Gujarat High Court
State Of Gujarat & 3 vs Roz Dineshbhai Sevabhai & on 1 December, 2014
Author: Jayant Patel
Bench: Jayant Patel, C.L. Soni
C/LPA/296/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 296 of 2014
In
SPECIAL CIVIL APPLICATION NO. 2615 of 2012
With
CIVIL APPLICATION NO. 2246 of 2014
In
LETTERS PATENT APPEAL NO. 296 of 2014
With
LETTERS PATENT APPEAL NO. 211 of 2013
In
SPECIAL CIVIL APPLICATION NO. 2662 of 2012
With
CIVIL APPLICATION NO. 2210 of 2013
In
LETTERS PATENT APPEAL NO. 211 of 2013
With
LETTERS PATENT APPEAL NO. 201 of 2013
In
SPECIAL CIVIL APPLICATION NO. 2970 of 2012
With
CIVIL APPLICATION NO. 2174 of 2013
In
LETTERS PATENT APPEAL NO. 201 of 2013
With
LETTERS PATENT APPEAL NO. 1636 of 2012
In
SPECIAL CIVIL APPLICATION NO. 2782 of 2012
With
LETTERS PATENT APPEAL NO. 1638 of 2012
In
SPECIAL CIVIL APPLICATION NO. 2474 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL Sd/-
and
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
=========================================
1 Whether Reporters of Local Papers may be allowed to see the No judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment No ?
4 Whether this case involves a substantial question of law as to the No interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No Page 1 of 24 C/LPA/296/2014 CAV JUDGMENT ================================================================ STATE OF GUJARAT & 3 Versus ROZ DINESHBHAI SEVABHAI & 1 ================================================================ Appearance:
MR PP BANAJI, ASSTT GOVT PLEADER for the Appellants MR SHALIN MEHTA, SR ADVOCATE with MS VIDHI BHATT, ADVOCATE, MR SP MAJMUDAR, ADVOCATE for Respondents in respective appeals. ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE C.L. SONI Date : 01/12/2014 COMMON CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE C.L. SONI)
1. These appeals filed under Clause 15 of the Letters Patent are against the common judgment dated 8.5.2012 delivered by learned Single Judge in the petitions preferred by the respondents under Article 226 of the Constitution of India.
2. The respondents have made following main prayers in their petitions:-
(b) To quash and set aside the recruitment of Bachelor's Degree even from the candidates possessing PTC qualification for appointment to the posts of Head Teachers as laid down in the Government Notification dated 18.1.2012 at Annexure-
G, and the consequential similar requirement for appearing at the Head Teachers Aptitude Test (HTAT);
(c) To hold and declare that the petitioners who have passed SSC/HSC and PTC examinations and who were appointed as Primary Teachers and as Head Teachers as per the relevant Recruitment Rules are eligible and qualified to be appointed as Head Teachers by way of promotion and by direct recruitment on the 5000 posts of Head Teachers to be filled up pursuant to the GR dated 22.6.2011 at Annexure-F Page 2 of 24 C/LPA/296/2014 CAV JUDGMENT hereto and the respondents be directed to consider the petitioners as eligible for the same and to give them appointments accordingly;
(d) to restrain the respondents from filling up the 5000 posts of Head Teachers pursuant to the G.R. Dated 22.6.2011 without first considering the petitioners as eligible and qualified for the said posts;
3. The case of the respondents is that they were appointed as Primary Teachers as per the Gujarat Panchayat Service (Recruitment of Primary Teachers) Rules, 1970 (Rules of 1970). They have been discharging their duties as Primary Teachers and Head Teachers. They have completed more than 20 years of services and presently they are in the pay scale of Rs.9300-34800. There is no separate cadre and separate pay scale for the post of Head Teacher. Head Teachers are appointed as per the seniority and are paid only the Headmasters allowances.
4. It is their further case that pursuant to the Right of Children to Free and Compulsory Education Act, 2009 ('Free Education Act'), primary education is divided into two sections, i.e. Lower Primary School (Std. 1 to 5) and Upper Primary School (Std.6 to 8). The State Government accordingly amended the Bombay (now Gujarat) Primary Education Act, 1947 ('the State Act') by amending the Act of Gujarat Education Laws (Amendment) Act, 2010. The State Government then issued Government Resolution dated 22.6.2011, whereby it decided to create 5000 posts of Head Teacher for Primary Schools in the pay scale of Rs.9300-34800. As per the said Government Resolutions, 2500 posts are to be filled in by direct selection and remaining 2500 posts are to be filled in by promotion. The Government, thereafter, made the Head Teacher, Class-III in the Subordinate Service of Directorate of Primary Education or respective District or Municipal Primary Education Committee Recruitment Rules, 2012 ('the Rules of 2012') vide notification dated 18.1.2012. The Government also issued Page 3 of 24 C/LPA/296/2014 CAV JUDGMENT Government Resolution dated 18.1.2012 laying down the Rules for Head Teachers Aptitude Test. Advertisement dated 1.2.2012 was then issued for holding the Head Teachers Aptitude Test (HTAT). As per the Rules of 2012, the qualification of Bachelor Degree is required over and above the qualification of PTC (Primary Teacher Certificate). Because of the requirement of such degree qualification, the petitioners and other large number of primary teachers who do not hold such qualification are excluded from competing for the newly created 5000 posts.
