Bombay High Court
Smt. Pushpa Prithviraj Sardesai, Alias ... vs The State Of Goa & Others on 27 November, 1998
Equivalent citations: 2000(1)BOMCR429, 1999(3)MHLJ960
Author: J.A. Patil
Bench: R.K. Batta, J.A. Patil
ORDER J.A. Patil, J.
1. The petitioner was appointed as an Assistant Teacher in Shri Shantadurga High School, Bicholim on 1-7-1971. At the time of her appointment, the petitioner's qualifications were S.S.C. and H.S.S. (Hindi Shikshak Sanad). According to the petitioner, H.S.S. is a recognized qualification for teachers. In the course of her service, the petitioner passed B.A. Examination of Shivaji University, Kolhapur in April, 1993. It is the petitioner's case that she thus became a trained graduate teacher and was thus eligible for being promoted as a trained Graduate Teacher.
2. On 1-10-1993, a vacancy in the post of Asst. Teacher occurred in the said school on account of retirement of one Asst. Teacher. K. J. Thomas. The petitioner being eligible for being appointed to the said post, the school Au-thorities recommended her name to respondent No. 2 i.e. the Director of Education for promotion. However, respondent No. 2 by his letter dated 7-12-1993 informed the School Authorities that the petitioner did not possess a Degree or Diploma in Education/ teaching and that she did not fulfil the conditions of eligibility contemplated by Rule 78 of Goa, Daman and Diu School Education Rules, 1986 (hereinafter referred to as "the Rules 1986"). It was pointed out in the said letter that the petitioner was Graduate with H.S.S. and, as such, she was not eligible for being promoted as an Assistant Teacher. The petitioner has pointed out that H.S.S. is a recognized qualification for teaching and that she is the senior most under Graduate Teacher in her School and, as such, she ought to have been considered for the post of Asst. Teacher which fell vacant on the retirement of K.J. Thomas. In her affidavit, she has contended that the letter dated 7-12-1993 addressed by respondent No. 2 to the respondent No. 4 is bad in law since it violates the promises made by respondent No. 2 in various earlier circulars. The petitioner has also challenged the validity of Rule 78 of the Rules 1986. According to her, it is arbitrary, unreasonable and violative of Article 14 of the Constitution of India. She has contended that the said Rule is ultra vires the Goa, Daman and Diu School Education Act, 1984. In her affidavit, the petitioner has quoted two instances of Under Graduate Teachers, namely Mr. Nicholas Xess and Shri Ramnath Desai, who were promoted as trained Graduate Teachers, though actually both of them possessed teaching qualification of H.S.S. like the petitioner. The petitioner has, therefore, prayed for an appropriate direction to set aside the order dated 7-12-1993 issued by respondent No. 2 and Rule 78 of the Rules 1986.
3. The petition was filed on 18-12-93. Thereafter, one Shri G.R. Shetye, who is next below the petitioner in the seniority came to be appointed to the post of Asst. Teacher (Graduate Trained Teacher) on 7-8-94. The petitioner then impleaded the said G.R. Shetye as respondent No. 5. However, no relief challenging and setting aside his promotion to the said post is sought by her.
4. Shri Kansar, the learned Advocate for the petitioner submitted before us that the course of H.S.S. has been recognised by the Government as a qualification for teaching. He further submitted that initially, the petitioner was an under-graduate, but on her obtaining B.A. Degree in 1993, she qualified herself as a trained Graduate Teacher and, as such, she became eligible for being promoted to the post of Assistant Teacher. Shri Kansar submitted that the petitioner's right to claim has been wrongly denied by respondent No. 2. He contended that the order rejecting the petitioner's claim as well as Rule 78, entry No. 6 requiring Degree or Diploma in Education or Teaching as one of the essential qualifications, is arbitrary and unreasonable. Shri Kansar further pointed out that 3 teachers, namely S/Shri Nicholas Xess, Ramnath Desai and Premanand Pagi were promoted as Trained Graduate Teachers contrary to Entry No. 6 of Rule 78 of the Rules 1986.
5. Shri H.R. Bharne, the learned Government Advocate submitted before us that the Rules 1986 came into force on 19-5-1986 and, as such, they held the field on the relevant date i.e. 1-10-1993 when a vacancy of the post of Asst. Teacher (Trained Graduate Teacher) occurred in the School. Shri Bharne, pointed out that since the petitioner does not fulfil the requisite qualifications contemplated by Rule 78, Entry No. 6; she is not eligible for being promoted to the said post. As regards Shri Nicholas Xess and Ramnath Desai, Shri Bharne pointed out that they were appointed as trained Graduate Teachers prior to coming into force of the Rules.
6. Shri L.V. Talaulikar, the learned Advocate for respondents No. 3 and 4 did not make any submission as to the merits or otherwise of the petitioner's claim, but he only pointed out that the school Authorities had recommended her name for promotion.
