Court Can Intervene If Competent Authority Takes Unreasoned and Arbitrary Decisions On Recruitment: Delhi HC [Read Judgment]

Delhi High Court has held that the court can intervene when the competent authority takes its decision unreasonably, arbitrarily and without paying attention to all the reasonable factors. Moreover, in light of such circumstances, the court can also direct the said authority to exercise its power in a certain manner. In the present case, the petitioner had challenged the policy of Government of NCT of Delhi for the recruitment of Special Education Teachers (SETs) wherein an age relaxation of 10 years was provided for female candidates but no such benefit was provided for male candidates, despite a large number of positions lying vacant. This policy was pursuant to the judgment in Social Jurist v. Govt. of NCT of Delhi (2009) 163 DLT 498, had directed the respondents and other government agencies to take steps to recruit special educators in all schools managed by the state government and local government bodies. This direction was issued keeping in view the provisions of the Persons with Disability Act (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. After the original application was dismissed by the Tribunal, the petitioner had approached the High Court which after considering the fact that the appointments to the post of SET had been initiated after an inordinate delay, allowed the petition and directed the respondents to consider the petitioner‟s request for age relaxation by taking into consideration the fact that due to the delay in the initiation of the recruitment process, many eligible candidates might have become ineligible. In compliance with this direction, the respondent released an Order wherein the petitioner‟s request was rejected on the ground that no case had been made out for extending the same age relaxation to male candidates. The petitioner then challenged the aforesaid Order before the Tribunal where the respondents argued that it was the prerogative of the employer to prescribe the method of selection, qualification and age criteria for filling up vacant posts and that no challenge thereto can be entertained by the courts. It was further contended that relaxation could not be claimed by the petitioner as a matter of right. Aggrieved by the Tribunal's order, the petitioner approached the High Court. The court opined that granting relaxation of any rule, like all other decisions of the executive, has to be governed by good reason and rationality. It is not a whimsical or arbitrary power that the executive is vested with. The reasons should exist and should be disclosed by recording the same in writing. Reasons should exist, and be recorded, not only when the power of relaxation is exercised, but also when the executive declines the relaxation. The court went on to cite section 3 of the Right to Education Act and sections 16 and 17 of the Rights of Persons with Disabilities Act, 2016, to highlight that statutory duty has been cast upon the respondents to ensure that all educational institutions, funded and recognised by them, provide inclusive education to children with special needs and raise the requisite infrastructure to serve that purpose. In the light of these statutory duties it appears that, though the respondents initiated the process of creating the post of SET for schools under the GNCTD, they filled the same only under the directions of this Court; even though there was a statutory duty cast upon them to do so on their own accord, not only under the Disabilities Act but also under the Right to Education Act. The bench comprising of Justice Rekha Palli and Justice Vipin Sanghi highlighted that despite their repeated attempts, the respondents have not been able to fill the said posts of SET because the respondents are not willing to budge from their rigid mindset – not to grant age relaxation to male teachers. Moreover, while dealing with the petitioner's prayer, the respondents ought to have taken into account the fact that, even though it is the employer‟s prerogative to prescribe the recruitment norms, including the age criteria, the employer has a simultaneous duty to ensure that vacant posts are substantially filled by qualified persons, even if that implies the grant of age relaxation to a certain extent. Acknowledging disabled children from poor families to be the worst sufferers of the decision taken by the respondents, the court held that despite being vested with the power – which is coupled with the duty to act reasonably and with responsibility, to grant relaxation in appropriate cases, the respondents have failed to consider the relevant factors and misdirected themselves by examining the issue in a myopic manner, without taking into consideration the constitutionally and statutorily recognised and protected rights of children with disabilities. Finally, on the issue of directing the respondents to act in a...

Court Can Intervene If Competent Authority Takes Unreasoned and Arbitrary Decisions On Recruitment: Delhi HC [Read Judgment]

Karan Tripathi

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