5. Learned Single Judge decided the petitions of the respondents herein with other petitions where the challenge was made to the validity of the Rules of 2012 to the upper age limit fixed therein, to the restriction on consideration of experience only in specified institutions and to the provisions for considering only salary accounts as conclusive proof to determine the experience of primary teachers.
6. Learned Single Judge has not accepted the challenge to the Rules of 2012 and also not accepted the challenge to the restrictions as regards consideration of experience only of the specified institutions. Learned Single Judge, however, has held that determination of experience should not be only on salary accounts of the teachers and directed the State to consider other documents also as evidence if produced by the candidates. Against the part of the judgment not accepting the above challenges by learned Single Judge, the petitioners of other petitions had preferred Letters Patent Appeal No.848 of 2012 and allied matters which came to be disposed of by order dated 29.8.2012. In respect of the prayers made by the respondents, learned Single Judge has observed that the minimum qualification for appointment of Primary Teachers in lower Primary School is still the same, i.e. SSC/ HSC with PTC, whereas the change is brought in for upper primary school by providing Bachelor Degree Page 4 of 24 C/LPA/296/2014 CAV JUDGMENT as minimum qualification and this difference in minimum qualification for appointment of primary teachers in two primary sections has been ignored while making Rules of 2012, particularly Rule 2(a) (iii) and Rule 4(b). Learned Single Judge has observed that the provision for Bachelor Degree for appointment as Head Teachers is in conformity with the minimum qualification prescribed by National Council for Teachers Education (NCTE) for feeder post of primary teachers in upper primary level. However, it violates the Central Act and the NCTE Regulation for appointment of Head Teachers in lower primary level. Learned Single Judge has thus held that the provision under Rule 4(b)(1) which prescribes requirement of Bachelor Degree as minimum qualification for the post of Head Teacher is unsustainable as being arbitrary and unreasonable. The said provision is thus set aside by learned Single Judge leaving it open to the State to prescribe appropriate minimum qualification for the post of Head Teacher in lower primary school by keeping in focus the clear distinction and division of primary school in two different sections made by the Central Act.
7. We have heard learned advocates for the parties.
8. Learned Assistant Government Pleader Mr. P.P. Banaji appearing for the appellants submitted that after the Free Education Act, for the first time, the State has created 5000 posts of Head Teacher with pay scale. Mr. Banaji submitted that earlier, senior most teacher was being asked to perform the duty as Head Teacher by giving him Head Teacher allowances. Mr. Banaji submitted that in order to ensure that the object and purpose of Free Education Act is well served, the Government decided to create posts of Head Teacher as required by Free Education Act and also brought in force the Rules for filling such posts of Head Teacher. Mr. Banaji submitted that to enhance the standard of elementary education, the Free Education Page 5 of 24 C/LPA/296/2014 CAV JUDGMENT Act has required laying of minimum qualification for primary teachers by specified authority and NCTE is such authority which has laid down the minimum qualification for primary teachers for both primary sections and considering such change in requirement of qualification for primary teachers and to give better elementary education, the Government has decided to fill in the posts of Head Teacher only with candidates having minimum higher qualification as prescribed by the Rules. Mr. Banaji submitted that the Head Teachers are required to discharge additional responsibility and therefore, the Government is justified in prescribing the degree qualification as minimum for the posts of Head Teacher. Mr. Banaji submitted that creation of the posts, prescription of the pay scale, laying down the Recruitment Rules, providing for qualification and other eligibility criteria are all within the domain of the State authorities and unless such Rules violate the constitutional provisions or any statute or statutory Rules, they would hold good for the recruitment purpose and simply because such Rules affect the future chances of promotion of the employees, the same cannot be held as bad in law.
9. Mr. Banaji has relied on following decision(s):-
[1] In the case of Namit Sharma Vs. Union of India reported in (2013)1 SCC 745;
10. As against the above arguments, learned senior advocate Mr. Shalin Mehta appearing with Ms. Vidhi Bhatt and learned advocate Mr. S.P. Majmudar for the respondents in the respective appeals submitted that in view of the Free Education Act, when minimum qualification for appointment of primary teachers in lower and upper primary school is not the same, such difference in minimum qualification could not have been ignored while making the rules for appointment for the posts of Head Teacher. They submitted that the respondents have been discharging their duties as Head Teachers Page 6 of 24 C/LPA/296/2014 CAV JUDGMENT and requirement of minimum qualification of degree education for filling in the posts of Head Teacher created by the State Government would deprive them from competing for appointment as Head Teachers, especially when they are well experienced for the posts of Head Teacher. They submitted that there appears to be no rational for providing qualification of degree for appointment of Head Teachers even for lower primary schools as by such provision of qualification of degree for lower primary level, no object is sought to be achieved. They submitted that there is no much difference between the duties of primary teachers and the Head Teachers and therefore, laying down of minimum qualification of degree for appointment to the posts of Head Teacher in lower primary school may result into excluding many experienced primary teachers aspiring for the posts of Head Teacher. They submitted that in fact, the provision of degree qualification made in the Rules of 2012 creates a class amongst the class inasmuch as the primary teachers serving in primary schools will be divided into two different classes on account of prescription of degree qualification in the Rules and only one class of primary teachers having degree qualification will be eligible for consideration to the posts of Head Teacher. Such would violate not only the Central Act and NCTE Regulations but would also violate Articles 14 and 16 of the Constitution of India. They submitted that Rule 4(b)(i) of the Rules 2012 completely bars the promotion chances of Head Teachers in lower primary schools to the existing teachers who do not hold the requisite qualification as no ratio is prescribed for the teachers to avail of promotion benefits.
