Allahabad High Court
Neeta James vs State Of U.P. And Others on 17 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1835, (2019) 12 ADJ 688 (ALL), 2020 (138) ALR SOC 8 (ALL), (2020) 1 ESC 142
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Court No. - 36 Case :- WRIT - A No. - 66745 of 2012 Petitioner :- Neeta James Respondent :- State Of U.P. And Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :-C.S.C.,AnshulNigam,RekhaSingh,Shivam Yadav And Case :- WRIT - A No. - 9223 of 2013 Petitioner :- Smt.Parveen Philip Respondent :- State Of U.P.Thru Principal Secretary And Ors. Counsel for Petitioner :- Chatterji Counsel for Respondent :- C.S.C.,Shivam Yadav And Case :- WRIT - A No. - 9228 of 2013 Petitioner :- Smt.Veena Menen Respondent :- State Of U.P.Thru Principal Secretary And Ors. Counsel for Petitioner :- Utpal Chatterji Counsel for Respondent :- C.S.C.,Shivam Yadav And Case :- WRIT - A No. - 9206 of 2013 Petitioner :- Rubina Swami Respondent :- State Of U.P.Thru Principal Secretary And Ors. Counsel for Petitioner :- R.V.Mishra Counsel for Respondent :- C.S.C.,Shivam Yadav And Case :- WRIT - A No. - 13433 of 2013 Petitioner :- Smt.Santosh Singh Respondent :- State Of U.P.Thru Secy And Ors. Counsel for Petitioner :- T.K.Mishra Counsel for Respondent :- C.S.C.,Shivam Yadav Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Ashok Khare learned Senior Advocate assisted by Sri Siddharth Khare learned Advocate for the petitioners in the leading writ petition, Sri Utpal Chatterji learned Advocate for the petitioners in the connected Writ Petition Nos. 9223 of 2013 (Smt. Parveen Philip vs. State of U.P. Thru Principal Secretary & others) and 9228 of 2013 (Smt. Veena Menon vs. State of U.P. Thru. Principal Secretary & others), Sri T.K. Mishra learned Advocate for the petitioner in the connected Writ Petition Nos. 13433 of 2013 (Smt. Santosh Singh vs. State of U.P. Thru. Secy & others), Sri Shivam Yadav learned Advocate for the District Basic Education Officer, Meerut and Finance & Accounts Officer (Basic), office of the District Basic Education Officer, Meerut and learned Standing Counsel for the State respondent nos. 1 and 2.
The above noted five connected petitions have been filed against the common order dated 22.10.2012 passed by the Director of Education (Basic) U.P, Lucknow whereby the representations moved by the petitioners for payment of salary from the State Exchequer had been rejected on the ground that they did not fulfill the minimum eligibility qualification as per the U.P Recognized Basic School Recruitment (Junior High School) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (In short termed as Rules, 1978 hereinafter).
The petitioners contend that they had been appointed as Assistant Teacher on 1.7.1989 (for petitioners Neeta James, Ms.Venna Menon and Smt Santosh Singh) and 11.11.1989 and 25.6.1989 (for remaining two petitioners Rubina Swami and Parveen Philip) in Church city Junior High School, Sadar Meerut. They claim to possess requisite eligibility qualification for appointment as Assistant Teacher in the aforesaid institution which is a recognized and aided Junior High School and is governed by the provisions of the U.P Basic Education Act, 1972 and the rules framed thereunder. The U.P Junior High School (Payment of Salary of Teachers and other employees) Act, 1978 is applicable to the said institution. The institution-in-question was brought on the grant-in-aid list with effect from 1988.
It is not disputed that the temporary appointment of all the petitioners was approved by the District Basic Education Officer by orders passed in the year 1990 and they were working continuously and getting salary from the State Exchequer. In the year 2007, husband of one of the Assistant Teachers namely Priyadarshini Sharma working in the same institution filed a Writ Petition no.21422 of 2007 to challenge the appointment of 21 Assistant Teachers including the petitioners herein. The said writ petition was disposed of by the judgment and order dated 1.7.2007 wherein this Court had directed the Director of Education (Basic) to call for the records from the office of Basic Education Officer and examine the illegality of the appointment and payment, if any, made to the teachers and other staff of the said institution. Pursuant to the said directions, the Director of Education (Basic) passed an order dated 2.11.2007 holding 18 Assistant Teachers being ineligible for appointments in terms of 1978' Rules and that they were not entitled to receive salary with the further directions of making recovery of salary already paid to them.
