Gujarat High Court
Jagrutiben Ishvarlal Patel vs State Of Gujarat & 2 on 6 March, 2017
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/178/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 178 of 2017
In
SPECIAL CIVIL APPLICATION NO. 1580 of 2017
With
CIVIL APPLICATION NO. 2247 of 2017
In
LETTERS PATENT APPEAL NO. 178 of 2017
With
LETTERS PATENT APPEAL NO. 192 of 2017
In
SPECIAL CIVIL APPLICATION NO. 1823 of 2017
With
CIVIL APPLICATION NO. 2366 of 2017
In
FIRST APPEAL (STAMP NUMBER) NO. 4130 of 2016
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JAGRUTIBEN ISHVARLAL PATEL....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
================================================================
Appearance:
IN LPA No.178 OF 2017 :
MS DHARA SHAH FOR MR PRANAV S DAVE, ADVOCATE for the
Appellant(s) No. 1
MR SHIVANG M SHAH, ADVOCATE for the Appellant(s) No. 1
MR DM DEVNANI, AGP, for the Respondent(s) No. 1 - 3
IN LPA No.192 OF 2017 :
MR DB PATEL, ADVOCATE for the Appellant(s) No. 1
MR DM DEVNANI, AGP, for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 06/03/2017
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HC-NIC Page 1 of 18 Created On Tue Mar 07 02:31:19 IST 2017
C/LPA/178/2017 ORDER
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. Whether the Degree in Bachelor of Computer Application (BCA) is a valid degree for the post of Head Teacher is the controversy involved in these appeals. Hence, both these appeals are disposed of by this common order.
2. In Letters Patent Appeal No.178 of 2017, challenge is made to the interim order dated 30.01.2017 passed by the learned single Judge in Special Civil Application No.1580 of 2017 by which the writ petition was admitted and notice was issued for considering the issue of interim relief.
2.1 Whereas, challenge in Letters Patent Appeal No.192 of 2017 is to the final order dated 03.02.2017 passed by the learned single Judge in Special Civil Application No.1823 of 2017 by which the said petition was dismissed summarily.
3. The facts necessary for this order are drawn from Special Civil Application No.1580 of 2017;
It is the case of the petitioner that she is possessing the qualification of Degree in Page 2 of 18 HC-NIC Page 2 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER Bachelor of Computer Application and has cleared the P.T.C. Course. The State Government, through its Education Department, framed the Recruitment Rules for the post of Head Teachers ClassIII in the subordinate services of the Directorate of Primary Education or the District Primary Education Committees or the Municipal Primary Education Committees, 2012, vide Notification dated 18.01.2012, for conducting the Head Teacher Aptitude Test (HTAT). The petitioner cleared the HTAT in May 2015 and thereby, became eligible for appearing in the recruitment process for appointment of Head Teachers.
4. On 22.01.2017 the State Government published an Advertisement for recruitment of Head Teachers and Vidya Sahayaks (For Standards 6 to 8, Gujarati and other mediums). In the said Advertisement, reference is made about the Notification dated 22.09.2016 issued by the State Government, through its Education Department, which provided that the process of recruitment shall be undertaken as per the Recruitment Rules for the post of Head Teachers ClassIII in the subordinate services of the Directorate of Primary Education or the District Primary Education Committees or the Municipal Primary Education Committees, 2016 [for short, "the Rules of 2016"]. In the said Advertisement, only three Page 3 of 18 HC-NIC Page 3 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER Degrees, viz. Bachelor in Arts (B.A.), Bachelor in Commerce (B.Com) and Bachelor in Science (B.Sc), were declared to be the valid degrees for Graduation. Since the petitioner was holding the degree of BCA, she was unable to fillin the On line Application for the said post.
5. Being aggrieved by the same, the petitioner preferred the captioned writ petition being Special Civil Application No.1580 of 2017 before this Court with the prayer to set aside the decision mentioned in the Advertisement dated 24.01.2017 of not including BCA Degree as one of the Degrees as the minimum prescribed qualification for appointment of Head Teachers and also to declare Rule 4(b)(i) of the Rules of 2016 as illegal and ultra vires of Articles 14 & 16 of the Constitution.
6. The learned single Judge admitted the writ petition and issued Notice for interim relief, vide order dated 30.01.2017. Aggrieved by the interim order of the learned single Judge dated 30.01.2017 of not granting any relief in favour of the petitioner, Letters Patent Appeal No.178 of 2017 has been filed. Whereas, Letters Patent Appeal No.192 of 2017 has been filed against the dismissal of the writ petition by the learned single Judge vide impugned order dated Page 4 of 18 HC-NIC Page 4 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER 03.02.2017.
