* Author
[2024] 2 S.C.R. 409 : 2024 INSC 126
Manoj Kumar
v.
Union of India & Ors.
(Civil Appeal No. 2679 of 2024)
20 February 2024
[Pamidighantam Sri Narasimha* and Sandeep Mehta, JJ.]
Issue for Consideration
The appellant sought appointment as a primary school teacher.
The issue arising for consideration in the present case relates the
allocation of marks for additional qualifications, for which 10 marks
had been prescribed.
Headnotes
Service Law – Recruitment – Allocation of marks for additional
qualifications – An Institute issued an advertisement in March
2016 calling applications for appointment to the post of primary
school teachers – For the allocation of marks, additional
qualifications 10 marks had been prescribed – The appellant
herein is aggrieved 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” – Propriety:
Held: It is evident from the record 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 – 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 one adds 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
410 [2024] 2 S.C.R.
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– The Single Judge as well as the Division Bench of the High Court
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, this Court is of the opinion that
the decisions of the Single Judge and the Division Bench are not
sustainable. [Paras 12, 13]
Administration of Justice – Primary duty of constitutional
courts – Addressing injurious consequences arising from
arbitrary and illegal administrative actions:
Held: 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 – The injurious consequences
arising from arbitrary and illegal actions – This concomitant duty to
take reasonable measures to restitute the injured is overarching
constitutional purpose – This is how one has to read constitutional
text – 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 – It is the duty
of the Court 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. [Paras 19, 20]
Administration of Justice – Restitution of the wrongful action
– discussed.
Administration of Justice – Alternative restitutory measure –
Monetary compensation:
Held: In the instant case, in exercise of primary duty, the action
of the respondents are set aside as being illegal and arbitrary – In
furtherance of duty to provide a reasonable measure for restitution,
[2024] 2 S.C.R. 411
Manoj Kumar v. Union of India & Ors.
the possibility was explored 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, an alternative restitutory measure
in the form of monetary compensation is considered – Thus, the
Institute (respondent no. 2) is directed to pay an amount of Rs.
1,00,000/- as compensation. [Paras 25 and 26]
Case Law Cited
University Grants Commission v. Neha Anil Bobde,
[2013] 9 SCR 521 : (2013) 10 SCC 519; Tamil
Nadu Education Department Ministerial and General
Subordinate Services Association v. State of Tamil Nadu,
[1980] 1 SCR 1026 : (1980) 3 SCC 97; All India Council
for Technical Education v. Surinder Kumar Dhawan,
[2009] 3 SCR 859 : (2009) 11 SCC 726 – referred to.
Books and Periodicals Cited
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.
List of Keywords
Service Law; Recruitment; Allocation of marks for additional
qualifications; Arbitrariness in executive action; Judicial review;
Academic matters; Judicial restraints; Administration of Justice;
Primary duty of constitutional courts; Transcending constraints
of time; Control and regulation of the arbitrary action; Restitution
of the wrongful action; Alternative restitutory measure; Monetary
compensation.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2679 of 2024
From the Judgment and Order dated 16.10.2018 of the High Court
of Delhi at New Delhi in LPA No. 158 of 2018
412 [2024] 2 S.C.R.
Digital Supreme Court Reports
Appearances for Parties
Ranjit Kumar Sharma, Adv. for the Appellant.
K. M. Nataraj, A.S.G., Amrish Kumar, Shailesh Madiyal, Navanjay
Mahapatra, Apoorv Kurup, T.A. Khan, T.S. Sabarish, Arun Kanwa,
Purnendu Bajpai, Advs. for the Respondents.
Judgment / Order of the Supreme Court
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 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
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.
[2024] 2 S.C.R. 413
Manoj Kumar v. Union of India & Ors.
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 (Maximum) 10
a PG Diploma 5
b PG Degree 6
c MPhil/ Professional Qualification in the Field 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.
414 [2024] 2 S.C.R.
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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 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
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.
[2024] 2 S.C.R. 415
Manoj Kumar v. Union of India & Ors.
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 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 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
416 [2024] 2 S.C.R.
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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 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
[2024] 2 S.C.R. 417
Manoj Kumar v. Union of India & Ors.
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 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 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
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.
9 The Preambular goals are to secure Justice, Liberty, Equality, and Fraternity for all citizens.
418 [2024] 2 S.C.R.
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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 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 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
[2024] 2 S.C.R. 419
Manoj Kumar v. Union of India & Ors.
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/-.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal allowed.
10 Against Betala, in the famous Vetalapancavimsati, the original being the Kathasaritsagara work of the
11th Century by Somadeva.