Aggrieved, the petitioners herein filed writ petitions separately challenging the order dated 2.11.2007 wherein initially interim order was passed directing for payment of salary in Untrained-grade to the petitioners. One of the writ petition was, however, finally allowed after exchange of pleadings vide judgment and order dated 1.6.2012. Similar orders were passed in ten writ petitions tagged in a bunch. While setting aside the order passed by the Director of Education dated 2.11.2007, the matter was relegated for fresh decision after giving opportunity of hearing to the petitioners therein. Consequently, order impugned dated 22.10.2012 had been passed.
The learned Senior Advocate, Sri Ashok Khare and Sri Utpal Chatterji learned Advocate for the petitioners vehemently submit that there was absolutely no reason for raising controversy after approximately two decades of appointment and continuous working of the petitioners. They submit that some of the petitioners possessed B.Ed degree at the time of their appointment and this was the reason for holding all of them ineligible in terms of the Rules, 1978. It is contended that minimum qualification criteria as provided in the Original Rule 4 of 1978 Rules was inclusive, in as much as, the rule reads as under:-
4. Minimum qualification:- (1) The minimum qualification for the post of Assistant teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teacher's training course recognised 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 qualifications for the appointment to the post of Headmaster of a recognized school shall be as follows:
(a) A degree from a recognised University or an equivalent examination recognized as such;
(b) A teacher's training course recognised by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and
(c) Three years' teaching experience in a recognised school.
From the language employed in Rule 4(1) of the original Rule, 1978. It is contended that words "such as" used therein gives a clear indication that the eligibility training qualification prescribed therein was only illustrative and not exhaustive. It, therefore, could not be said that if a candidate possessed B.Ed degree or any other training course which was recognized by the State Government or the Board, he or she was ineligible for appointment. For the first time, amendment of Rule 4 in 1978 Rules had been brought by the notification dated 12.6.2008 which came into effect from 12.6.2008 from the date of publication in the Gazette. Under the amended Rule, the minimum eligibility training qualification was made exhaustive with the words "as follows" by including a regular B.Ed degree course from a duly recognized institution, with educational qualification being graduation degree to replace the original rule wherein intermediate or equivalent examinations was the educational qualification. The submission, thus, is that with the addition of B.Ed degree as one of the training qualification in the minimum eligibility criteria, it could not be said in the year 2012 that the petitioners were ineligible to continue as Assistant Teachers as B.Ed was not a recognized training qualification.
It is further contended that the entire enquiry had been initiated at the instance of Sanjay Sharma, husband of the above referred teacher who herself was having B.Ed degree, as her wife was harbouring vengeance against other teachers. She was shown favour by the office order dated 22.10.2007 on the plea that she had rendered long services. The said order obtained by the petitioners under Right to Information Act has been appended as Annexure-'12' to the writ petition no.13433 of 2013. The attention of the Court is invited to the contents of the said order which records the fact that Smt. Priyadarshini Sharma who was appointed as Assistant Teacher Church City, Junior High school, (Meerut) did not possess eligibility qualification at the time of appointment. She was appointed in the year 1999 on the strength of the approval order of the District Basic Education Officer wherein her qualification was shown as Intermediate and B.T.C. In the year 2005, an enquiry was instituted by the State Government wherein she submitted her B.A and B.Ed certificates, it was, then, transpired that she had completed B.Ed course in the year 1993. She further denied having produced B.T.C certificate as her training qualification at the time of her appointment. It is contended that despite concealment a lenient view was taken and though direction was given to her to deposit salary received from the State Exchequer but no action was taken against her. By placing the said order, it is further vehemently contended by the learned Senior Advocate for the petitioners that the respondents have acted in a discriminatory manner in denying salary to the petitioners while protecting appointment of the complainant who did not possess requisite training qualification at the time of appointment.