7. Ms. Dhara Shah, learned advocate appearing for the petitioner, submitted that in the Advertisement dated 22.01.2017, no specific subject has been mentioned as a necessary subject for the post of Head Teacher unlike for the post of Vidya Sahayaks. Therefore, only the Graduation Degrees of B.A., B.Com and B.Sc cannot be considered to be the necessary Degrees for the post of Head Teachers.
7.1 Learned advocate for the petitioner drew our attention to the provisions of The Bombay Primary Education Rules, 1949, more particularly, Rule70 of the said Rules, which provide for the duties of Primary School Teachers. Subrule (2) of Rule 70 provides for the duties of Head Teacher. Learned advocate placed reliance on the above provision to bring home the point that a Head Teacher has to discharge different administrative functions in a School, in addition to his duties as a Primary Teacher. Therefore, the respondents ought not to have demanded subject specific Degree for the post of Head Teachers.
7.2 Learned advocate further submitted that the Advertisement provides that 50% weightage shall be given to the marks obtained by a candidate in Page 5 of 18 HC-NIC Page 5 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER HTAT. Therefore, the marks obtained in HTAT is a relevant factor for appointment to the post of Head Teacher. It is contended that having permitted the petitioner to appear in the HTAT on the basis of BCA degree, the respondent authorities could not declare only the three degrees of B.A., B.Com and B.Sc, as the necessary degrees for the post of Head Teacher.
7.3 Learned advocate for the petitioner further contended that the Rules of 2016 were framed only on 22.09.2016 whereas, the petitioner had cleared the HTAT in May 2015, during which time, the Rules of 2012 were governing the field. Therefore, the respondents ought not to have restricted the minimum qualification of Graduation to the Degrees of B.A., B.Com and B.Sc only. Hence, the said action of the respondents is arbitrary and unconstitutional. It was also submitted that writ petitioner in Special Civil Application No.1580/2017 has the experience of serving as a Primary Teacher in a Private School and therefore, her case deserves consideration.
7.4 In support of her submissions, learned advocate placed reliance upon the following decisions;
(a) The judgment of this Court in the case Page 6 of 18 HC-NIC Page 6 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER of State of Gujarat and others v. Roz Dineshbhai Sevabhai and others, 2015(2) GLH
689.
(b) The judgment of Hon'ble Apex Court in the case of Kailash Chand Sharma v. State of Rajasthan and others, (2002) 6 SCC 562.
8. Mr. D.B. Patel, learned advocate appearing for the petitioner in LPA No.192 of 2017, adopted the arguments canvassed by learned advocate Ms. Dhara Shah. No other argument/s has been advanced by learned advocate Mr. D.B. Patel.
9. Mr. D.M. Devnani, learned AGP, submitted that the State Government framed the Rules of 2016 by exercising powers conferred by Section 23(3) of the Gujarat Primary Education Act, 1947. Under the said Rules of 2016, the Degree in Bachelor of Computer Application is not considered a valid degree for the post of Head Teacher since the elementary education introduced in schools in pursuance of the implementation of the Right of Children to Free and Compulsory Education Act, 2009, included subjects that are different from the syllabus of study of Bachelor of Computer Application. The subjects to be taught on the post of Head Teacher do not form part of the syllabus of study of Bachelor of Computer Page 7 of 18 HC-NIC Page 7 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER Application. Hence, when the State Government in its wisdom did not include the Degree of BCA as one of the qualifications for the post of Head Teacher, it cannot be said that the relevant Rule is illegal or ultra vires.
9.1 Learned AGP drew our attention to the Government Resolution dated 27.04.2011, which governs the issue of appointment of Vidya Sahayaks (Teachers) in primary and upper primary schools managed by District Education Committees / Municipal School Boards. The said Government Resolution lays down different standards for recruitment of Teachers. The petitioner does not possess the Degree, as provided in the said Government Resolution. Hence, the petitioner could not contend that the decision to exclude BCA as one of the standards of Graduation is unreasonable or unconstitutional.
