Allahabad High Court
Suresh Kumar vs State Of U.P. And 4 Others on 19 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 620, 2019 (4) ALJ 642, 2019 (135) ALR SOC 44 (ALL), (2019) 4 ALL WC 4007, 2019 (9) ADJ 27 NOC
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. R E S E R V E D Court No. - 11 Case :- WRIT - A No. - 27260 of 2018 Petitioner :- Suresh Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sanjay Kumar Mishra,Mr. H.N. Singh Sr. Advocate Counsel for Respondent :- C.S.C.,Chandra Prakash Tiwari,Pankaj Kumar Tyagi,Prabhakar Awasthi,Sanjai Kumar Pandey Hon'ble Prakash Padia,J.
1. Heard Sri H.N. Singh, learned Senior Advocate assisted by Sri Sanjay Kumar Mishra, counsel for the petitioner, learned Standing Counsel has accepted notice on behalf of respondent No. 1, Sri Pankaj Kumar Tyagi, learned counsel for respondent nos 2 and 4, Sri Prabhakar Awasthi, learned counsel for respondent no. 3 and Sri Sanjay Kumar Pandey, learned counsel who has put in appearance on behalf of respondent no 5.
2. The petitioner has preferred the present writ petition with the prayer to quash the resolution dated 14.11.2018 passed by the Committee of Management of Sri Vidyanand Junior High School, Jarauil Charkhanni, Mahoba, the order of approval passed by the District Basic Education Officer dated 1.12.2018 and the order of termination dated 3.12.2018 passed by the Manager of the Institution in question (Annexures 9, 10 and 11 to the writ petition).
3. Facts in brief as contained in the writ petition are that Sri Vidyanand Junior High School, Jarauil Tehsil Charkhanni, Mahoba is an educational Institution imparting education from Classes 6 to 8. The Institution in question is a duly recognized Institution. All its teachers and employees are getting their salary in terms of the provisions contained in U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 and their service conditions are governed under the provisions U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978. That a post of Head Master of the Junior High School was fallen vacant in the Institution in question. In this regard an order was passed by the District Basic Education Officer, Mahoba on 31.8.2005 granting permission for advertisement for appointment on the aforesaid post. The post of Head Master had been advertised in the daily newspapers on 16.09.2005. Pursuant to the aforesaid advertisement, various persons including the present petitioner applied for the aforesaid post. A selection committee was duly constituted for the appointment on the post of Head Master. The selection committee found the petitioner the most suitable candidate. Vide order dated 23.09.2005 the District Basic Educaton Officer, Mahoba granted approval regarding appointment of the petitioner. Subsequently, a letter of appointment was issued to the petitioner on the same date. The petitioner joined the Institution on 27.9.2005 and thereafter started working in the Institution in question. Signatures of the petitioner were also attested by the District Basic Education Officer, Mahoba. Salary bill for the month of September, 2005 was also sanctioned and salary was also released in favour of the petitioner.
4. In the meanwhile, one Raghunandan Prasad/respondent No.5 filed a writ petition being Writ Petition No.72842 of 2005 before this Court questioning the appointment of the petitioner. Vide order dated 29.11.2005 passed by this Court, the payment of salary in favour of the petitioner was stayed. Since no restrain order was passed in respect of working of the petitioner, the petitioner continuously discharged his duties on the post of Head Master of the Junior High School. The Writ Petition No.72842 of 2005 filed by Raghunandan Prasad was finally dismissed by a Co-ordinate Bench of this Court vide its judgment and order dated 7.9.2018. It was held by this Court in the aforesaid case that petitioner Raghunandan Prasad does not have requisite qualification for the post of Head Master. The order dated 7.9.2018 passed in Writ A No.72842 of 2005 is appended as Annexure 8 to the writ petition. After the aforesaid judgement was delivered, Committee of Management passed a resolution dated 14.11.2018 terminating the service of the petitioner on the ground that on the date of appointment, the petitioner does not have training certificate. The resolution passed by the Committee of Management was sent for approval to the District Basic Education Officer, Mahoba. The resolution for termination of the service of the petitioner was approved by the District Basic Education Officer, Mahoba vide its order dated 11.12.2018. Subsequent to the same, the Committee of Management has terminated the services of the petitioner vide its order dated 3.12.2018.