Sri Utpal Chatterji, learned Advocate for the petitioners in the connected petitions submits that the petitioners to whom he represents were having training qualification such as N.T.T, (Nursery teachers' training) and B.T.C (Basic Training Course) from another State, ie; outside the State of U.P. The contention is that the Director of Education (Basic) while passing the order impugned had conveniently ignored this aspect of the matter. Though the individual training qualification of each of the petitioners has been narrated in the order impugned but while concluding for rejection of claim for salary of the petitioners he simply ignored that they possessed B.T.C or NTT training qualification. With regard to the said petitioners, the order impugned is simply required to be set aside on the ground of non-application of mind.
Learned Standing counsel, on the other hand, defended the order impugned on the plea that appointments of the petitioners were made in the institution-in-question after it had been brought on the grant-in-aid list in the year, 1988. Admittedly, all the provisions of the Rules, 1978 were applicable at the time of appointment of the petitioners wherein B.Ed was not the eligibility training qualification. Any subsequent amendment in the rules would be of no benefit to the petitioners for the settled legal position that the eligibility qualification is to be determined with reference to date of appointment. Illegality in the appointment of petitioners cannot be regularised as possession of minimum eligibility qualification both (educational and training) was a pre-requisite to the appointment. The enquiry into the matter, ie; correctness of appointment of the petitioners was conducted pursuant to the orders passed by this Court and once after the said enquiry it was found that the petitioners were ineligible, there was no option before the respondent but to deny them salary from the State Exchequer.
The counsel for the District Basic Education Officer relying on the averments in the counter affidavit filed on behalf of the said respondents submits that the petitioners are getting salary of untrained teacher pursuant to an interim order dated 13.5.2013 passed in Writ Petition no.16757 of 2013 though the answering respondents since the beginning stressed that they were not entitled to remain in service and could not be granted benefit of regular teacher. It is contended that in view of the requirement of the Rule, 1978 the petitioners cannot be paid full salary of the trained teacher. The amendment application filed by the petitioners in the connected writ petitions seeking for the relief for payment of full salary of trained teacher is, thus, being repelled.
Reference has been made to the Division Bench judgment of this Court in Sanjay Kumar Tyagi vs State of U.P reported in (2005) 1 ESC 713, by the respondent to submit that B.Ed degree cannot be considered as a "Teachers Training Course" for the purpose of possessing "minimum qualification" under the 1978, Rules. The submission is that the said view of the Division Bench has been upheld by the Full Bench of this Court in Ram Surat Yadav vs State of U.P reported in (2014) 1 ADJ 1.
Sri Utpal Chatterji, learned counsel for the petitioner in rejoinder placed reliance on the Full Bench of this Court in Jitendra Kumar Soni and others vs State of U.P and others reported in 2010 7 ADJ to submit that the teachers training course from an Institution outside the State of U.P cannot be said to be invalid for appointment of Assistant Teachers within the State of U.P. Sri Ashok Khare, learned Senior Advocate in rejoinder placed the judgment of a learned Single Judge in Writ petition no.14989 of 2018 (Alka Singh vs State of U.P and 4 others) to submit that the petitioner therein who was holder of B.Ed degree and was appointed prior to 2008, was protected taking clue from the order of the Apex Court in Civil Appeal no. 3904 of 2013 wherein the Apex Court has held that the appointment of the appellants therein ought not be disturbed only on the ground of alleged disputed lack of qualification when they have been in service for a long period.
Heard learned counsels for the parties and perused the record.
Before examining the merits of the arguments of learned counsels for the parties, it would be apt to go through the provisions governing appointment of teachers in a recognized Basic School with upto-date amendments and also the legal pronouncements pertaining to the field. The U.P Basic Education Act, 1972 was enacted for establishment of the Board of Basic Education and to deal with the matters connected therein. As per section (2), the definition Clause, the "Basic Education" means education up to the VIIIth Class imparted in schools other than high schools or intermediate college. "Junior Basic School" means a Basic School in which education is imparted up to Class-V. "Junior High School" means a basic school in which education is imparted to boys and girls or to both from Class-VI to Class-VIII. Section 3 contemplates setting of the Board of Basic Education. The function of the Board under Section 4 (1) is to organize, coordinate and control the imparting of basic education and teachers' training in the State in order to raise its standards and to co-relate it with the system of education as a whole in the State.
