DELHI SUBORDINATE SERVICES SELECTION BOARDversusPRAVEEN KUMAR

                      [2016] 12 S.C.R. 145



   DELHI SUBORDINATE SERVICES SELECTION BOARD                       A
                                v.
                      PRAVEEN KUMAR
                 (Civil Appeal No. 10824of2016)
                      NOVEMBER 11, 2016                             B

           [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 c
Corporation of Delhi ('MCD) schools - As per advertisement, the
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 D
;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 E
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
                                                                      F
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
      HELD: 1. It is the employer's prerogative to decide the        G
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
                                                                     H
                                145
146            SUPREME COURT REPORTS                     r20I6l 12 S.C.R.


A     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
B     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
c     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
D     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)
E           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
F
            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
G     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.

H
  DELHI SUBORDINATE SERVICES SELECTION BOARD v.                                 147
                PRAVEEN KUMAR

       Ashwani Bhardwaj, Amit Kumar, Advs. for the Respondent.                  A
      The following Judgment of the Court was delivered
                           JUDGMENT
       I. Heard learned counsel appearing for the parties.
       2. Leave granted.                                                        B

        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           c
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.
                                                                                 D
      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            E
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
                                                                                 F
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.     G
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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148              SUPREME COURT REPORTS                           [2016] 12 S.C.R.


A     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)
B 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
c 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
D     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
E     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
             s
   Gupta case was produced before us and we have gone through it. On
   going through this judgment, one finds that, in that case, challenge was
F 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
G 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
H candidates and 42 years for female candidates. The main ground of the
  DELHI SUBORDINATE SERVICES SELECTION BOARD v.                                149
                PRAVEEN KUMAR

challenge was that by notification of such Rules petitioners therein had       A
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
                                                                               B
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         c
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:-                      E



          "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                        F
          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.. .... "
                                                                                G
                                            (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,
                                                                                1-1
150      SUPREME COURT REPORTS                         f2016] 12 S.C.R.



A     applies to statutory rules also. In P.V. Mani & Ors. Vs.
      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
B        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
c        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
D        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
E        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
F        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
G        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)
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DELHl SUBORDINATE SERVICES SELECTION BOARD v.                       151
              PRAVEEN KUMAR

  4 7. In Khoday Distilleries Ltd. v. State ofKarnataka reported    A
  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:-
                                                                    B
     " 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,
                                                                     c
     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                  D
     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)                E
     (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                 F
     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             G
      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           H
152            SUPREME COURT REPORTS                             [2016] 12 S.C.R.



A               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.
B               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
c               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
D               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,
E           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
F           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'
G           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
H
  DELHI SUBORDINATE SERVICES SELECTION BOARD v.                                  I 53
                PRAVEEN KUMAR

the NCTE Act, any challenge to the same, merely because it renders A
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     B
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            C
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 D
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.