5. Challenging the aforesaid orders, he has preferred the paragraph 8 of the writ petition, it is argued by the Sri H.N. Singh, learned Senior Counsel that the order impugned has been passed without affording opportunity of hearing to the petitioner either by the Committee of Management or by the District Basic Education Officer, Mahoba and as such the same are liable to be set aside by this Court. It is further argued that Rule 4 of Rules 1978 has been amended on 12.06.2008 whereby the B.Ed. was held a proper training qualification. It was further argued that the Uttar Pradesh Basic Siksha Sangh has filed P.I.L. Petition No.52790 of 2017 U.P. Basic Siksha Sangh Vs. Union of India and others with the prayer of issuing a writ of mandamus commanding the respondent meaning thereby to the State Government as well as to the Union of India to provide Professional Development Programme for elementary teacher (Open Distance Learning) Pragramme of six month course to the teacher of recognized junior school in the State of U.P. appointed before 12.06.2018. It is further argued that a decision was also taken by the State Government vide its order dated 20.9.2018 whereby the State Government accepted that B.Ed. as a requisite qualification for appointment of teachers for Classes 6 to 8. In view of the same, it was argued that the B.Ed. is a requisite qualification for appointment on the post of Head Master in Junior High Schools. Counsel for the petitioner also relied upon the rules framed and notified by the NCTE by notification dated 23.08.2010. It is argued that as per Right of Children of Free and Compulsory Education Act, 2009, the teachers appointed and not having the requisite qualification, they are required to obtain the qualification by 31 March, 2019and once the B.Ed. Itself is declared a requisite qualification, since the petitioner having the same, the action taken against the petitioner is liable to be set aside by this Court.
6. A counter affidavit has been filed on behalf of respondent No.5 namely Raghunandan Prasad. It is contended in the counter affidavit that the post of Head Master in the Institution in question was advertised on 28.02.2004 in which answering respondent was selected for the post of Head Master. His appointment was also approved by the District Basic Education Officer, Mahoba vide its order dated 14.10.2004. The appointment of respondent No.5 was challenged before this Court by the President of Institution namely Vidyanand Junior High School, Jarauil Tehsil Charkhanni, Mahoba by filing Writ Petition being Writ Petition No.45546 of 2004 (Brij Nandan Mishra Vs. State of U.P. and others) on the ground that answering respondent is not entitled for his appointment on the post of Head Master because he does not have minimum eligibility qualification as required under the Rules. The Writ Petition filed against the respondent No.5 was finally allowed by this Court vide its judgement and order dated 1.11.2009 and the appointment of the respondent No.5 was set aside only on the ground that respondent No.5 does not have the requisite qualification for his appointment on the post of Head Master.
7. Against the order passed by Single Judge of this Court, Raghunandan/respondent No.5 filed Special Appeal No.1033 of 2004. The same was also dismissed by a Division Bench of this Court vide its judgement and order dated 23.12.2004. It is contended that thereafter the Institution illegally appointed the present petitioner on the post of Head Master, although the petitioner also does not have minimum eligibility qualification i.e. B.T.C. It is further contended that the B.A. And B.Ed. are not valid teaching experience as per Rule 4(2) (c) of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978. In paragraph 9 of the counter affidavit, it is contended that appointment of the petitioner has been made on account of favourtism imparted on behalf of the respondent No.3. It is further contended that in the subsequent writ petition filed by respondent No.5, observations were duly made by a co-ordinate Bench of this Court in its judgement and order dated 7.9.2018. Counsel for the respondent No.5 relied upon paragraph 2 of the aforesaid judgment which is quoted below:-
"2. Admittedly, petitioner did not fulfill requisite qualification for appointment on the post of Head Master in Sri Vidyanand Junior High School, Jarauli, Tehsil-Charkhari, District Mahoba (hereinafter referred to as 'School'). Similarly, respondent-5 Suresh Kumar also did not possess requisite qualification for appointment of said post. By impugned order dated 23.09.2005, District Basic Education Officer, Mahoba (hereinafter referred to as 'DBEO') appointed respondent-5 Suresh Kumar on the post of Head Master in School whereas he did not possess requisite qualification."
8. The minimum qualifications were duly prescribed under Rule 4 and 5 of the recognized Basic School (Junior High School) ( Recruitment and Condition of Services of Teachers) Rules, 1978 (hereinafter referred as Rule 1978). From perusal of the same, it is clear that the aforesaid conditions were not at all fulfilled by the petitioner as the petitioner having a degree of B.Ed, which is not at all a teacher training qualification recognized by the State Government for the appointment on the post of headmaster in recognized junior high school. For ready reference Rule 4 and 5 of Recognized Basic School (Junior High School) (Recruitment and Condition of Services of Teachers) Rules, 1978.
"4. Minimum qualification.--(1) The minimum qualifications for the post of clerk shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh, or equivalent examination (with Hindi) and a minimum speed of 30 words per minute in Hindi typewriting.
(2) The minimum qualification for the post of Group 'D' employee shall be Class V from an institution recognised by the Government of Uttar Pradesh or equivalent examination with Hindi.
5. Eligibility of appointment.--No person shall be appointed as Clerk or Group "D" employee in substantial capacity in any recognised School unless :
(a) he possesses the minimum qualifications prescribed for such post;
(b) he is recommended for such appointment by the Selection Committee.