9.2 Learned AGP further submitted that the petitioner in one of the writ petitions has contended that her case deserves to be considered for appointment as she has the experience of serving as a Primary Teacher in a Private School. However, such appointment falls within the ambit of ScheduleF of The Bombay Primary Education Rules, 1949 which lays down the model conditions Page 8 of 18 HC-NIC Page 8 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER of employment of staff in private schools in the State. It was, therefore, submitted that experience of serving in a Private School does not create any right in favour of the Teacher concerned to have her case considered favourably for employment in Government Primary School. He also drew our attention to the notes titled "Important" displayed under the Marksheet cum Certificate of HTAT and submitted that the said Marksheet cum Certificate is issued only for passing the examination and that it does not certify that the candidate concerned is possessing the requisite educational qualification. Therefore, the passing of HTAT cannot be a ground for entering into the zone of consideration for the post of Head Teacher. It was, therefore, submitted that both the appeals deserve to be dismissed.
9.3 In support of his submissions, learned AGP placed reliance upon the decision of Apex Court in the case of Ganapath Singh Gangaram Singh Rajput v. Gulbarga University Represented by its Registrar and others reported in (2014) 3 SCC
767.
10. Having heard learned counsel for both the sides, it can be noticed that the bone of contention is Rule 4(b)(i) of the Rules of 2016 Page 9 of 18 HC-NIC Page 9 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER of the Notification dated 22.09.2016. Before we proceed further, a reference to the said Rule 4(b)(i) is apposite;
"4. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall,
(a) ...
(b) (1) possess a Bachelor's degree in Arts or Science or Commerce obtained from any of the Universities established or incorporated by or under the Central or a State Act in India or any other educational institutions recognized as such or declared to be deemed as a University under section 3 of the University Grants Commission Act, 1956; and
(i) have completed two years certificate course of Primary Teachers Course from any educational institution recognized by the Government; or
(ii) possess one year degree in special education obtained from any of the Universities established or incorporated by or under the Central or a State Act in India or any other educational institutions recognized as such or declared to be deemed as a University under section 3 of the University Grants Commission Act, 1956; or by Rehabilitation Council of India or by the Central Government; or
(iii) possess a Bachelor's degree in Education obtained from any of the Universities established or incorporated Page 10 of 18 HC-NIC Page 10 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER by or under the Central or a State Act in India or any other educational institution recognized as such or declared to be deemed as a University under section 3 of the University Grants Commission Act, 1956; or (2) have passed Higher Secondary Certificate Examination conducted by a Secondary and / or Higher Secondary Education Board or possess an equivalent qualification recognized as such by the Government and possess a four years' Bachelor's degree in Elementary Education or a four years' Bachelor's degree in Education obtained from any of the Universities established or incorporated by or under the Central or a State Act in India or any other educational institution recognized as such or declared to be deemed as a university under section 3 of the University Grants Commission Act, 1956; or (3)(i) have passed the Head Teacher Aptitude Test as may be prescribed by the Government; and
(ii) have about five years' separate or combined experience of teaching as a Teacher or Vidya Sahayak, Shikshan Sahayak, Adhyapak Sahayak, Junior Lecturer, Senior Lecturer in Government or GrantinAid or NonGrantin 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);
and
(c) possess the basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967; and Page 11 of 18 HC-NIC Page 11 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER
(d) possess adequate knowledge of Gujarati or Hindi or both."
11. The above Rule specifically provides that for being eligible for appointment by direct selection to the post of Head Teacher, the candidate concern should possess a Bachelor's degree in Arts or Science or Commerce obtained from any of the Universities mentioned in the said Rule. The said Rule provides for the minimum requisite qualification that a candidate has to possess at the Graduation level for appointment to the post of Head Teacher and Vidya Sahayaks (For Standards 6 to 8, Gujarati and other mediums). As the designation itself reads, the duties of a Head Teacher are different to the duties of a Primary School Teacher. Subrule (2) of Rule70 of The Bombay Primary Education Rules, 1949 specifically provide that the duties of a Head Teacher of a Primary School shall be subject to the instructions that may be issued by the Administrative Officer, in addition to his duties as a Primary School Teacher in respect of the class or classes to be taught by him personally. Thus, over and above the duty to teach as a Primary School Teacher, the Head Teacher has to discharge such other duties, as may be instructed to him by the Administrate Officer of the Primary School and which includes;
Page 12 of 18HC-NIC Page 12 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER to act responsibly for efficient and effective education, including physical education of all pupils in his school;
to ensure that the school property is properly maintained, shall be responsible for the arrangement of pupils in their classes and for their promotion to higher standards according to their progress during the year;
to make all possible efforts to improve attendance in the school;
to collect and safecustody of school fees and fines and other amounts received in the school till the time of their remittance to the Taluka teachers.
to prepare pay bills for the school and send them to the Taluka Master before such date as may be specified by the Administrative Officer in this behalf.
shall be responsible for the disbursement of pay to his assistants immediately on receipt of such pay from the Taluka Teacher.
to prepare timetable of the school every year.
shall be responsible for the proper maintenance of all school register and records.
