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Salwan Public School, Etc. Vs. D.K. Dass, Etc. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal Nos. 365 and 1379 of 1982
Judge
Reported inILR1982Delhi268
ActsDelhi School Education Act, 1973 - Sections II; Constitution of India - Article 236
AppellantSalwan Public School, Etc.
RespondentD.K. Dass, Etc.
Advocates: K.P. Kapur and; A. Ahlawat, Advs
Excerpt:
.....the tribunal. (9) the whole aim and object of the legislature would be plainly defeated if the command to do the thing in the particular manner is not obeyed. it explicitly says that 'no person shall be so appointed unless he has held office as a district judge or any equivalent judicial office'.unless we are satisfied that he has held 'any equivalent judicial office',we cannot uphold mr......'tribunal', consisting of one person : provided that no person shall be so appointed unless he has held office as a district judge or any equivalent judicial office.(3) the respondent mr. d. k. dass. indian administrative service . has been appointed as 'delhi school tribunal' under section 11. the petitioner, salwan public school, challenges his appointment and says that an order be made quashing his appointment because he does not possess the legal qualifications for holding the office in question.(4) the director of education, respondent no. 6, has made an affidavit giving the bio data of mr. dass. this bio data shows that mr. dass is an indian administrative service . officer. he joined the service in 1957 and since then he has held various posts. he has been deputy commissioner of.....
Judgment:

Avadh Behari Rohatagi, J.

(1) The question raised in the petition has never yet, we believe, been decided and as it is of considerable importance, and has been fully argued before us, we think we ought not to delay giving our decision.

(2) The question is this. By Section 11 of the Delhi School Education Act, 1973 (Act No. 18 of 1973) the Admimstrator of the Union Territory of Delhi is empowered to constitute a School Tribunal to hear appeals. It is one mac: tribunal. Section Ii, in so far as it is material, is in these terms : 11(1) The Administrator shall, by notification, constitute a Tribunal, to be known as the 'Delhi School 'Tribunal', consisting of one person : Provided that no person shall be so appointed unless he has held office as a District Judge or any equivalent judicial office.

(3) The respondent Mr. D. K. Dass. Indian Administrative Service . has been appointed as 'Delhi School Tribunal' under section 11. The petitioner, Salwan Public School, challenges his appointment and says that an order be made quashing his appointment because he does not possess the legal qualifications for holding the office in question.

(4) The Director of Education, respondent No. 6, has made an affidavit giving the bio data of Mr. Dass. This bio data shows that Mr. Dass is an Indian Administrative Service . officer. He joined the service in 1957 and since then he has held various posts. He has been Deputy Commissioner of Kapurthala in Punjab. He has been Deputy Commissioner of Goa. At present he is holding the position of Financial Commissioner in addition to his being 'Delhi School Tribunal'.

(5) By what authority Mr. Dass supports the claim to the office he holds. This is the real issue. The incumbent of the office has to have the legal qualifications prescribed by the Act.

(6) On behalf of the administration it was submitted that Mr. Dass has wide judicial experience and enjoys a status equivalent to that of a District Judge and with the approval of the Lt. Governor he was appointed as the 'Delhi School Tribunal'.

(7) The short point for decision is whether Mr. Dass has ever held the office of 'a District Judge or any equivalent Judicial office'. It is not contested that Mr. Dass has never held the office of a District Judge. Now the question is : Has he held any judicial office equivalent to that of a District Judge It was said that in view of Mr. Dass's vast judicial experience he should be considered as having held a judicial office equivalent to that of a District Judge. We cannot accept this argument. The office of the Deputy Commissioner which Mr. Dass held in the past or that of the Financial Commissioner which he now holds are not judicial offices equivalent to the office of a District Judge. Those were administrative assignments. The key word in the proviso is 'judicial'. 'Judicial' means pertaining to a judge or judges as distingushed from legislative and administrative offices. Mr. Dass has never been a judge. He is not, thereforee, qualified to function as the Tribunal.

(8) The proviso is farmed in negative and prohibitory terms. When statutory conditions are couched in negative terms they are almost invariably held to be mandatory. Negative words compel an imperative construction. The proviso is worded'in strong language. The wording is too strong to justify our taking a milder view of the legal qualifications of the presiding officer of the Tribunal.

(9) The whole aim and object of the legislature would be plainly defeated if the command to do the thing in the particular manner is not obeyed. The neglect of the requirements of the proviso will invalidate the appointment.

(10) The legislative mandate is clear. The person to man the tribunal must have a judicial standing. He must be a district judge or some one equal to him in ability and experience. He must come from the judiciary to which we the judges have the honour to belong. This provision is a striking illustration of what is called 'judicialisation of tribunals'. So the presiding officer cannot be an executive officer, whatever be his rank or authority, position or power.

(11) The Act is imperative. It explicitly says that 'no person shall be so appointed unless he has held office as a District Judge or any equivalent judicial office'. Unless we are satisfied that he has held 'any equivalent judicial office', we cannot uphold Mr. Dass's appointment to the Tribunal. In Article 236 of the Constitution of India we have the clue to the question raised before us. Article 236(a) says : '236. In this Chapter : (a) the expression 'district judge' includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate sessions judge, additional sessions judge and assistant sessions judge;'

(12) These offices are equivalent judicial offices. Mr. Dass has not held any of these. He cannot be said to be legally qualified to be appointed as the School Tribunal. We must, thereforee, hold his appointment as illegal.

(13) In the result, the writ petition is allowed and the appointment of Mr. D. K. Dass, respondent No. 1, is quashed. The parties are, however, left to bear their own costs.


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