16. Appointment.--Appointment by the Management (1) On receipt of communication of approval or as the case may be, on the expiry of the period of one month under Clause (iii) of Sub-rule (5) of Rule 15, the Management shall first offer appointment to the candidate given the first preference by the Selection Committee and, on his failure to joint the post, the candidate next to him in the list prepared by the Selection Committee and on the failure of such candidates also, to the last candidate mentioned in such list.
(2) (a) The appointment letter shall be sent under the signature of the Manager, by registered post to the selected candidate.
(b) The appointment letter shall clearly specify the name of post, the pay scale and the nature of appointment, whether permanent or temporary, and shall also specify that if the candidate does not join within 15 days from the date of receipt of the appointment letter, his appointment shall be cancelled.
(c) A copy of the appointment letter shall also be sent to the District Basic Education Officer."
9. B.Ed. is not at all one of the recognized teacher training course recognized by the State Government or the Board for the purposes of offering appointment in the institution in question as defined under 1978 Rules. Certificate, which are recognized have been described as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training. Suresh Kumar in the present writ petition does not possess either of these teaching certificate nor does he has to his credit teachers training course recognized by the State Government for the purposes of being appointed in the institution recognized under 1978 Rules.
10. From perusal of the records it is clear that at the point of time when approval is to be accorded, then authorities entrusted with the task of according approval has to be satisfy himself in terms of Sub-rule 5 of Rule 10 to ensure that candidate recommended by Selection Committee possess minimum qualification prescribed for the post. Here at no point of time any one of the authorities have made any endeavour to enter into this question as to whether Suresh Kumar possessed minimum qualification as is envisaged in Rule 4 of 1978 Rules. As Suresh Kumar does not possess requisite minimum training teacher course as such he is ineligible to be appointed as Head Master in recognized Junior High School and as such appointment of Suresh Kumar is clearly dehors the Rule and writ of mandamus cannot be issued for ensuring payment of salary to an incumbent whose appointment is void on the face of it.
11. The same view was earlier taken in the case of Dharambeer Singh Vs. State of U.P. and Ors. reported in 2004 (4) ESC 2838 (Alld.) wherein this Court has repelled the similar argument that Teaching Training Course mentioned in Rule 4 (2) (b) of 1978 Rules, is illustratative and not exhaustive, therefore, B.Ed. which is also a Training Course has to be treated equivalent to the courses mentioned in the Rules. Relevant paras 7, 8, 9, 10, 11, 12 and 13 of the said judgment is being quoted below :
"7. Education qualification of the respondent No. 4 is M.Sc., B.Ed. He is graduate and has three years teaching experience. He passed B.Ed. teacher's training course. The question is whether B.Ed. teachers training certificate could be treated to be minimum qualification for appointment on the post of head master of a recognized Junior High School as envisaged by Rule 4 (2) (b) of the Rules, 1978. For better understanding of the dispute Rule 4 of the Rules, 1978 is extracted below :--
"Minimum Qualifications.--(1) The minimum qualifications for the post of assistant teacher of recognized School shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and teacher's training course recognizsed by the State Government or the Board such as (Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training).
(2) The minimum qualification for the appointment to the post of Headmaster of a recognized School shall be as followed:--
(a) A degree from a recognized University or an equivalent examination recognized as such;
(b) A teacher's training course recognized by the State Government or the Board such as (Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training); and
(c) Three years teaching experience in a recognized schools."
8. A perusal of this Rule indicates that a teachers training certificate is essential qualification for the post of head master. The use of expression such as in Rule 4 (2) (b) was relief in support of the submission that it would include B.Ed. The expression 'such' has been defined in Webster's Third New International Dictionary as below:--
"1. Or a kind or character about to be indicated, suggested or exemplified.
2. Having a quality already or just specified; used to avoid repletion of a descriptive term.
3. Of the same class, type, or sort: in a same category: similar."
9. The expression 'such' has been defined in Black's Law Dictionary, Fifth Edition as below :--
"Of that kind having particular quality or character specified. Identical with, being the same as what has been mentioned. A like similar, of the like kind. "Such" represents the object as already particularized in terms which are not mentioned, and is a descriptive and relative word referring to the last antecedent."
10. The expression 'such as' has been used to mean teachers training courses of the similar type of category as mentioned in Rule 4 (2) (b). The teachers training course, therefore, must satisfy the condition of being recognised by the State Government of Board. And the course must be similar to certificate mentioned in the Rule. The State Government or the Board has not recognized or declared training qualifications of B.Ed. or L.T. to be the equivalent qualification as enumerated in Rule 4 (2) (b), therefore, it cannot be accepted that the petitioner possessed the teachers training qualification envisaged by Rule 4 (2) (b) of Rules, 1978.