In exercise of powers conferred under section 19 of the Act 1972, to carry out the purposes of the Act, three sets of Rules have been framed regulating the recruitment and conditions of service of persons appointed to the post of teachers. The "U.P recognized Basic schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975" was framed to govern the recognized Basic Schools imparting education up to Class-V, not being an institution belonging to or wholly maintained by the Board or any local body. The "U.P recognized Basic Schools (Junior High Schools) Recruitment and Conditions of Services of Teachers Rules 1978" was framed to govern the service conditions of teachers of recognized Junior High School, ie; an institution other than a High School or Intermediate College imparting education from Class-VI to Class-VIII (both inclusive). The "U.P Basic Education Teachers Service Rules, 1981" was framed to govern the service conditions of teachers of the Junior Basic Schools imparting instructions in Nursery and Class I to VIII established by the U.P Board of Basic Education. The academic/eligibility qualifications for appointment to the post of Assistant Teacher in a Nursery and Junior Basic Schools (I to V) established by the Board as per 1981' Rules are as follows:-
(i) Mistress of Nursery School
(ii) Assistant Master and Assistant Mistress of Junior Basic School Bachelors degree from a University established by law in India or a degree recognised by the Government equivalent thereto together with certificate of teaching (Nursery) from recognised training institution of Uttar Pradesh and any other training course recognised by the Government as equivalent thereto and teacher eligibility test passed conducted by the Government or by the Government of India.
(ii)(a) Bachelors degree from a University established by law in India or a degree recognised by the Government equivalent thereto together with any other training course recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (BTC), two years BTC (Urdu) Vishisht BTC. Two year Diploma in Education (Special Education) approved by the Rehabilitation Council of India or four year degree in Elementary Education (B.EI.Ed.), two year Diploma in Elementary Education (by whatever name known) in accordance with the National Council of Teacher Education (Recognition, Norms and Procedure) Regulations, 2002 or any training qualifications to be added by National Council for Teacher Education for the recruitment of teachers in primary education and teacher eligibility test passed conducted by the Government or by the Government of India and passed Assistant Teacher Recruitment Examination conducted by the Government.
In 1981' Rules, a Junior Basic School has been defined to mean a Basic School where instructions are imparted from Class-I to V; whereas a "Senior Basic School" means a Basic School where instructions are imparted from Class-VI to VIII. A ''Nursery school,'' on the other hand, means a school in which children ordinarily of the age up to 8 years are taught in the Class lower than Class-'I'.
In so far as Rules, 1975 governing service conditions of teachers of a recognized Junior Basic School (Class-I to V) is concerned, Rule 9 thereof provides that for appointment on a teaching post in any recognized school a person must possess such qualification as are specified by Board in this behalf and previous approval to whose appointment has been granted by the District Basic Education Officer in writing.
Under Rules, 1978 pertaining to service conditions of teachers in a recognized Senior Basic School or Junior High School, (Class VI to VIII) the minimum qualification as provided in Rule 4 of the Original Rule has been quoted in the foregoing part of this judgment.
Rule 5 of the Original Rules, 1978 further puts a condition that no one shall be appointed as Assistant Teacher in substantive capacity in any recognized school; unless (a) he possess minimum qualification prescribed for such post; (b) he is recommended for such appointment by the Selection Committee.