11. They relied on following decisions:-
[1] In the case of P. Murugesan and others Vs. State of Tamil Nadu and others reported in (1993)2 SCC 340;
[2] In the case of Food Corporation of India and others Vs. Om Prakash Sharma and others reported in (1998)7 SCC 676;Page 7 of 24 C/LPA/296/2014 CAV JUDGMENT
12. We find that the primary education in the State of Gujarat has been regulated by the State Act. Appointment of primary teachers was governed by the Rules of 1970. Primary education compromised of classes I to VII. Qualification required as per the Rules of 1970 was that a candidate should have passed one of the following qualifying examinations as mentioned in Schedule-I:
(1) Secondary School Certificate Examination of Gujarat Secondary School Certificate Board together with certificate of Primary Teachers' Certificate Examination;
(2) Primary School Certificate Examination together with a
Certificate of Primary Teacher's Certificate
Examination;
(3) Lok Shala Certificate Examination together with a
Certificate of Primary Teacher's Certificate
Examination.
13. It appears that the NCTE had earlier issued regulations called as National Council for Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulations, 2001. Under the said regulation, qualification for appointment of primary teachers in two different sections, i.e. lower primary and upper primary was provided. Thus, the elementary education was divided into two sections, i.e. primary and upper primary (Middle School Section) and required qualifications as per the regulation as stated in the decision of the Full Bench in the case of Sudip Tripathi and Anr. Vs. State of Gujarat and Ors. reported in 2007(1) GLH 590 was as under:-
Elementary
(a) Primary : (i) Senior Secondary School Certificate or Intermediate or its equivalent; and
(ii) Diploma or certificate in basic teachers' training of a duration of not less than two years.Page 8 of 24 C/LPA/296/2014 CAV JUDGMENT
OR Bachelor of Elementary Education B.El.Ed.)
(a) Upper Primary : (i) Senior Secondary School Certificate or (Middle School Intermediate or its equivalent; and Section)
(ii) Diploma or certificate in elementary teachers training of a duration of not less than two years.
OR Bachelor of Elementary Education B.El.Ed.) OR Graduate with Bachelor of Education (B.Ed.) or its equivalent.
14. However, so far as the State Government is concerned, the primary education continued to comprise of Std. 1 to 7 and as held by the Full Bench, minimum qualification required was of PTC.
15. By the Free Education Act, elementary education (primary education) was extended upto 8th Class. Such elementary education is divided in two sections, i.e. 1st to 5th Class and 6th to 8th Class. The teachers pupil ratio is also fixed by the said Act. The State Government is required to ensure that the pupil teachers ratio as specified by the Free Education Act is maintained in each school. The Schedule of Free Education Act providing for such ratio also provides for appointment of Head Teachers in primary school of 1 st to 5th Class and also in primary school of 6th to 8th Class when the strength of the students mentioned in the Schedule requires for such appointment.
16. To comply with the provisions of the Free Education Act, the State Government enacted the Gujarat Education Laws (Amendment) Act, 2010 to amend the State Act. Now, as per the amendment, 1 st to 5th Std. is known as lower primary education and 6th to 8th Std. is known as upper primary education. Section 23 of the State Act also stood amended, sub-section (3) thereof provides that selection of the Page 9 of 24 C/LPA/296/2014 CAV JUDGMENT candidates for appointment on different posts, including the posts of primary teachers, shall be in accordance with the instructions issued by the State Government.
17. It appears that as required by Rule 17 of the Right of Children to Free and Compulsory Education Rules, 2007 ('RTE Rules') and Section 23 of the Free education Act, the NCTE, which is the authority competent to prescribe minimum qualification for the teachers, has issued notification dated 23.8.2010 prescribing the minimum qualification for appointment as teachers in 1st to 5th Class and 6th to 8th Class. Learned Single Judge has reproduced such prescribed qualification in para 12.6 of the impugned judgment.
18. Learned Single Judge has observed that minimum qualification for appointment of primary teacher in lower primary school is still the same, i.e. SSC/HSC with PTC. But, it does not appear to be so. What was earlier required by the Rules of 1970 was of passing any of three examinations, one of which was Secondary School Certification examination with Certificate of Primary Teacher Certification examination for the entire primary section, i.e. from Std. 1st to Std. 7th. However, as per the notification dated 23.8.2010 of the NCTE, the minimum qualification required for lower primary section is definitely higher than the earlier qualification. In earlier Rules, there was no requirement of passing the examination with minimum marks and no requirement of passing the Teachers Eligibility Test (TET). Therefore, it clearly appears that to bring up the standard of elementary education, even at lower primary level, the higher qualification for the post of primary teacher is required. At this stage, it is required to be mentioned that one of the alternative qualifications, i.e. senior secondary (or its equivalent) with at least 50% marks and 4 year Bachelor Degree in Elementary Education required as minimum qualification for appointment in upper primary level is the same even Page 10 of 24 C/LPA/296/2014 CAV JUDGMENT for the appointment as teacher in lower primary level.