7. Shri Bhise, the learned Advocate for respondent No. 5 submitted that the Rules 1986 are binding and, as such, the petitioner cannot claim any concession or exemption so far as question of eligibility is concerned. Shri Bhise submitted that the petitioner became graduate in April, 1993, but she did not attain the necessary teaching qualification since she did not hold either Degree or Diploma in Teaching/Education.
8. The Goa, Daman and Diu School Education Act, 1984 (hereinafter called as "the said Act") came into force on 14-11-1986. Section 11 of the said Act empowers the Government to make rules regulating the recruitment, minimum qualification for recruitment and the conditions of service of employees of recognised private schools. The first proviso to section 11(1) in substances, states that the salary, the rights in respect of leave of absence, age of retirement and pension of an employee in the employment of an existing School at the commencement of the Act shall not be varied to the disadvantage of such employee. It may be pointed out that the definition of the term "employee" as given in section 2(g) means a teacher and also includes every other employee working in a recognised School. It is material to note that the said proviso does not make any saving in so far as minimum qualification for recruitment of teachers is concerned. Section 29 of the said Act gives similar powers of making rules to the Administrator for carrying out purposes of the said Act. Sub-section (2) enumerates various matters in respect of which the Administrator is empowered to make rules. Clause (g) is one of such matters, which deals with the minimum qualifications and method of recruitment and the terms and conditions of service of employees. In exercise of powers granted under section 29, the Administrator has made the Rules 1986. Rule 78 prescribes minimum qualifications for appointment of teaching staff. For our purposes, Entry at Sr. No. 6 is relevant and it reads as under :
Sr. No Name of the Post Qualifications for Direct Recruits Qualifications for promotees Pay Scales subject to revision Upper age limit Qualifications
1.
2.
3.
4.
5.
6.
6. Asst. Trs./Jr. Instructors (i.e. Trained graduate Trs.) 30 years
(i) A degree from a recognised University;
Undergraduate teachers working in the secondary Schools having 3 yrs. service in the grade and possessing qualifications prescribed for direct recruits in Col. No. (4) Failing which an undergra-duate teacher possessing a Degree from a recognised University and a Diplo ma in Educa-tion (2 yrs. course) and having 5 yers experience out of which at least 3yrs. experience after obtaing Diploma in education.
1400-2600.
(ii) A Degree in Education/ Teaching from a recognised University.
It will thus be seen that in order to be eligible for being promoted to the post of Trained Graduate Teacher, an untrained graduate teacher is required to have 3 years experience in Secondary School, in addition to the requisite qualification of a degree from a recognised University and a degree in education/teaching from a recognised University is necessary. However, if no such under graduate teacher is available, an under-graduate teacher possessing a degree of recognised University with a Diploma in Education (2 years course) with 5 years experience is eligible for being considered for promotion to the post of trained graduate teacher. Further, out of his 5 years experience, 3 years experience must have been after obtaining Diploma in Education. In the instant case, the petitioner was appointed long back in 1971 and, as such, she has a total experience of teaching over 24 years. She is also a graduate from a recognised University. However, admittedly, she does not possess any degree or diploma in education/teaching as contemplated by column 5 of Entry No. 6. Shri Kansar submitted that the certificate course of H.S.S. has been recognised as teaching qualification and for this purpose, he referred to a Circular dated 9-3-1970 issued by the Director of Education, which, inter alia, states that those who are mainly teachers of Hindi should be deputed for H.S.S. at the required level. It may, however, be noted that the H.S.S. course which the petitioner has done, is only of 6 months duration; whereas the Diploma in Education contemplated by entry No. 6 is of 2 years course. It is, therefore, obvious from the qualification prescribed for the promotees by entry No. 6 of Rule 78 that the petitioner does not fulfill one of the conditions, namely Degree or Diploma in Education. Therefore, as per entry No. 6, she is not eligible for being considered for promotion to the post of trained graduate teacher. Prescribing a higher qualification for promotion than the one earlier fixed, does not offend the rights of an employee saved by the first proviso to section 11 of the Act.