On 3rd September, 2001 the N.C.T.E (National Council for Teacher Education), a national expert body set up by the Central Government under Section 3 of the N.C.T.E Act, 1993 notified "The National Council for Teacher Education (Determinations of minimum qualifications for recruitment of teachers in schools) Regulations, 2001" in exercise of power conferred under clause d(i) of sub-section (2) of Section 32 read with section 12 (d) of "The National Council for Teacher Education, Act 1993". Regulation 2 of the Regulations' 2001 provides that the same shall be applicable for recruitment of teachers in all formal schools established, run or aided or recognized by the Central or State Governments and other authorities for imparting education at elementary (primary and upper primary/middle school), secondary and senior secondary stages. Regulation 3(i) provides that the qualifications for recruitment of teachers in educational institutions mentioned in Regulation 2 shall be as prescribed in the First Schedule for teaching schools subjects. Regulation 4 provides that the existing recruitment Rules may be modified within a period of three years so as to bring them in conformity with the qualifications prescribed in the Schedules therein. Meanwhile, teachers appointed in accordance with the existing recruitment qualifications, subsequent to the issuance of the Regulations, would be required to acquire the qualifications as prescribed in the Schedules. As per the First Schedule to the Regulations, 2001, a teacher for Primary Classes must possess educational qualification up to Intermediate level with the teachers training qualification of Diploma or Certificate in basic teachers' training of a duration of not less than two years or Bachelor of Elementary Education. Whereas, a teacher in the Upper Primary (Middle school section) may possess an alternative qualification of a degree of Bachelor in Education (B.Ed) or its equivalent. The note appended to the First Schedule reads as follows:-
Level Minimum Academic And Professional Qualifications I Elementary a. Primary b. Upper Primary (Middle School section)
(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.
OR Bachelor of Elementary Education (B.El.Ed) i.Senior Secondary School certificate or Intermediate or its equivalent; and 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.
II Secondary/High School Graduate with Bachelor of Education (B.Ed.) or its equivalent OR Four years' integrated B.Sc., B.Ed or an equivalent course.
III Senior Secondary/PUC/Intermediate Master's Degree in the relevant subject with Bachelor of Education (B.Ed) or its equivalent.
OR Two years' integrated M.Sc.Ed. Course or an equivalent course.
Note:
1. For appointment of teachers for primary classes, basic teachers' training programme of 2 years' duration is required. B.Ed is not a substitute for basic teachers' training."
Thus, B.Ed was included as permissible qualification for appointment of teachers to the Upper Primary (Middle school section) w.e.f 3.9.2001 under the N.C.T.E Regulations' 2001. The said regulations, however, contemplated that there were existing recruitment rules enforced in various States of the country and, therefore, provided under Rule 4 that the existing recruitment rules may be modified within a period of three years so as to bring them in conformity with the qualifications prescribed in the Schedules.
The effect of the said enactment was considered by the Apex Court in Basic Education Board, U.P vs Upendra Rai and others and (2008) 3 SCC 432. The Supreme Court held that the N.C.T.E Act does not deal with ordinary educational qualifications like primary schools, High Schools, Intermediate Colleges or universities and would, consequently, not override the U.P Basic Education Act and the Rules made thereunder. It was held that the N.C.T.E Act and U.P Basic Education Act operate in two different fields, first with regard to teachers training institute and the second with regard to ordinary Primary Schools in the State of U.P, the concept of primacy under Article 254 of the Constitution, as such, has no application. The correctness of the judgment in Upendra Rai was referred to the larger bench by the Supreme Court in Irrigineni Venkata Krishna and others vs. Government of Andhra Pradesh and another reported in (2010) 1 ESC 42 (SC) . During pendency of the said reference, Parliament enacted the National Council for Teaching Education (Amendment) Act, 2011 (Act no.18 of 2011), w.e.f 01.06.2012. The Amending Act introduced Sub-section (4) in Section 1 to provide that the Act shall apply, inter alia, to schools imparting pre primary, primary, upper primary, secondary or senior secondary institutions and colleges providing Senior Secondary or Intermediate education. Section 12-A was also inserted which provides as follows:-
"12 A. For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognized by the Central Government or a State Government or a local or other authority.
The Amending Act 2011, thus, came into force with prospective effect. The validity of the provisions of the N.C.T.E Act and the amendment Act have been upheld by Full Bench of this Court in Shiv Kumar Sharma and others vs State of U.P and others reported in 2013 (6) ADJ 310 wherein it is held that the N.C.T.E is fully empowered to prescribe qualifications for the persons to be recruited as teachers from pre-primary to the Intermediate school or college level.
