Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services — Free for one month.
Supreme Court of India
Manoj Kumar vs Union Of India on 20 February, 2024
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha, Aravind Kumar
2024 INSC 126 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2679/2024
ARISING OUT OF SLP (C) NO. 5278 /2019
MANOJ KUMAR …. APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. …RESPONDENT(S)
JUDGMENT
PAMIDIGHANTAM SRI NARASIMHA, J.
1. Leave granted.
2. This appeal is by the appellant seeking appointment as a
primary school teacher. He is aggrieved by the judgment of the
Division Bench of the High Court of Delhi dismissing the writ
appeal,1 which was filed against the order of the Single Judge
dismissing his writ petition. 2
3. Pt. Deendayal Upadhyaya Institute for the Physically
Handicapped, hereinafter referred to as the ‘Institute’, issued an
advertisement in March 2016 calling applications for appointment
Signature Not Verified
Digitally signed by
Indu Marwah
Date: 2024.02.20
17:35:55 IST
Reason:
1
L.P.A. No. 158/2018 dated 16.10.2018.
2
W.P. (C) No. 5279/2017 and C.M. 22382/2017 dated 24.01.2018.
1
to the post of primary school teachers. The vacancy circular issued
for this purpose provided the qualifications and the procedure for
selection. The basic qualification was senior secondary with a two-
year diploma or certificate course in ETE/JBT or B.EI.Ed. The
candidates were required to have passed the secondary level with
Hindi as a subject. The final selection was to be made after
conducting an interview of qualified candidates. The Institute
reserved its right to evaluate, review the process of selection, and
shortlist candidates at any stage, and its decision would be final
and binding. This discretionary power is notified under Clauses 14
and 19 of the vacancy circular. The relevant clauses relied on by
the Institute are as follows:
“14. Decision of the institute in all matters regarding
eligibility of the candidate, the stages at which such
scrutiny of eligibility is to be undertaken, the documents to
be produced for the purpose of conduct of interview,
selection and any other matter relating to recruitment will
be final and binding on the candidate. Further, the institute
reserves the right to stall/ cancel the recruitment partially/
fully at any stage during the recruitment process at its
discretion, which will be final and binding on the candidate.
19. Fulfilment of conditions of minimum qualification shall
not necessarily entitle any applicant to be called for further
process of recruitment, in case of large number of
applications, Institute reserves the right to short-list
applications in any manner as may be considered
appropriate and no reason for rejection shall be
communicated and no claim for refund of fee shall be
entertained in any case.”2
4. On 27.04.2016, the Institute deviated from the procedure
prescribed in the original advertisement/vacancy circular and
issued a notification dispensing with the interview requirement,
which was a part of the selection process for Group ‘B’ and ‘C’
posts. Instead, it prescribed allocation of additional marks for
essential qualifications, additional qualifications, essential
experience, and the written test.
5. The issue arising for consideration in the present case relates
the allocation of marks for additional qualifications, for which 10
marks had been prescribed. The break-up of the 10 allocable
marks is as under:
SL Particulars Marks
2. Marks for Additional Qualifications 10
(Maximum)
a PG Diploma 5
b PG Degree 6
c MPhil/ Professional Qualification in the 7
Field
d PhD 10
6. It is evident from the above that a candidate possessing a Post
Graduate Diploma and a Post Graduate Degree would be entitled
to allocation of 5 and 6 marks respectively for their additional
3
qualification. However, a person possessing an MPhil degree or a
professional qualification in the field would be entitled to allocation
of 7 marks for their additional qualification.
7. When the results were declared on 22.05.2017, the appellant
got an aggregate of 57.5 marks, and respondent no. 3 got 58.25
marks. On enquiry, the appellant came to know that marks of
respondent no. 3 are inclusive of the 7 marks that she was entitled
to for holding the professional qualification of Masters in
Education (M.Ed.). The appellant has no complaint against the
allocation of 7 additional qualification marks to respondent no. 3.