19. In the State Act, there is no provision for separate and distinct post of Head Teacher. However, separate duties for primary teachers and Head Teacher are mentioned in Rule 70 of the Bombay Primary Education Rules, 1949. It appears that the Head Teacher are required to take somewhat higher responsibility than the teachers. However, the Head Teacher's post was not separately created. It was from amongst the primary teachers, the senior most teacher was asked to perform the duty of Head Teacher by paying some extra allowances.
20. Now, on account of the Free Education Act, the Government has created 5000 posts of Head Teacher. It does not appear from the Government Resolution dated 22.6.2011 that the posts of Head Teacher are differently created for two different primary sections. What is mentioned therein is that on account of change brought in the Primary Education by the Free Education Act, to uplift the standard of primary education, the posts of Head Teacher and teachers in the subjects of Maths, Science and English are required to be created and therefore, 5000 posts of Head Teacher in the pay scale of Rs.9300-34800 and 10000 posts of Vidhyasahayaks in the pay scale of Rs.5200-20200 are decided to be created with effect from 1.4.2011. The pay scale for such Head Teachers to be appointed in primary schools is the same. The Rules framed vide notification dated 18.1.2012 annexed with the petitions are to regulate the recruitment of such Head Teachers. The Rules provide for appointment to the post of Head Teachers by promotion and direct selection in equal ratio. The grievance of the respondents is mainly against making the provision of minimum qualification of Bachelor degree for the post of Head Teacher. Sub-Rule 2 to 4 read as under:-
2. Appointment to the post of Head Teacher, Class III, in the Page 11 of 24 C/LPA/296/2014 CAV JUDGMENT subordinate service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee, shall be made either,-
(a) by promotion of a person of proved merit and efficiency from amongst the persons who,-
(i) have worked for not less than five years in the cadre of Primary Teacher, Class III, in the subordinate service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee;
(ii) have passed the qualifying examination for Computer Knowledge in accordance with the provisions of the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006;
(iii) possess the educational qualifications as prescribed in clause (b) of rule 4 for direct selection; and
(iv) have passed the Head Teachers Aptitude Test as may be prescribed by the Government:
Provided that where the appointing authority is satisfied that a person having the experience specified in sub-clause (i) is not available for promotion and that it is necessary in the public interest to fill up the post by promotion even of a person having experience for a lesser period; it may, for reasons to be recorded in writing, promote such person who possesses experience of a period of not less than two third of the period specified in sub-
clause (i); or
(b) by direct selection.
3. The appointments by promotion and direct selection shall be made in the ratio of 1:1.
4. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall,-
(a) not be more than 35 years of age:
Provided that the upper age limit may be relaxed in favour of a candidate who belongs to the Scheduled castes, Scheduled Tribes or Socially and Educationally Backward Classes or Women in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967:
Provided further that the upper age limit may be relaxed in favour of a candidate who is in the service of the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967.
(b) (1) possess a bachelor degree obtained from any of the Universities or Institutions established or incorporated by or under the Central or State Act in India or any other educational institution recognized as such by the Government or declared as deemed University under Section 3 of the University Grants Commission Act, 1956;
and Page 12 of 24 C/LPA/296/2014 CAV JUDGMENT
(i) have completed two years certificate course of Primary Teachers Course of any of the Educational Institution recognized by the Government; or
(ii) possess one year degree in special education obtained from any of the Universities or Institutions established or incorporated by or under the Central or State Act in India or any other educational institution recognized as such by the Government or declared as deemed University under Section 3 of the University Grants Commission Act, 1956; or
(iii) possess a degree in education obtained from any of the Universities or Institutions established or incorporated by or under the Central or State Act in India or any other educational institution recognized as such by the Government or declared as deemed University under Section 3 of the University Grants Commission Act, 1956; or (2) have passed Higher Secondary Certificate Examination from the Secondary and Higher Secondary Education Board; and possess,-
(i) a four years bachelor degree in Elementary Education obtained from any of the Universities or Institutions established or incorporated by or under the Central or State Act or any other educational institution recognized as such by the Government or declared as deemed University under section 3 of the University Grants Commission Act, 1956; or
(ii) a four years bachelor degree in education from any of the Universities or Institutions established or incorporated by or under the Central or State Act in India or any other Educational Institution recognized as such by the Government or declared as deemed University under section 3 of the University Grants Commission Act, 1956; or
(c) have passed the Head Teachers Aptitude Test as may be prescribed by the government;
(d) have atleast five years separate or combined experience of teaching as a Teacher or Vidhya Sahayak in Government or Grant in Aid or Non Grant in Aid Private Lower Primary School or Upper Primary School or Secondary Education School or Higher Secondary Education School or Primary Education Adhyapan Mandir or District Institute of Education and Training ( DIET);
(e) possess the basic Knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967; and
(f) possess adequate knowledge of Gujarati or Hindi or both."
