by the Hon"ble High Court that the respondents would permit all those candidates who completed the ETE course either in the year 2006 or 2007 or 2008 to appear in the examination conducted by the respondents for the post of Assistant Teacher (Primary), provided they did not exceed the upper age limit of 32 years for male candidates and 42 years for female candidates, and they fulfilled all other eligibility conditions. As already noted, in the present case, the applicant completed Diploma in Education(Two Years Course) in the year 2008. Because of reduction of age limit from 32 to 27 years by virtue of the new Recruitment Rules for the post of Teacher (Primary) in the years 2006 and 2007, the applicant was held to be overage as on the cutoff date, i.e.,

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OA 4616/14 2 1 Praveen Kumar v. DSSB & ors 15.1.2010, and consequently, his candidature was rejected by the respondents, although he obtained 88 marks in the written examination, and the last UR category candidate, who was selected and recommended for appointment, obtained 79 marks in the written examination. Although it was not specifically directed by the Hon"ble High Court in Sachin Gupta's case (supra) that candidates, who completed „Two Years Diploma in Education" in 2006 or 2007 or 2008, would be permitted by the respondents to appear in the examination by giving them age relaxation up to 32 years for male candidates and 42 years for female candidates, yet, in our considered view, the applicant and other similarly placed candidates are entitled to age relaxation up to 32 years for male candidates and 42 years for female candidates on the ratio of the judgment passed by the Hon"ble High Court of Delhi and/or on the same viewpoint as expressed by the Hon"ble Court in Sachin Gupta's case (supra), and denial of such age relaxation to the applicant and other similarly placed candidates would be irrational, arbitrary and discriminatory and thus violative of Articles 14 and 16 of the Constitution of India inasmuch as candidates completing „Two Years Diploma/Certificate Course in ETE" in the year 2008 and candidates completing „Diploma in Education (Two Years

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OA 4616/14 2 2 Praveen Kumar v. DSSB & ors Course)" in the year 2008, constituted and formed one and same class of candidates eligible for selection and appointment to the post of Teacher (Primary) in MCD and were, thus, entitled for equal treatment in the matter of determination of their eligibility.

12. In the light of our above discussions, we hold that the impugned Office Order No.344 dated 5.12.2014 (Annexure A/1), qua the applicant, is unsustainable and liable to be quashed, and accordingly, the same is hereby quashed. Consequently, the respondents are directed to consider the candidature of the applicant for selection and appointment to the post of Teacher (Primary) in MCD by giving him age relaxation up to 32 years, provided he did not exceed the upper age limit of 32 years as on the cutoff date, i.e., 15.1.2010, and he fulfilled all other eligibility conditions, as stipulated in the Advertisement. The respondents shall take appropriate decision in the case of the applicant within one month from today.

13. The Original Application is allowed to the extent indicated above. No costs.

(RAJ VIR SHARMA) (SUDHIR KUMAR)

JUDICIAL MEMBER ADMINISTRATIVE MEMBER

AN

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