He was however surprised by the denial of 6 marks for the
additional qualification of PG Degree that he held, on the ground
that his PG Degree was not “in the relevant subject”.
8. The appellant’s simple case is that had he been allocated 6
marks for the PG Degree that he possessed, he would be the
highest in the list by aggregating a total of 63.5 marks. Denial of 6
marks on a new ground that the PG Degree held by him is not in
the relevant subject, he says, is illegal and arbitrary. He made a
representation on 26.05.2017 for allocation of 6 marks. Due to
4
inaction, he approached the Delhi High Court by way of a writ of
mandamus to the Union and the Institute to remedy the injustice.
9. The learned Single Judge of the High Court refused to
interfere by following the principle laid down in the judgment of
this Court in University Grants Commission v. Neha Anil Bobde
(Gadekar), 3 where it was held that in academic matters, the
qualifying criteria must be left to the discretion of the concerned
institution. The appellant then preferred a Writ Appeal, and the
Division Bench also followed the principle in Neha Anil Bobde, as
reiterated in other decisions, 4 and held that in academic matters,
the interference of the Court should be minimum. In para 13 of its
judgment, the High Court also relied on Clauses 14 and 19 of the
vacancy circular to hold that the Institute in any event reserves
the right to shortlist applications as it considers appropriate. Thus,
the appellant approached this Court in 2019 itself.
10. At the outset, we note that the procedure for selection was
provided in the vacancy circular issued in March 2016. Instead of
following the said procedure, the Institute chose to adopt a new
3
(2013) 10 SCC 519.
4
Tamil Nadu Education Department Ministerial and General Subordinate Services Association v. State of Tamil
Nadu (1980) 3 SCC 97; All India Council for Technical Education v. Surinder Kumar Dhawan (2009) 11 SCC
726.
5
method by its notification dated 27.04.2016, wherein it dispensed
with the interview and prescribed the allocation of marks for
additional qualifications. We make it clear at this very stage that
the appellant has not challenged the variation in the original
selection process of an interview and its replacement with
allocation of marks for additional qualifications. The only challenge
is that the denial of 6 marks for the additional qualification of a PG
Degree that he possesses is illegal and arbitrary. On the other
hand, the respondents raised the standard defence by invoking
Clauses 14 and 19 to submit that they have reserved the right of
shortlisting candidates as is considered appropriate. They also
submit that the appellant cannot be given the benefit of 6 marks
for additional qualifications as he did not possess the PG Degree
in the “relevant subject”.
11. Analysis: The standard argument made consistently and
successfully before the Single Judge and Division Bench must fail
before us. Clauses 14 and 19 of the vacancy circular do nothing
more than reserving flexibility in the selection process. They
cannot be read to invest the Institute with unbridled discretion to
pick and choose candidates by supplying new criteria to the
prescribed qualification. This is a classic case of arbitrary action.
6
The submission based on Clauses 14 and 19 must fail here and
now.
12. The other submission of the respondent about restricting a
“PG Degree” to a “PG Degree in Relevant Subject” must also be
rejected. The illegality in adopting and applying such an
interpretation is evident from a simple reading of the notification
dated 27.04.2016 providing for additional qualifications. The
additional qualifications provided under clauses ‘a’ to ‘d’ are under
two categories. While ‘a’, ‘b’, and ‘d’ relating to PG Diploma, PG
Degree, and PhD are general qualifications providing for 5, 6, and
10 marks respectively, the category under ‘c’ relates to Professional
Qualification in the field. This is where specialization is prescribed.
If we add the requirement of specialization to category ‘b’, i.e., PG
Degree, then that category becomes redundant. The whole purpose
of providing PG Degree independently and allocating a lesser
quantum of 6 marks will be completely lost if such an
interpretation is adopted. This can never be the purpose of
prescribing distinct categories. No further analysis is necessary.
We reject this submission also.