21. It is required to be noted that the learned Single Judge has in terms held that the Rules of 2012 made in exercise of the powers under Section 23(3) of the State Act cannot be declared as ultra vires Page 13 of 24 C/LPA/296/2014 CAV JUDGMENT to Section 63 and Section 23(3) of the State Act and objection against validity of the Rules was rejected. Learned Single Judge, however, has held that the Rules of 2012 do not enjoy the status of statutory Rules and they are being treated and construed as 'Instructions' issued under Section 23(3) of the State Act for the purpose of selection process. Learned Single Judge has also observed that if NCTE has prescribed the minimum qualification for any post, then any other authority, including the State Government, cannot prescribe any other or different qualification. However, if NCTE has not prescribed qualification for any post then until NCTE prescribes qualification for such post, the State Government may if it becomes necessary prescribe qualification for such post to fill the void. Learned Single Judge has further held that qualification for Head Teachers prescribed by Rules of 2012 insofar as upper primary level is concerned, it is inconformity with the minimum qualification prescribed by NCTE for the post of Primary teachers. However, learned Single Judge has held that since the minimum qualification of graduation prescribed for the post of Head Teachers for lower primary level is not inconformity with the minimum qualification laid down by NCTE for the post of Primary teachers, the same is required to be set aside.
22. As observed earlier, the post of Head Teacher was never created in primary school but a senior most teacher was asked to discharge the duty of Head Teacher. It is for the first time in 2011, the Government created the posts of Head Teacher with pay scale. For recruitment to such posts of Head Teachers, no separate statutory Rules like the Rules of 1970 were available or in force. In absence of such statutory Rules for appointment to the post of Head Teachers, the Government was justified in framing the rules in exercise of the powers under Section 23 of the State Act. Learned Single Judge has also observed that in absence of the statutory Rules, Page 14 of 24 C/LPA/296/2014 CAV JUDGMENT there cannot be any vacuum or void. Therefore, learned Single Judge has held that the Rules of 2012 are validly made though the same are described and termed as instructions in absence of the statutory Rules. In absence of statutory rules, the Rules of 2012 called as Instructions can govern the field for the purpose of appointment to the posts of Head Teacher by any of the modes, either by promotion or by direct selection. If the Government was otherwise authorized to make such rules regulating the recruitment to the posts of Head Teacher and if such rules are not held to be in derogation or in contravention of the constitutional provision or any statutory provision, it is no ground to say that such rules for the purpose of prescription of qualification of degree for the post of Head Teacher in lower primary level may not be followed. When the Government decided to create the posts of Head Teacher and to make rules for recruitment to the posts of Head Teacher, it was entirely for the Government to prescribe the requisite qualification. What qualification is needed for a particular post is entirely within the domain of Government. The Court will have limited judicial review over the decision of the State of prescribing the minimum qualification for a particular post. It is not correct to say that the prescription of qualification of degree for the posts of Head Teacher in lower primary school is contrary to NCTE Regulations and the Free Education Act. The minimum qualification prescribed by NCTE as required by the Free Education Act is for the post of Primary Teacher and not for the Head Teacher. It cannot be lost sight of that the Free Education Act mandatorily requires to have Head Teachers in primary schools and prescription of minimum qualification for Head Teachers is not laid down anywhere. The Free Education Act and NCTE both aim at securing better standard of elementary education. To achieve such object and purpose, if the State Government has provided for minimum qualification of graduation for appointment of Head Page 15 of 24 C/LPA/296/2014 CAV JUDGMENT Teacher, it could be said that it is in consonance with the object and purpose of the Free Education Act. The duties of Head Teachers as stated above are much higher in responsibility than the duties of Primary Teachers as could be gathered from Rule 70 of the Rules of 1949 and as mentioned in Schedule-E of the said Rules.
23. However, we find substance in the arguments of learned advocates for the respondents that some ratio should have been provided for promotion between the primary teachers not holding graduate qualification and primary teachers holding graduate qualification in the Rules of 2012.
24. We find that as per the Rules of 2012, though the posts of Head Teachers are to be filled in by promotion and direct recruitment in equal ratio, however in either case, the existing teacher with experience but without requisite qualification will never reach to the post of Head Teacher and will remain stagnated.
25. In the case of P. Murugesan (supra), the Hon'ble Supreme Court has held that where direct recruits and promotees are integrated into a common class, they could for purposes of promotion to the higher cadre be classified on the basis of educational qualifications. When the rules can be framed barring altogether the diploma-holders from promotion, the rule making authority cannot be precluded from restricting the promotion. The rule making authority may be of the opinion, having regard to the efficiency of the administration and other relevant circumstances, that while it is not necessary to bar the diploma-holders from promotion altogether, their chances of promotion should be restricted.
26. Similarly, in the case of T.R. Kothandaraman and others Vs. Tamil Nadu Water Supply & Drainage BD and others reported in (1994)6 SCC 282, the Hon'ble Supreme Court has held and observed Page 16 of 24 C/LPA/296/2014 CAV JUDGMENT in para 16 as under:-
"16. From what has been stated above, the following legal propositions emerge regarding educational qualification being a basis of classification relating to promotion in public service:
(1) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case.
(2) Higher educational qualification can be the basis not only for barring promotion, but also for restricting the scope of promotion.
(3) Restrictions placed cannot however go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. Reasons for this are being indicated later."
In the above said case, ratio of 3:2 between degree holder and diploma holder for promotion was held reasonable and not violative of Articles 14 and 16 of the Constitution of India.