11. It may now be considered whether B.Ed. or L.T. is equivalent to teachers training courses such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate. The expression 'such' as, explained earlier means courses of similar type. Since B.Ed. is not a course of similar type the respondent was not qualified to be appointed as head master. The submission of Shri Khare appears to be based on Government treating B.Ed. as sufficient for appointment in Basic Schools in 1998. But the submission proceeds on misapprehension. In Junior Basic Schools managed by U.P. Basic Education Board. Education is imparted from Classes 1 to V. In Senior Basic Schools education is imparted from classes VI to VIII. Service Conditions of teachers and head master of these Schools are governed by the provisions of U.P. Basic Education (Teachers) Service Rules, 1981 (in brief Rules, 1981). Rule 8 prescribes essential qualification for appointment to the post of teacher or head master. The essential teachers training qualification which has been prescribed is the same as was provided in Rules, 1978. It provides teachers training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Certificate of Training or any other training course recognized by the Government as equivalent thereto. The essential qualification for appointment of head master of Junior Basic Schools is five years teaching experience as assistant master of Junior or Senior Basic Schools. After for appointment of head master of Senior Basic Schools three years teaching experience as permanent head master of Junior Basic Schools; or permanent assistant teacher of Senior Basic Schools. Therefore, only that assistant teacher who possessed the essential teachers training qualification as provided by the Rule 8 could be appointed head master. Teachers training qualifications prescribed by Rule 4(2)(b) of Rules, 1978 and Rule 8 of Rules, 1981 are same. In 1998 there were large number of vacancies of about twenty eight thousand assistant teachers in basic Schools, but candidates with B.T.C. or equivalent training qualifications were not available. The candidates were available who had L.T. and B.Ed. or other equivalent qualifications which are essential teachers training qualifications for appointment of assistant teacher L.T. Grade for teaching High School Classes 0-10 as provided by Appendix "A" to Regulation 1, Chapter II to the Regulations framed under the U.P. Intermediate Education Act, 1921. In view of large number of vacancies the State Government decided to fill the posts of assistant teachers from the candidates who had passed L.T./B.Ed./ C.P.Ed./D.P.Ed./B.P.Ed. The Government framed a scheme for one time selection for the academic session 1997-1998. It issued a Government Order on 9.1.1998 that looking to the experience of candidates who had passed L.T./B.Ed./C.P.Ed./ D.P Ed./B.P.Ed. These candidates would be eligible for appointment in basic Schools. But the candidates were required to undergo B.T.C. Special Training Course of six months. And after completion of the course they would be treated to be eligible for appointment as assistant teachers in the Schools managed by the Board. This Court upheld the validity of Government Order dated 9.1.1998 in Civil Misc. Writ Petition No. 29107 of 1999, Alok Kumar Pandey Vs. State of U.P. and Ors., decided on 19.7.1999. The candidates who had passed L.T./ B.Ed./C.P.Ed./D.P.Ed./B.P.Ed., training courses filed writ petitions before this Court claiming that they possessed L.T./B.Ed. training certificates which was higher than B.T.C. and in any case it has to be treated to be equivalent to B.T.C. training certificate. This Court did not accept that L.T./B.Ed. training certificates were higher or equivalent to B.T.C. training certificate. In Nirmal Chandra Mishra and Ors. v. State of U.P. and Ors., 1997 (1) ESC 412, it was held that B.Ed. training course is not equivalent to B.T.C. as the State Government has not declared L.T. or B.Ed., training course to be equivalent to B.T.C. training course. I another decision in B.Ed. Berozgar Sangh, Sonnhadra and Ors Vs. State of U.P. and other, 1997 (30) ALR 737, it had been held that B.Ed. or L.T. cannot be treated to be equivalent to B.T.C. The Court further held that B.Ed. and B.T.C. are different training courses for teaching different type of children; therefore, B.Ed. is neither higher nor lower than B.T.C. It is thus, clear that neither the State Government nor the Court treated B.Ed. to be a course recognized under Rule 8 of Rules, 1981. Teachers training qualification mentioned in Rule 8 of Rules 1981 and Rule 4(2)(b) of Rule, 1978 are same, therefore, B.Ed. training qualification of petitioner cannot be treated to be equivalent or higher, to teachers training qualification "envisaged by Rule 4(2)(b) of Rules 1978. Therefore, the respondent No. 4 was not qualified to be appointed as head master of the institution and his appointment is liable to be quashed.