9. Shri Kansar then contended before us that so far as the nature of work which the trained graduate teachers and un-trained graduate teachers in the Secondary Schools are required to do, there is no difference. He pointed out that the petitioner has to her credit the teaching experience of more than 24 years, and, as such, she is capable of discharging the teaching work which a trained graduate teacher is expected to do. In support of his submission, Shri Kansar relied upon the decision in Food Corporation of India etc. etc. v. Om Prakash Sharma & others, 1998(4) Services Law Reporter 788. In the said case, the facts were that the amendments to the Food Corporation of India (Staff) Regulations, 1971 were made, whereby the distinction between the graduates and non-graduates for the purpose of promotion to the post of Assistant Grade I and Grade II was made. The graduates were made eligible for promotion after 3 years' of experience, while the under-graduates would require 5 years service to be eligible for promotion. The Supreme Court found that in the affidavit filed on behalf of the Food Corporation of India, no at-tempt was made to show that the nature of work in the post of Assistant Grade I or Assistant Grade II was such that it required higher efficiency which could be expected only from graduates and not from non-graduates. The Supreme Court thus found that there was nothing to establish a nexus between the amendments and the alleged object of higher efficiency in the promotional posts of Assistant Grade I or Assistant Grade II. In the light of these facts, the Supreme Court proceeded to strike down the amendments in the regulation as unconstitutional. In our opinion, on facts, the said decision cannot be applied to the case of the petitioner. The petitioner is, no doubt, a graduate in Hindi subject, however, that does not by itself mean that she possesses the requisite teaching qualifications. The certificate of H.S.S. produced at page 17 specifies that the petitioner is eligible to teach Hindi in Standards Vth, VIth and VIIth as per the Rules. It is, therefore, obvious that the petitioner does not possess any Diploma or Degree which enables the petitioner to teach upper classes i.e. standards VIIIth, IXth and Xth. The petitioner can acquire the requisite qualifications only if she obtains a degree or diploma in Education/Teaching. In that event, she would fulfil both the conditions of eligibility contemplated by entry No. 6 in Rule 78. Since she does not fulfil the second condition, she is not eligible for being promoted to the post of trained graduate teacher.
10. So far as the challenge to Rule 78 of the Rules 1986 is concerned, we do not find any merit in the same. There is nothing arbitrary or unreasonable in the same. The object of prescribing the qualifications of degree or diploma in education/teaching clearly appears to be for the purpose of enabling the teachers to teach their respective subject; with proficiency and technique. A teacher may be possessing a Master's Degree in a particular subject and may have vast knowledge of his subject. That does not, however, mean that he is capable of teaching the students and imparting the knowledge in the said subject. Teaching is an art, which can be attained mainly by understanding the proper technique which is available if one obtains a degree or diploma in teaching. We are, therefore, not inclined to accept the challenge given by the petitioner in the validity of Rule 78 of the Rules 1986.
11. Shri Bhise, the learned Advocate for respondent No. 5 drew our attention to an un-reported Judgment of Division Bench, presided over by G.D. Kamat & Dr. E.S. Da Silva, JJ., in P.R. Shirgaonkar v. The Director of Education and others, Writ Petition 624/93. In that case, the petitioner was holding a Master's Degree in Arts and had made a claim for promotion to the post of Assistant Headmaster. She did not possess any degree or diploma in education/teaching. She, however, possessed the qualification which is known as 'Visharad' and 'Sahitya Ratna' of Hindi Sahitya Sammelan of Allahabad. The Division Bench, however, rejected the petitioner's claim holding that in the absence of any degree in teaching or education, the petitioner was not eligible to be promoted as Assistant Head Master. In our opinion, this decision covers the issue which is raised in the present petition. Therefore, we find that there is no merit in the petitioner's claim for being promoted to the post of trained graduate teacher.
12. The petitioner has pointed out two or three instances in which, according to her, promotions were made contrary to the requirements of eligibility contemplated by entry No. 6 of Rule 78. It is not disputed before us that two teachers, namely Mr. Nicholas Xess and Ramnath Desai working in the same School were appointed to the post of Assistant Teacher (trained graduate teachers) even though they held qualification of H.S.S. However, in the additional affidavit filed by respondent No. 2, it is pointed out that they were appointed on 26-10-1968 and 10-7-1971 respectively, i.e. much before the Rules 1986 came into force. Therefore, the citation of these two instances does not, in any way, further the petitioner's claim for promotion to the graduate category. In her affidavit-n-rejoinder, the petitioner has referred to the case of one Premanand Pagi, who according to her, holds training qualifications of Hindi Shikshan Parangat. However, the petitioner's contention in this respect cannot be accepted as respondent No. 2 Smt. Suman Pednekar has pointed out in her affidavit that said Premanand Pagi is B.A. D.Ed. It is, therefore, obvious that he fulfils the requisite qualifications of eligibility contemplated by entry No. 6 of the Rules 1986. The petitioner has, then referred to the case of one Mrs. Sharvari Jatnar and pointed out that her training qualification was only T.T.C. and yet she was promoted to graduate scale in Navadurga Vidyalaya Madkai. It is, however, pointed out on behalf of respondent No. 2 that T.T.C. is 2 years course and the same is treated as equivalent to D.Ed. In this respect, respondent No. 2 has produced a circular dated 17-3-93, which states that the teachers holding T.T.C. (2 years course) shall be eligible under the Rules, 1986.
13. We, thus, find that the petitioner is not eligible for being promoted in the category of trained graduate teacher and as such, her claim to that post has been rightly rejected by respondent No. 2. We also find that there is no merit in the challenge given to the entry No. 6, Rule 78 of the Rules 1986. Therefore, the petition deserves to be dismissed. Accordingly, we dismiss the petition with no order as to costs. Rule is accordingly discharged.
14. Petition dismissed.