27. The above decision in the case of T.R. Kothandaraman (supra) was considered by the Hon'ble Supreme Court in the case of P.A. Chandran and Others Vs. Board of Revenue (Excise) and Others reported in 1995 Supp (1) SCC 159, wherein the point for determination was whether prescription of ratio of 1:1 for promotion to the post of Excise Preventive Officer from Excise Guard as between those who possess the qualification of SSLC (Secondary School Leaving Certificate) and those who do not possess this qualification, is constitutionally infirm. The Hon'ble Supreme Court has held and observed in para 4 to 6 as under:-
4. As to the aforesaid contention we would state that in Abdul Basheer case this Court regarded the ratio in question as discriminatory as the history did not point out if the two categories of incumbents were treated differently, as has been pointed Out in para 7 of the judgment in Kothandaraman. The decision in Abdul Basheer case cannot, however, assist the non-S.S.L.C. Excise Guards because there are material on record in the present cases to show that ever since the Kerala State was formed (1-11- 1956), the Excise Preventive Officers were required to have educational qualification similar to that of S.S.L.C. This would be apparent from the fact that after the formation of the State, by issuing executive Page 17 of 24 C/LPA/296/2014 CAV JUDGMENT orders it was prescribed that for promotion to the cadre of Excise Preventive Officers the incumbents must have the minimum educational qualification of E.S.L.C. or S.S.L.C. This had been done by G.O. dated 23-8-1957, a copy of which is at Annexure A-4 to the appeal arising out of SLP (C) No. 12398 of 1987. Thereafter G.O. dated 14-8-1959 (Annexure A5) was issued in which also the minimum educational qualification for promotion of Excise Guards to the cadre of Preventive Officer was mentioned as E.S.L.C. or S.S.L.C. Then came G.O. of 2-3-1965 (Annexure A-6) which provided the ratio of 1:1 between Excise Guards possessing S.S.L.C. qualification with minimum service of 3 years and non-
S.S.L.C. Excise Guards with minimum service of 15 years. There is still another order dated 29-2-1968 as at Annexure A-7 which is by and large to the same effect. Thereafter came to be framed the statutory rules at hand named as Special Rules for the Kerala Excise and Prohibition Subordinate Service, in which, while maintaining the ratio as earlier, the experience qualification was reduced to 7 years in so far as non-S.S.L.C. Excise Guards are concerned.
5. This shows that historically the post of Excise Preventive Officer was required to be manned by Excise Guards having the minimum qualification of S.S.L.C.. It is because of this that Abdul Basheer case cannot be called in aid by the non-S.S.L.C. Excise Guards inasmuch as their history did not point out to different treatment being given to the two categories, whereas the position is different here.
6. We may deal with still another contention which has been advanced by Shri Sanghi appearing for some of the respondents- the same being that after 7 years of service experience, the non- S.S.L.C. Excise Guards come on a par with those Excise Guards who have S.S.L.C. as their educational qualification and have rendered 3 years of service. According to the learned counsel, the denial of the posts of Excise Preventive Officers to those non- S.S.L.C. Excise Guards who after serving 7 years have become eligible for promotion to the posts of Excise Preventive Officers would not be permissible. We are impressed with this submission because what the laying down of ratio does is postponement of the chances of promotion and not the denial of promotion as such. By providing the ratio of 1:1 the rule really gives the two categories equal opportunity, though the effect is that some non- S.S.L.C. Excise Guards, even if they are senior to S.S.L.C. Excise Guards,may get promoted to the higher post later, if the post to fall vacant be one meant for S.S.L.C. qualified Excise Guards. The seniormost non-S.S.L.C. Excise Guards would, in such an eventuality, be promoted to the next vacancy as that would be meant for such an incumbent. Thus, the chance of promotion of non-S.S.L.C. Excise Guards get only deferred and not denied. It is a settled law that promotion cannot be claimed with the aid of Article 16 inasmuch as no incumbent has a right to be promoted and it is because of this a chance of promotion has not been regarded as encompassed within the right visualized by Article 16.
28. In the present case, until the Rules of 2012 were framed, the posts of Head Teacher were manned by primary teachers with same qualification required for appointment of primary teacher. Now, such Page 18 of 24 C/LPA/296/2014 CAV JUDGMENT primary teachers are totally excluded from consideration for promotion on the ground that they do not possess the higher qualification. For such teachers, instead of barring total promotion, some restricted scope could have been provided with further requirement of more experience for their consideration for promotion.
29. In the case of Kuldeep Kumar Gupta and others Vs. H.P. State Electricity Board and others reported in (2001)1 SCC 475, the Hon'ble Supreme Court considered the legality or otherwise of the provision for a separate quote for promotion to the higher post for unqualified persons in the feeder category. Hon'ble Supreme Ciourt while upholding the constitutionality of the provision in the regulation for filling up a specified percentage of vacancies in the promotional quota in the cadre of Assistant Engineer from amongst the unqualified Junior Engineers with a long period of service held and observed in para 5 to 7 as under:-
5. From the facts asserted and the contentions raised in these appeals, following questions really arise for our consideration :
1. The feeder cadre of Junior Engineers, having been filled up from two recruitment sources, one by qualified diploma holders by way of direct recruitment and the other by unqualified matriculate I.T.I. certificate holders by promotion, can there be a separate consideration for them in the matter of promotion to the post of Assistant Engineer and whether such separate consideration violates any constitutional mandate?