12. Shri Khare learned Counsel for respondent No. 4 has argued that where a minimum qualification has been prescribed under the Rules candidates who possess higher qualification cannot be left out from the zone of consideration. He placed reliance on decision of the Apex Court in Mohd. Riazul Usman Gani and Ors. Vs. District and Session Judge, Nagpur and Ors. 2000 (2) ESC 956 (SC). This decision of the Apex Court is not of any held to the respondents. In paragraph 21 of the Apex Court observed that the law laid down was on its own facts and it was not laying down any Rule for universal application. The Court said so as minimum qualification laid down for peon was making the provision for promotion of a peon as clerk and Regional (Language) Section Writers under the recruitment Rules nugatory. It was held that criteria which had the effect of denying a candidate his right to be considered for the post of the principal that he was having higher qualification than prescribed would be irrational. It is not so in Basic Schools. An assistant teacher can be appointed as head master only if he holds teachers training certificate as provided in Rules and not because he is B.Ed. Further this Court has held that B.Ed. is not higher than B.T.C. It has been explained earlier that even the Government while permitting B.Ed. and L.T. candidates to be appointed in Basic Schools in 1998 directed that they shall have to take Special B.T.C. training course for six months. The assumption, therefore, made by the learned Counsel that B.Ed. is higher qualification is not correct. In either view the submission does not have any merit.
13. I have held that respondent No. 4 did not possess minimum qualification for the post of head master of Junior High Schools and his appointment is liable to be quashed, therefore, it is not necessary for me to consider the other questions raised by learned Counsel for the parties."
12. The Apex Court in the case of Yogesh Kumar and Ors v. Government of NCT, Delhi and Ors., (2003) 3 SCC 548, in respect to appointment of primary Schools teachers and entitlement of candidates having B.Ed. qualification has held that candidates with B.Ed. degree are ineligible for being appointed as Primary School Teachers. Further B.Ed. course equips them for teaching higher classes. A specialized training given to teachers for teaching small children at the primary level cannot be compared with training given for awarding B.Ed. degree. Merely because primary teachers can also earn promotion to the post of teachers to teach higher classes and for which B.Ed. is the prescribed qualification, it cannot be held that B.Ed. is a higher qualification than T.T.C. Looking to the different nature of T.T.C. qualification the High Court rightly held that it is not comparable with B.Ed. degree qualification and latter cannot be treated as higher qualification to the former. Thus on these principle, it is well settled that B.Ed. degree holders are not at all eligible for being appointed as assistant teachers in recognized Junior High School under 1978 Rules. Relevant paras 2, 3, 4, 5, 6, 7 and 8 are quoted below :
"2. The first contention advanced by the learned Counsel appearing for the B.Ed. candidates is that under the terms of the advertisement for recruitment issued on 21.9.2000. B.Ed. qualification is included in the prescribed qualification and just at the nick of final selection the authorities were not right in issuing the impugned circular to declare them ineligible for recruitment. The relevant part of the advertisement for recruitment containing the requirements of essential qualifications reads as under :
"A. (1) Higher Secondary pass of recognized Board/University with an elective subject in the Matric level.
(ii) Two year Teachers Training Certificate from the recognized institution.
OR B. (i) Intermediate or equivalent from recognized Board/University with an elective subject in the required language at the Metric level.
(ii) One year Teacher Training Certificate from a recognized institution.
Note.--The candidate applying for the post of Assistant Teacher (Primary) Hindi must have passed Hindi as an elective subject at the Matric level."
3. The submission made on behalf of B.Ed. candidates is that as prescribed in Clause B (ii), one year's Trained Teachers Certificate is not granted anywhere by any institution and therefore, the aforesaid qualification should be treated to be to meant to indicate B.Ed. degree which is a one year teacher's training course after Graduation.
4. The Second contention advanced is B.Ed. qualification should be treated as higher qualification than T.T.C. because primary teachers recruited on T.T.C. qualification can get promotion as teachers to teach higher classes and B.Ed. Is the prescribed qualification for higher classes.
5. The Division Bench of the Delhi High Court in the impugned judgment has dealt with the above two arguments in great detail. In our considered opinion it has rightly come to the conclusion that B.Ed. qualification, although a well-recognized qualification in the field of teaching and education being not prescribed in the advertisement, only some of the B.Ed. candidates who took a chance to apply for the post cannot be given entry in the field of selection. We also find that the High Court rightly came to the conclusion that teacher training imparted to teachers for B.Ed. course equips them for teaching higher classes. A specialized training given to teachers for teaching small children at the primary level cannot be compared with training given for awarding B.Ed. degree. Merely because primary teachers can also earn promotion to the post of teachers to teach higher classes and for which B.Ed. is the prescribed qualification, it cannot be held that B.Ed. is a higher qualification than T.T.C. Looking to the different nature of T.T.C. qualification the High Court rightly held that it is not comparable with B.Ed. degree qualification and latter cannot be treated as higher qualification to the former.
