Allahabad High Court
Anju And 2 Others vs State Of U.P. And 2 Others on 9 December, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 12803 of 2022 Petitioner :- Anju And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Gautam Baghel Counsel for Respondent :- C.S.C.,Bharat Pratap Singh,Gagan Mehta Hon'ble Saumitra Dayal Singh,J.
1. Heard Shri Gautam Baghel, learned counsel for the petitioner; Shri Bharat Pratap Singh, learned counsel for respondent National Council for Teacher Education and; Shri Gagan Mehta, learned counsel for the respondent Commission.
2. Present petition has been filed by the three petitioners to challenge the Advertisement No. 51 issued by U.P. Higher Education Service Commission (hereinafter referred to as the Service Commission) insofar as it relates to selection on the post of Assistant Professor (B.Ed.). Short submission advanced by learned counsel for the petitioner is, by virtue of enactment of the National Council for Teacher Education Act, 1993 (hereinafter referred to as the Special Act) and also by virtue of Regulation 5.2 (B) and (C) of the Notification dated 28.11.2014 (hereinafter referred to as the Special Regulation), National Council for Teacher Education (hereinafter referred to as the N.C.T.E.), the qualification required by teaching faculty for B.Ed. course, as prescribed by the N.C.T.E. would prevail. Regulation 5.2 of the Special Regulation (in that regard) read as below:
"5.2 Qualifications B. Perspectives in Education or Foundation Courses
(i) Postgraduate degree in Social Sciences with minimum 55% marks; and
(ii) M.Ed. degree from a recognised university with minimum 55% marks.
OR
(i) Postgraduate (MA) degree in Education with minimum 55% marks; and
(ii) B.Ed./B.El.Ed. degree with minimum 55% marks.
C. Curriculum and Pedagogic Courses
(i) Postgraduate degree in Sciences/Mathematics/Social Sciences/Languages with minimum 55% marks, and
(ii) M.Ed. degree with minimum 55% marks.
Desirable: PhD degree in Education with subject specialisations."
3. In face of the Special Law having been enacted and enforced, it has been submitted, the general Regulations framed by the University Grants Commission (hereinafter referred to as the U.G.C.) under Clause 1.1 of the U.G.C. Regulations On Minimum Qualifications For Appointment Of Teachers And Other Academic Staff In Universities And Colleges And Measures For The Maintenance Of Standards In Higher Education, 2018 (hereinafter referred to as the General Regulations), as notified on 18.07.2018, would remain subservient to the Special Regulation. Here, reliance has also been placed on Clause 1.1 of the General Regulations. It reads as below:
"For the purposes of direct recruitment to teaching posts in disciplines relating to university and collegiate education, interalia in the fields of health, medicine, special education, agriculture, veterinary and allied fields, technical education, teacher education, norms or standards laid down by authorities established by the relevant Act of Parliament under article 246 of the Constitution for the purpose of co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions, shall prevail."
4. To bolster the aforesaid submission, reliance has been placed on the decision of the Supreme Court in Maa Vaishno Devi Mahila Mahavidyalaya vs. State of Uttar Pradesh & Ors., (2013) 2 SCC 617.
5. Learned counsel for the respondent N.C.T.E. would also assert, Special Regulations framed by it would prevail over the General Regulations that may have been framed by the U.G.C.
6. Faced with the above situation, learned counsel for the Commission would submit, it is not an expert to determine the qualification to be prescribed. Relying on the decision of a co-ordinate bench decision of this Court in Manish Kumar Sonkar vs. State of U.P. & 3 Ors. (Writ - A No. 21220 of 2018 decided on 26.11.2018), it has been submitted, that function may be performed either by the U.G.C. or the State Government. Inasmuch as the U.G.C. has prescribed the eligibility qualification and the Commision has applied the same, there is no defect in the Advertisement.
7. Having heard learned counsel for the parties and having perused the record, in the first place, learned counsel for the Commission is right in his submission that the Commission is not an expert body to prescribe the eligibility qualifications. Also, he may not be entirely wrong in his submission that U.G.C. is one such expert that had prescribed such qualification for appointment of Lecturer, amongst others, vide issuance of the General Regulations dated 18.07.2018 (referred to above). Perusal of those Regulations does indicate that the eligibility qualifications prescribed therein had been applied in the impugned advertisement.
8. Having noticed that, it is to be seen, if the requirement of law had been met by the Commission. Here, it cannot be denied, the Special Act is also an Act of the Parliament. It was enacted to establish the N.C.T.E. with a view to achieve planned and co-ordinated development of the teacher education system through out the country and for regulation and proper maintenance of norms and standards in the teacher education system.
9. Under Section 3 of the Special Act, N.C.T.E. has been established. It consists of 13 members described therein. By virtue of Section 12 (d) read with Section 2(i) (read with Section 14) together with Section 32(d)(i) of the Special Act, it does become clear that the N.C.T.E. has been entrusted to not only recognize institutions that may impart training in teacher education but also prescribe qualifications of the teachers to be engaged at such institutions, by making the Special Regulations.
10. Therefore, the function jurisdiction of the U.G.C. as also the N.C.T.E. though overlapping, the N.C.T.E. has exclusive jurisdiction to prescribe the essential qualifications, amongst others, for teaching faculty at institutions to be recognized by it to impart teaching at B.Ed. degree courses. The Special Act is the special law as compared to the General Law governing the constitution and function of the U.G.C. under the University Grants Commission Act, 1956. It will prevail over the general law.
11. Second, there can be no doubt as that superior status of the Special Regulations. Here, that Special Regulation has also been specially referred to in Clause 1.1 of the General Regulations and thus also saved to avoid any possible conflict with the Special Regulations. In Maa Vaishno Devi Mahila Mahavidyalaya (supra), paragraph 77 observed as below:
"That being so, all State laws in regard to affiliation insofar as they are covered by the Act must give way to the operation of the provisions of the Act. To put it simply, the requirements which have been examined and the conditions which have been imposed by NCTE shall prevail and cannot be altered, re-examined or infringed under the garb of the State law. The affiliating/examining body and the State Government must abide by the proficiency and command of NCTE's directions. To give an example, existence of building, library, qualified staff, financial stability of the institution, accommodation, etc. are the subjects which are specifically covered under Section 14(3)(b) of the Act. Thus, they would not be open to re-examination by the State and the university"
12. Second, the qualification prescribed by the U.G.C. as has been notified in the impugned Advertisement is lesser than that prescribed by the N.C.T.E. Unless a person holds master degree in Social Sciences etc together with M.Ed or B.Ed degree, as the case may be, he may never be qualified to be appointed Assistant Professor (B.Ed.).
13. Consequently, the impugned Advertisement No. 51 issued by the Commission insofar as it relates to appointment of 75 posts of Assistant Professor (B.Ed.) is found to be contrary to and lesser than that enforced by the special law. Therefore, to that extent, the impugned Advertisement is contrary to the mandatory law. It is quashed (only to that extent). The Commission may proceed to refund the application money to all the affected applicants through same mode it may have received that money from the individual candidates. Such compliance may be made within a period of two weeks from today. The Commission may issue a fresh advertisement with respect to the above posts strictly in accordance with the norms of the N.C.T.E. Regulations.
14. Accordingly, the present petition is allowed. No order as to costs.
Order Date :- 9.12.2022 Prakhar