2. Providing a quota in the promotional cadre, whether can be said to be a reservation within the meaning of Article 16(4) and as such can it be held to be violative of Article 16(4) of the Constitution?
3. Administrative efficiency being the consideration, though it may be permissible to have a specified percentage of posts in the promotional quota on the basis of educational qualification, as held in Murugesan can it be held to be violative of Articles 14 and 16, when such a quota is meant for unqualified persons in the feeder category?
So far as the first question is concerned, it is no doubt true that in earlier decisions of this Court in Roshan Lal Tandon and Mervyn Continho, this Court has held that once the direct recruits and promotees were absorbed in one cadre, they form one class and they could not be discriminated against, for the purpose of further promotion to the higher grade. But this view has not been found Page 19 of 24 C/LPA/296/2014 CAV JUDGMENT favour with in the later Constitution Bench decision in Triloki Nath Khosa. It has been laid down in the aforesaid case that even where direct recruits and promotees are integrated into a common class, they could, for the purpose of promotion to the higher cadre be classified on the basis of educational qualification. It was held by this Court in Triloki Nath that classification in matters of promotion with academic or technical qualification as basis is a matter for legislative determination and such a classification is permissible unless it is found to be unjust on the face of it and the onus lies upon the party attacking the classification to show by pleadings the necessary material before the Court that the said classification is unreasonable and violative of Article 16. It is in that context the Court further observed that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis and that being the position, it would be for the party assailing such classification to establish that the classification is unreasonable and bears no rational nexus with its purported object. In the absence of furnishing necessary particulars, it must be construed that the plea of unlawful discrimination had no basis. In Triloki Nath a word of caution has been indicated that the right to classify is hedged in with salient restraints. Classification must be truly founded on substantial differences which distinguish person grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved and judicial scrutiny extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation on the basis of classification. In Triloki Nath, the Court held that Roshan Lal's case is no authority for the proposition that there cannot be a classification for the purpose of promotion on a basis other than the one that they were drawn from different sources. Triloki Nath, thus distinguishes both the earlier decision in Mervyn Coutinho and Rohan Lal Tandon; Trilokinath has been followed in Murugesan where this Court held that it would be open for the rule making authority, having regard to the efficiency of the administration and other relevant circumstances to restrict the chance of promotion of the less qualified people in the feeder category. In Murugesan the Court upheld the quota in the matter of promotion in favour of graduate engineers. It may be noticed that in Murugesan, the Court overruled the earlier decision in the Punjab State Electricity Board distinguished in Abdul Basheer's case. The contention of Mr. Subramanium, is no doubt that there can be a classification in favour of the qualified people having regard to the efficiency of the administration but a classification in the manner of providing a quota for unqualified people cannot be held to be in the interest of administration and, therefore, cannot be sustained on the principles of Murugesan. We are unable to accept this contention of the learned counsel for the appellants. Once a classification is permissible notwithstanding that the feeder category is one, when the said classification is challenged being discriminatory, then unless and until sufficient materials are produced and it is established that it is unjust on the face of it by the persons assailing the classification, the Court would be justified in coming to the conclusion that such plea of unlawful discrimination had no basis, as was observed in Triloki Nath. Adjudged from the aforesaid stand point when the pleadings in the case in hand are examined,we do not find any materials to sustain Page 20 of 24 C/LPA/296/2014 CAV JUDGMENT the plea of discrimination raised by the appellants, who are direct recruits diploma holder Junior Engineers. In the case in hand, the Regulations from time to time on being examined, unequivocally show that right from the inception, quota has been provided for promotion in favour of the unqualified promotee Junior Engineers, though the quota has been changed from time to time and while providing such quota, the longer experience as Junior Engineer has been the basis for being eligible for promotion. Providing such a quota in the service history right from inception is also a germane consideration for the Court, while considering the question of alleged discrimination. That apart when the feeder category itself is filled up by direct recruit diploma holders and promotee unqualified matriculates and if no quota is provided for such unqualified matriculates in the promotional cadre of Assistant Engineer then they may stagnate at that stage which will not be in the interest of administration. If the rule making authority on consideration of such stagnation, provides a quota for such unqualified promotee Junior Engineers, the same cannot be held to be violative of any constitutional mandate and on the other hand would come within the ratio of Murugesan. In our considered opinion, therefore, there can be a separate consideration for the promotee unqualified matriculate Junior Engineers in the matter of promotion to the post of Assistant Engineer and the impugned Regulation providing a quota for them cannot be held to be violative of Article 14.
6. So far as the second question is concerned, we are unable to persuade ourselves to agree with the submission of Mr. Subramanium that providing a quota tantamounts to reservation. Article 16 deals with equality of opportunity in matters of public employment and Article 16(4) enables the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. This Court in Indra Sawhney's case has held that no such reservation is permissible in the promotional posts and to get over the said decision Article 16(4A) has been inserted by the Constitution (Seventy Seventh Amendment) Act. But we fail to understand as to how providing a quota for a specified category of personnel in the promotional post can be held to be a reservation within the ambit of Article 16(4). Providing a quota is not new in the service jurisprudence and whenever the feeder category itself consists of different category of persons and when they are considered for any promotion, the employer fixes a quota for each category so that the promotional cadre would be equi-balanced and at the same time each category of persons in feeder category would get the opportunity of being considered for promotion. This is also in a sense in the larger interest of the administration when it is the employer, who is best suited to decide the percentage of posts in the promotional cadre, which can be earmarked for different category of persons. In other words this provision actually effectuates the constitutional mandate engrafted in Article 16(1), as it would offer equality of opportunity in the matters relating to employment and it would not be the monopoly of a specified category of persons in the feeder category to get promotions. We, therefore, do not find any infraction of the Constitutional provision engrafted in Article 16(4) while providing a quota in promotional cadre, as in our view it does not tantamount to reservation.