6. Lastly, learned Counsel for the appellants urged that undisputedly for the last several years for recruitment of primary teachers in Municipal Corporation Schools, candidates with B.Ed. degree were considered and appointed. This long standing practice should be taken as aid to construe the terms of the advertisement and particularly Clause B (ii) on which reliance is placed by B.Ed. candidates to consider them eligible.
7. In support of the above contentions learned Counsel placed reliance on the decision of this Court in N. Suresh Nathan v. Union of India, 1992 Suppl (i) SCC 584.
8. This last argument advanced also does not impress us at all. Recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment Rules, if any, Deviation from the Rules allows entry to ineligible persons and deprives many other who could have competed for the post. Merely because in the past some deviation and departure was made in considering the B.Ed. candidates and we are told that was so done because of the paucity of T.T.C. candidates, we cannot allow a patent illegality to continue, The recruitment authorities were well aware that candidates with qualification of T.T.C. and B.Ed. are available yet they chose to restrict entry for appointment only to T.T.C. pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. So far as B.Ed. qualification is concerned, in the connected appeals (CA No. 1728-29 of 2001) arising from Kerala High Court which are heard with this appeal, we have already taken the view that B.Ed. qualification cannot be treated as a qualification higher than T.T.C. because the natures of training imparted for grant of certificate and degree are totally different and between them there is no parity whatsoever. It is projected before us that presently more candidates available for recruitment to primary School are from B.Ed. category and very few from T.T.C. category. Whether for the aforesaid reasons, B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates for the present vacancies advertised as eligible. In our view, the Division Bench of the Delhi High Court was fully justified in coming to the conclusion that B.Ed. candidates were rightly excluded by the authorities from selection and appointment as primary teachers. We make it clear that we are not called upon to express any opinion on any B.Ed. candidates appointed as primary teachers pursuant to advertisements in the past and our decision is confined only to the advertisement, which was under challenge before the High Court and this appeal."
13. Hon'ble Apex Court in the case of P.M. Latha and Anr. v. State of Kerala and Ors., Judgment Today 2003 (2) SC 423, has taken view that B.Ed. degree holder cannot necessarily be held to be holding qualification suitable for appointment as Assistant Teacher in Primary School and there is sufficient logic and justification in the study prescribing qualification of Teacher Training Certificate and no B.Ed. for appointment of teachers in Primary Schools. Relevant paragraphs 9, 10, 11, 12, 13, 14, 15, 16 and 17 of aforesaid judgment is quoted below :
"9. It is not disputed before us by the parties that Kerala Education Act of 1958 and the Kerala Education Rules framed thereunder regulate recruitment to. the posts of teachers in private Schools aided by the Government. It is not brought to our notice that correspondingly the Government Memorandum or Order, which regulated recruitment to Government Primary Schools has also been amended to prescribe B.Ed. and equivalent degree qualification as eligibility qualification for the post.
10. We find absolutely no force in the argument advanced by the respondents that B.Ed. qualification is a higher qualification than T.T.C. and therefore, the B.Ed. candidates should be held to be eligible to compete for the post. On behalf of appellants, it is pointed out before us that trained teachers certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed. degree, the training imparted is to teach students of classes above primary B.Ed. degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary School, whether for a particular post, the source of recruitment should be from the candidates with T.T.C. qualification or B.Ed. qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for post of primary teachers as only T.T.C. and not B.Ed. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates, for the present vacancies advertised, as eligible.
11. The Division Bench in the impugned Order upheld the decision of the Single Judge that in terms of the advertisement, B.Ed. candidates were not eligible to take up the selection and to be included in the rank list. We fail to understand that having thus upheld the decision of the learned Single Judge what was the justification for the Division Bench to refer to statutory recruitment Rules applicable to teachers in private primary School, aided by the Government and the judgments rendered by the High Court in their cases, for reversing the judgment of the Single Judge and maintaining the rank list including names of the B.Ed. candidates and their appointments of the basis of Rules yet to be framed.
12. On behalf of respondents, it is submitted that since large number of B.Ed. candidates were allowed to compete and actual appointment orders were also issued in their favour, the Division Bench has tried to adjust the equities between the parties.
13. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. The Division Bench forgot that in extending relief on equity to B.Ed. candidates who were unqualified and yet allowed to compete and seek appointments contrary to the terms of the advertisement, it is not redressing the injustice caused to the appellants who were T.T.C. candidates and would have secured a better position in the rank list to get appointment against the available vacancies, had B.Ed. candidates been excluded from the selections. The impugned judgment of the Division Bench is both illegal, inequitable and patently unjust. The T.T.C. candidates before us a appellants have been wrongly deprived of due chance of selection and appointment. The impugned judgment of the Division Bench, therefore, deserves to be set aside and of the learned single judgment restored.