13. The Single Judge as well as the Division Bench did not really
analyse the prescription of additional qualifications and the
7
distinct marks allocated to each of them, but confined their
decision to restraint in judicial review and dismissed the
appellant’s prayer. When a citizen alleges arbitrariness in
executive action, the High Court must examine the issue, of
course, within the context of judicial restraint in academic
matters. While respecting flexibility in executive functioning,
courts must not let arbitrary action pass through. For the reasons
stated above, we are of the opinion that the decisions of the Single
Judge and the Division Bench are not sustainable, and we hereby
set aside their judgments.
14. The story does not end here.
15. While reserving the judgment, we directed the respondents to
file an additional affidavit with respect to the availability of a
vacant position. Following the direction, respondents 1 and 2 have
filed an affidavit. Paragraph 3 and 4 of the affidavit read as under:
“3. I state that the applications were invited to fill up the
vacancy for Primary School Teacher at the Model Integrated
Primary School [hereinafter the ‘School’] which was run by
the Respondent No. 2 Institute. The Petitioner and the
Respondent had applied in the SC category for which there
was single post. The School has been closed on 01.04.2023
with the approval of the 128th Standing Committee held on
13.05.2022 and 49th General Council held on 26.05.2022. I
further state that the Respondent No. 3 who was select in
pursuance of aforementioned application had joined the
post of Primary Teacher on 02.04.2018 and has since
resigned on 24.10.2019.
8
4. I therefore state that on account of the closure of the
School, there is no vacancy in the post of Primary Teacher
to which the Petitioner and the Respondent No. 3 had
applied and which is the subject matter of the Special Leave
Petition. The letter dated 13/14.12.2023 of the Pt.
Deendayal Upadhyay National Institute for Persons with
Physical Disabilities (Divyangjan) to the Ministry of Law and
Justice is also annexed herewith for reference as Annexure
A1.”
16. It is evident from the above that the school for which the
advertisement was issued was closed on 01.04.2023. In view of the
closure of the school, we cannot direct the respondent Institute to
employ the appellant as a primary school teacher. This is an
unfortunate situation where the Court finds that the action of the
respondent was arbitrary, but the consequential remedy cannot be
given due to subsequent developments. One stark reality of the
situation is the time that has passed between the order of 2018
impugned herein and the judgment that we pronounce in 2024.
17. Judicial review of administrative action in public law is
qualitatively distinct from judicial remedies in civil law. In judicial
review, constitutional courts are concerned with the exercise of
power by the State and its instrumentalities.
18. Within the realm of judicial review in common law
jurisdictions, it is established that constitutional courts are
entrusted with the responsibility of ensuring the lawfulness of
9
executive decisions, rather than substituting their own judgment
to decide the rights of the parties, which they would exercise in
civil jurisdiction. 5 It has been held that the primary purpose of
quashing any action is to preserve order in the legal system by
preventing excess and abuse of power or to set aside arbitrary
actions. Wade on Administrative Law states that the purpose of
quashing is not the final determination of private rights, for a
private party must separately contest his own rights before the
administrative authority. 6 Such private party is also not entitled to
compensation merely because the administrative action is illegal. 7
A further case of tort, misfeasance, negligence, or breach of
statutory duty must be established for such person to receive
compensation.8
19. We are of the opinion that while the primary duty of
constitutional courts remains the control of power, including
setting aside of administrative actions that may be illegal or
arbitrary, it must be acknowledged that such measures may not
singularly address repercussions of abuse of power. It is equally
incumbent upon the courts, as a secondary measure, to address
5
Sir Clive Lewis, Judicial Remedies in Public Law (5th edn, Sweet and Maxwell 2015).
6
HWR Wade and CF Forsyth, Administrative Law (11th edn, Oxford University Press 2014) 596-597.
7
Peter Cane, ‘Damages in Public Law’ (1999) 9(3) Otago Law Review 489.
8
Henry Woolf and others, De Smith’s Judicial Review (8th edn, Sweet and Maxwell 2018) 1026-1027.
10
the injurious consequences arising from arbitrary and illegal
actions. This concomitant duty to take reasonable measures to
restitute the injured is our overarching constitutional purpose.
