Manoj Kumar vs Union Of India on 20 February, 2024

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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)


             UNION OF INDIA & ORS.                                              …RESPONDENT(S)



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

L.P.A. No. 158/2018 dated 16.10.2018.


W.P. (C) No. 5279/2017 and C.M. 22382/2017 dated 24.01.2018.

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.”


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
 a       PG Diploma                                      5

 b       PG Degree                                       6

 c       MPhil/ Professional Qualification in the 7
 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

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

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

(2013) 10 SCC 519.


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


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.

The submission based on Clauses 14 and 19 must fail here and


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

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.


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

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

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


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

Sir Clive Lewis, Judicial Remedies in Public Law (5th edn, Sweet and Maxwell 2015).
HWR Wade and CF Forsyth, Administrative Law (11th edn, Oxford University Press 2014) 596-597.
Peter Cane, ‘Damages in Public Law’ (1999) 9(3) Otago Law Review 489.
Henry Woolf and others, De Smith’s Judicial Review (8th edn, Sweet and Maxwell 2018) 1026-1027.

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

The Preambular goals are to secure Justice, Liberty, Equality, and Fraternity for all citizens.

courts, largely attributable to the dual variables of time and limited


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

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.


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/-.

[Pamidighantam Sri Narasimha]

[Sandeep Mehta]
New Delhi.

February 20, 2024.

Against Betala, in the famous Vetalapancavimsati, the original being the Kathasaritsagara

work of the 11th Century by Somadeva.



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