14. Learned Counsel for the respondent states that two interim orders were made by this Court during the pendency of special leave petitions and after grant of leave for these appeals. The relevant orders dated 3:7.2000 and 1.3.2001 read as under :
"Court Order dated 3.7.2000.
Taken on Board. Issue notice.
Any appointment in the meanwhile made will be subject to the result of any Order passed in this SLP."
Court Order dated 1.3.2001.
......................................................... Mr. P.P. Rao, learned Senior Counsel submitted on behalf of the State of Kerala that T.T.C. holders alone will be appointed in the vacancies arising in respect of Lower Primary School (LPS). This will continue for the future posts also until otherwise decided by this Court. He submitted that so far as Upper: Primary Schools (UPS) are concerned, until otherwise decided, T.T.C. holders as well as B.Ed. holders' will be considered and the Public Service Commission (PSC) will select the persons out of this as one category who are more competent among them for appointment. We make it clear that all such appointments made after 3.7.2000 will be treated as only provisional appointments and be subject to the final result of the appeals.
This Order will apply only to non-private Schools."
15. Learned Counsel for the private respondents relying on the above orders of this Court, submits that since the B.Ed. candidates have been appointed after amendment of the Rules and on the statement made by the Counsel for the State and the Public Service Commission, this Court should not upset the appointment of B.Ed. candidates already made.
16. We have held that the impugned judgment of the Division Bench is liable to be set aside and that of the Single Judge maintained. Having thus reached a conclusion in favour of the present appellants who are T.T.C. candidates, it would be highly unreasonable to deny them relief merely because o the interim orders or arrangements made there by this Court Under the aforesaid two orders, B.Ed. candidates were allowed to be appointed only provisionally. We take note of the fact that all the B.Ed. appointees are not before us and even though all B.Ed. candidates who have been arraigned as respondents to these appeals, have been served with notices of these appeals, only a few of them are represented through Counsel. In these circumstances, we would restrict the relief to the candidates who were petitioners before the learned Single Judge including the present appellant.
17. The exercise of preparation of afresh rank list directed to by the learned Single Judge shall be undertaken and after fresh list is prepared by exclusion of B.Ed. candidates, if the appellants get the necessary rank against available vacancies at the relevant time, they would be given appointment and to make room for them, by termination appointment, if necessary of B.Ed. candidates who mighty have been selected in their places."
14. In view of the aforesaid, it is clear that since the petitioner does not possess necessary qualification as prescribed under Rule 4 and 6 of the Rules, 1978 his appointment is itself void ab-initio and as such the decision taken by the authorities does not call for any interference by this Court specially under Article 226 of the Constitution of India.
15. Another argument has been raised by the Senior Counsel Mr. Singh that the order impugned has been passed in violation of principles of natural justice. It is true that in the present case before cancelling the candidature of the petitioner no notice or opportunity of hearing was provided to him, however, breach of principles of natural justice is no more a straight jacket. The Supreme Court in the case of Aligarh Muslim University and Others Vs. Mansoor Ali Khan reported in 2000 (7) SCC 529 pleased to held that it is not necessary to quash the order merely because of violation of principles of natural justice. The relevant paragraphs are quoted hereinbelow:-
"21. As pointed recently in M.C. Mehta Vs. Union of India (1999 (6) SCC 237), there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao vs. Government of Andhra Pradesh [1966 (2) SCR 172 = AIR 1966 SC 828], it is not necessary to quash the order merely because of violation of principles of natural justice.
22. In M.C.Mehta it was pointed out that at one time, it was held in Ridge vs. Baldwin ( 1964 AC 40) that breach of principles of natural justice was in itself treated as prejudice and that no other 'defacto' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor Vs. Jagmohan ( 1980 (4) SCC 379), Chinnappa Reddy, J. followed Ridge vs. Baldwin and set aside the order of supercession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.
23. Chinnappa Reddy, J. in S.L.Kapoor's case, laid two exceptions (at SCC p.395) namely, " if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.
24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi Vs. State Bank of India ( 1984(1) SCC 43), Sabyasachi Mukherji, J. ( as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed: quoting Wade Administrative Law, (5th Ed.PP.472-475) as follows: ( SCC p.58 Para 31).
[I] "....it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent ....There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with and so forth".
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala Vs. S.K. Sharma ( 1996(3) SCC 364). In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh Vs. State of M.P. ( 1996(5) SCC 460).