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12. The duties that a Head Teacher is required to perform is much arduous and carries a high degree of responsibility. Over and above the duty to work as a Primary School Teacher, the Head Teacher also has to discharge several other administrative functions in the school. Hence, the duties performed by the Head Teacher falls in a different pedestal as compared to the duties performed by a Primary Teacher.
13. The Rules of 2016 have been framed keeping in mind the nature of duty that the post carries. It is pertinent to note that the advertisement in question is for recruitment of Head Teachers and Vidya Sahaykas for Standards 6 to 8 in the Gujarati as well as other mediums. Over and above the administrative functions that a Head Teacher has to perform, he has to impart education in the subjects of History, Maths, Science & Technology, Social Science, etc. to the students. The prevailing curriculum of a Primary School Teacher requires that the candidate should be a Graduate either in the field of Arts, Commerce or Science. Such qualification has been fixed keeping in mind the different subjects that the candidate is required to teach in the primary section. A candidate who has a degree in Bachelor of Computer Application has specialized knowledge in the field of computer applications / software Page 14 of 18 HC-NIC Page 14 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER that are useful to perform singular or multiple tasks. Such a candidate would not be able to impart education in the subjects of History, Maths, Science & Technology, Social Science, etc. to the students efficiently as compared to the subjects related to computer applications. Considering the need of the hour, the expert body fixed the criteria of degree of Bachelor of Arts or Bachelor of Commerce or Bachelor of Science as the requisite qualification at the Graduation level. Hence, it cannot be said that the decision to fix the qualification of B.A., B.Com or B.Sc as the requisite qualification at the Degree level for appointment to the post of Head Teacher is arbitrary, illegal or unconstitutional. We are of the considered opinion that academic issues has to be left to be decided by the expert body concerned. In the present case, we do not find any infirmity in the decision of the respondents to fix the qualification of B.A., B.Com or B.Sc as the requisite qualification at the Degree level for appointment to the post of Head Teacher. Hence, the said contention raised by learned counsel for the petitioner is devoid of any merits.
14. The advertisement in question also requires the passing of HTAT as one of the requisite criteria for appointment to the post of Head Page 15 of 18 HC-NIC Page 15 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER Teacher. It is true that the petitioner was permitted to appear in HTAT though she was possessing the degree of Bachelor of Computer Application. However, mere passing of HTAT does not certify that the candidate concerned is possessing the requisite qualification and experience to become a Head Teacher. Such fact would be evident from the Marksheet cum Certificate of HTAT issued by the State Examination Board wherein, under the note "Important", specific mention has been made to such effect. It has also been stated in the Certificate that the recruiting agencies would check themselves as to whether the candidate possesses the necessary qualification and experience for applying to the post as per the recruitment rules. Therefore, though the petitioner was permitted to appear in HTAT with the qualification of BCA at the Graduate level, the same will not entail any right in her favour of submitting her candidature for the post since the petitioner does not satisfy the requisite qualification prescribed under the Rules of 2016. Hence, the said contention raised by learned advocate for the petitioner is misconceived.
15. The petitioner in SCA No.1580/2007 has also raised the contention that she is having the experience of serving as a Primary Teacher in a Page 16 of 18 HC-NIC Page 16 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER Private School and therefore, her case deserves consideration. In our opinion, once it is found that the petitioner does not satisfy the requisite qualification for the post in question, the factor of having experience of serving in a primary school would not be of any significance. Hence, the said contention raised by learned advocate for the petitioner is also without any merits.
16. There is no dispute regarding the proposition of law laid down in the decisions relied upon by learned counsel for the petitioner. However, in the facts and circumstances of the present case, the said decisions would not apply since the petitioner do not possess the requisite qualification prescribed in the advertisement. Further, we do not find any infirmity in the decision of the respondents of fixing the standards of Graduation to B.A., B.Com or B.Sc. We are in complete agreement with the reasonings given by the learned single Judge in the impugned order and hence, find no reasons to entertain these appeals.
17. For the foregoing reasons, both the appeals are dismissed. Consequently, both the civil applications stand disposed of.
Page 17 of 18HC-NIC Page 17 of 18 Created On Tue Mar 07 02:31:19 IST 2017 C/LPA/178/2017 ORDER (R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Pravin/* Page 18 of 18 HC-NIC Page 18 of 18 Created On Tue Mar 07 02:31:19 IST 2017