Page 21 of 24 C/LPA/296/2014 CAV JUDGMENT7. So far as the third question is concerned, if it is permissible to have a specified percentage of posts on the basis of educational qualification, as has been held by this Court in Murugesan we really fail to understand, as to why employer or the rule making authority would be debarred to allot a specific percentage in favour of unqualified matriculate promotee Junior Engineers. The Regulation provides that out of 46% of promotional quota in the cadre of Assistant Engineer, 28% will be available for qualified diploma holder Junior Engineers and 8% would be for unqualified matriculate Junior Engineers, 6% meant for A and B passed and 4% for draftsman. According to Mr. Subramanium the quota available for A and B and Draftsman could come within the ambit of the decision of this Court in Triloki Nath or Murugesan, but not the respondents-unqualified matriculate Junior Engineers in whose favour 8% quota has been fixed. We are unable to accept this contention of the learned counsel. It may be noticed at this stage that so far as the unqualified Junior Engineers are concerned those of them who possess I.T.I. qualification must have twelve years of service in the grade for being eligible for promotion to the Assistant Engineers and those who are merely matriculates and without I.T.I. qualification, must have fifteen years of service in the grade for being eligible for promotion to the post of Assistant Engineer. These unqualified Junior Engineers have been brought to the cadre of Junior Engineers by promotion and in most cases they can maximum aspire to retire as Assistant Engineers. If the rule making authority considers that the stagnation at the stage of Junior Engineer will not be conducive for administration and provides the promotional avenue for them, by providing a quota in the promotional cadre and the service history itself indicates that such provision has been made right from the inception, we see really no constitutional infraction therein, so as to be interfered with by this Court. We, therefore, do not find any substance in submission of Mr. Subramanium on this score and in our considered opinion there is no bar for providing a quota in the promotional post, even in favour of unqualified matriculate Junior Engineers.
30. As per the Rules of 2012, only those teachers who hold degree qualification shall be entitled for promotion to the posts of Head Teacher, which will result into total restriction of promotion avenues for the teachers who do not possess degree qualification. They would thus stand stagnated even after acquiring long experience as Primary Teachers. Such situation could have been taken care of by providing quota or ratio between the teachers who hold and who do not hold degree qualification for promotion to the posts of Head Teacher. Such provision could well be made in the present Rules of 2012. While providing such quota or ratio, it is always open to the State Government to provide for requirement of more experience as further eligibility criteria for unqualified teacher for promotion. However, till Page 22 of 24 C/LPA/296/2014 CAV JUDGMENT such provision is made, the Rule prescribing minimum qualification for promotion to the post of Head Teacher in lower primary would stand unreasonable and unconstitutional as hit by Article 14 of the Constitution of India and cannot be sustained.
31. Learned Single Judge, however, accepted the objection of the petitioners against prescription of the minimum qualification for the posts of Head Teacher for lower primary section (Std.1 to 5) in its entirety. Such would result into total interference with the domain of the State Government to prescribe minimum qualification for the higher posts.
32. We are therefore, of the view that instead of accepting the objections of the petitioners against providing of minimum qualification for all posts of Head Teacher, either to be filled by promotion or by direct recruit, the objection of the petitioners against the Rule providing for minimum qualification for promotion in so far as it has not fixed quota for the teachers who do not hold degree qualification could have been accepted. To that extent, we find that the judgment of learned Single Judge needs to be interfered with and modified.
33. In above such view of the matter, the impugned judgment of learned Single Judge in so far as learned Single Judge has accepted the objection against the minimum qualification prescribed for all posts of Head Teachers, either by promotion or direct recruit, for the lower primary section stands set aside and is modified to the extent that sub-Rule 4(b) insofar as it provides for requirement of minimum degree qualification for promotion to the post of Head Teacher for lower primary section is not sustainable and is declared unreasonable and arbitrary and hence unconstitutional in absence of any provision either fixing quota in promotional avenues for the primary teachers Page 23 of 24 C/LPA/296/2014 CAV JUDGMENT who do not hold minimum qualification or fixing of ratio between the teachers who hold and who do not hold the minimum qualification for the purpose of promotion to the post of Head Teacher. However, it is clarified that if the Government decides to provide such quota or ratio for the primary teachers for their promotion to the posts of Head Teacher in lower primary section, it will be open to the Government to make provision of requiring more experience as and by way of further eligibility from such teachers for promotion to the posts of Head Teacher.
34. The appeals are partly allowed to the aforesaid extent only with no order as to costs.
35. In view of the order passed in the Letters Patent Appeals, Civil Applications would not survive and they stand disposed of accordingly.
Sd/-
(JAYANT PATEL, J.) Sd/-
(C.L.SONI, J.) omkar Page 24 of 24