25. The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above,- there has been considerable debate of the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De. Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
16. In the case of Haryana Financial Corporation and another Vs. Kailash Chandra Ahuja reported in 2008(9) SCC 31 it was observed by the Supreme Court that failure to supply a report of Inquiry Officer to the delinquent employee would not ipso facto result in proceedings being declared null and void and order of punishment non est and ineffective. It is for the delinquent-employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. Relevant paragraph of the aforesaid case is quoted hereinbelow:-
26. Before about six decades, in Russell v. Duke of Norfolk, (1949) 1 AllER 109 : 65 TLR 225, Tucker, L.J. stated:
"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject- matter that is being dealt with, and so forth".
27. In the oft-quoted passage from Byrne v. Kinematograph Renters Society Ltd., (1958) 2 AllER 579, Lord Harman enunciated; (AIIERp.599 D-E) "What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more".
(emphasis supplied)
28. This Court has also taken similar view. In Union of India v. P. K. Roy, AIR 1968 SC 850 : (1968) 2 SCR 186, speaking for the Court, Ramaswami, J. observed:
"(T)he extent and application of the doctrine of natural justice cannot be imprisoned within the strait jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case".
29. In the leading case of A. K. Kraipak v. Union of India, (1969) 2 SCC 262, Hegde, J. stated;
"What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case".
30. Again, in R. S. Dass v. Union of India, 1986 Supp SCC 617, this Court said;
"It is well established that rules of natural justice are not rigid rules;
they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case".
36. The recent trend, however, is of `prejudice'. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant.
37. In Malloch v. Aberdeen Corporation, (1971) 2 AllER 1278 (HL), Lord Reid said; (AII ERp1283 a-b) "(I)t was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer".
(emphasis supplied)
17. Considering the aforesaid judgement of the Supreme Court a Division Bench of this Court in the case of Smt. Samya Chaudhary Vs. Union of India and others reported in 2013 (7) ADJ 496 (DB) held that due to non observance of principles of natural justice, the action cannot be struck down on the ground of violation of principles of natural justice. The relevant paragraphs of the aforesaid judgement is quoted hereinbelow:-
17. It is true that in the instant case, before cancelling the candidature of the petitioner on the ground that she is not having registered lease deed on the date of application, she was not given opportunity of hearing. However, breach of principles of natural justice is no more a straitjacket formula rendering the action ipso facto invalid unless it could be shown that non-observance thereof has prejudicially affected the person.
18. In cases where despite non-observance of the principles of natural justice, the ultimate result is bound to remain the same: where there is no other view possible even if opportunity of hearing is afforded to the aggrieved parties, then such are the cases where impugned action cannot be struck down on ground of violation of principles of natural justice nor are such cases required to be remitted back to the authorities for a fresh decision after giving show cause notice or opportunity of hearing, as it will be an empty formality, a mere ritual.
18. In view of the same since nothing has been brought in record by the petitioner that what prejudiced has been caused to the petitioner in absence of opportunity of hearing, the order impugned cannot be set aside only on the ground that the opportunity of hearing was not provided to the petitioner.
19. In the supplementary affidavit filed by the petitioner certain Government Orders and notifications issued by the Ministry of H.R.D. was appended.
Learned counsel for the petitioner relied upon Government Notification dated 12.6.2008 by which certain amendments were made in the U.P. Basic Education Act, 1972. From perusal of the paragraph 2 of the aforesaid amendments, it is clear that the amendments will came into force with effect from the date the notification was published in the official gazette. The aforesaid amendment was published in the official gazette for the first time on 12.6.2008 and as such the petitioner will not get any benefit from the aforesaid amendment.
20. Apart from the same, learned counsel for the petitioner also relied upon the notification issued by the National Council for Teacher Education dated 23.8.2010. By the aforesaid notification B.Ed was also added as one of the necessary qualifications. The aforesaid notification will also not help the petitioner since it is provided in the aforesaid notification that the same will apply with effect from the date of the notification.
21. Learned counsel for the petitioner relied upon a notification dated 29.7.2011 issued by the National Council for Teacher Education. By the aforesaid notification amendment was made in the notification dated 25.8.2010 to the certain extent. The aforesaid amendment will also not help the petitioner in any manner.
22. Moreover in the writ petition filed by the respondent no.5 being Writ A No.72842 of 2005 Raghunandan Prasad (supra) in which the present petitioner was arrayed as respondent no.5 findings were duly recorded by the coordinate Bench of this Court that the Suresh Kumar also did not possess requisite education for appointment on the said post. No arguments whatsoever has been advanced by the learned counsel for the petitioner in writ petition filed by Raghunandan Prasad (supra), which was decided very recently on 7.9.2018 and as such nothing has been brought on record that the said findings have been set aside or stayed in appeal or any other proceedings initiated by the petitioner.
23. In view of the above no relief could be granted to the petitioner in this Writ petition. The writ petition is devoid of merits and the same is liable to dismissed. The writ petition is hereby dismissed.
24. No order as to costs.
Order Date :- 19.4.2019.
saqlain