This is how we have read our constitutional text, and this is how
we have built our precedents on the basis of our preambular
objective to secure justice.9
20. In public law proceedings, when it is realised that the prayer
in the writ petition is unattainable due to passage of time,
constitutional courts may not dismiss the writ proceedings on the
ground of their perceived futility. In the life of litigation, passage of
time can stand both as an ally and adversary. Our duty is to
transcend the constraints of time and perform the primary duty of
a constitutional court to control and regulate the exercise of power
or arbitrary action. By taking the first step, the primary purpose
and object of public law proceedings will be subserved.
21. The second step relates to restitution. This operates in a
different dimension. Identification and application of appropriate
remedial measures poses a significant challenge to constitutional
9
The Preambular goals are to secure Justice, Liberty, Equality, and Fraternity for all citizens.
11
courts, largely attributable to the dual variables of time and limited
resources.
22. The temporal gap between the impugned illegal or arbitrary
action and their subsequent adjudication by the courts introduces
complexities in the provision of restitution. As time elapses, the
status of persons, possession, and promises undergoes
transformation, directly influencing the nature of relief that may
be formulated and granted.
23. The inherent difficulty in bridging the time gap between the
illegal impugned action and restitution is certainly not rooted in
deficiencies within the law or legal jurisprudence but rather in
systemic issues inherent in the adversarial judicial process. The
protracted timeline spanning from the filing of a writ petition,
service of notice, filing of counter affidavits, final hearing, and then
the eventual delivery of judgment, coupled with subsequent
appellate procedures, exacerbates delays. Take for example this
very case, the writ petition was filed against the action of the
respondent denying appointment on 22.05.2017. The writ petition
came to be decided by the Single Judge on 24.01.2018, the
Division Bench on 16.10.2018, and then the case was carried to
this Court in the year 2019 and we are deciding it in 2024. The
12
delay in this case is not unusual, we see several such cases when
our final hearing board moves. Appeals of more than two decades
are awaiting consideration. It is distressing but certainly not
beyond us. We must and we will find a solution to this problem.
24. It is in this reality and prevailing circumstance that we must
formulate an appropriate system for preserving the rights of the
parties till the final determination takes place. In the alternative,
we may also formulate a reasonable equivalent for restitution of
the wrongful action.
25. Returning to the facts of the present case, in exercise of our
primary duty, we have set aside the action of the respondents as
being illegal and arbitrary. In furtherance of our duty to provide a
reasonable measure for restitution, we have explored the
possibility of directing the Institute to appoint the appellant as a
primary teacher in any other school run by them. However, it
seems that the only primary school run by the Institute is the one
for which they sought to fill vacancies and it is closed since 2023.
In this situation, we must consider an alternative restitutory
measure in the form of monetary compensation.
13
26. We appreciate the spirit of the appellant who has steadfastly
contested his case like the legendary Vikram,10 from the year 2017
when he was illegally denied the appointment by the executive
order dated 22.05.2017, which we have set aside as being illegal
and arbitrary. In these circumstances, we direct the Institute
(respondent no. 2) to pay an amount of Rs. 1,00,000/- as
compensation. This amount shall be paid to the appellant within
a period of six weeks from the date of passing of this order.
27. For the reasons stated above, we allow the appeal and set
aside the judgment of the High Court in W.P. (C) No. 5279 of 2017
and C.M. No. 22382 of 2017 dated 24.01.2018 and in L.P.A. No.
158 of 2018 dated 16.10.2018 and direct the Institute (respondent
no. 2) to pay Rs. 1,00,000/- as a compensation with cost
quantified at Rs. 25,000/-.
……………………………………….J.
[Pamidighantam Sri Narasimha]
……………………………………….J.
[Sandeep Mehta]
New Delhi.
February 20, 2024.
Against Betala, in the famous Vetalapancavimsati, the original being the Kathasaritsagara
10
work of the 11th Century by Somadeva.
14
[ad_2]