The Rule 4 of 1978' Rules has been substituted w.e.f 12.6.2008 and sub-Rule (1) of Rule 4, thereafter, reads as follows;
"4.Minimum qualification:- (1) The minimum qualification for the post of Assistant teacher of a recognized school shall be Graduation Degree from a University recognized by U.G.C and a teachers training course recognized by the State Government or U.G.C or the Board as follows:-
1.Basic Teaching Certificate.
2.A regular B.Ed degree from a duly recognized Institution.
3.Certificate of Teaching
4.Junior Teaching Certificate
5.Hindustani Teaching Certificate Rule 4 has further been substituted by notification dated 5.12.2012 (w.e.f 5.12.2012). The amended sub-Rule 1 as it now stands reads as follows:- "4.Minimum qualification:- (1) The minimum qualifications for the post of Assistant teacher of a recognized school shall be Graduation Degree from a University recognized by U.G.C and a teachers training course recognized by the State Government or U.G.C or the Board as follows:-
1.Basic Teaching Certificate.
2.A regular B.Ed degree from a duly recognized Institution.
3.Certificate of Teaching.
4.Junior Teaching Certificate
5.Hindustani Teaching Certificate And Teacher eligibility test passed conducted by the Government of Uttar Pradesh or by the Government of India.
The question with regard to the eligibility qualification for recruitment of teachers in a Junior High School prior to the enactment of the NCTE Amending Act 18 of 2011 and the Right of Children to Free and Compulsory Education, Act' 2009 came up for consideration before a Full Bench of this Court in Ram Surat Yadav and others vs State of U.P and others reported in (2014) 1 ADJ 1, in view of the conflicting decisions of the Division Benches of this Court. After considering the minimum eligibility qualification provided in Rules' 1978 and the decisions of the Apex court in Mohd Sartaj and another vs State of U.P and others reported in (2006) 2 SCC 315, it was held therein that once the Rules which have been framed under the Statute prescribes the eligibility qualifications, those qualifications have to be adhered and a candidate who does not fulfill the required qualification has no entitlement to hold the post even if such an appointment is made, it would be contrary to law. It was held that the plea that B.Ed Course can be taken as a superior course to the B.T.C had been expressly turned down in the judgments of the Supreme court in PM Latha and another vs State of Kerala reported in 2003 3 SCC 541, Yogesh Kumar and others vs Govt. of NCT, Delhi and others reported in 2003 3 SCC 548, Dilip kumar Ghosh and others vs Chairman reported in 2005 7 SCC 567. The decisions of the Division Benches in Sanjay Kumar Tyagi vs State of U.P and others reported in 2005 1 ESC 713 and in Smt Madhubala Upadhyay vs State of U.P decided on 19th January, 2009 and Akhilesh Kumar Pandey vs State of U.P reported in (2009) 9 ADJ 9 had been held to be good law wherein the effect of subsequent amendment of Rules' 1978 in 2008 was considered and it was held that the Amending rules of 2008 would not apply to a situation where an appointment was made under the unamended rule. It was held that the Amendment of 2008 was not clarificatory. The B.Ed degree was not a prescribed training qualification under the original Rule 4(1) of the Rules' 1978.
In this background, the judgment of the Division Bench in Rishikant Sharma vs State of U.P and others reported in 2011 (6) ADJ 1 wherein it was held that since the question whether the B.Ed Degree course can be taken as a superior course to B.T.C was a long standing dispute and it was later included as eligibility qualification in the year 2008, the teachers appointed prior to amended qualification would be treated as eligible, was held as not laying down the correct principle of law. The said decision was overruled by the Full Bench; firstly, on the fundamental principle that when requirement of eligibility is prescribed in the Statutory Rules which govern selection, appointment of a person who does not fulfill the norms of eligibility cannot be regarded as lawful; Secondly, that when a selection process is initiated in pursuance of an advertisement which lays down the conditions of eligibility, a person who does not fulfill the required qualifications can have no legitimate entitlement to hold the post; Thirdly, that the view taken by the Division Bench in RishiKant Sharma (supra) was contrary to the law laid down by the Apex Court in the line of authority as noted in PM Latha, Yogesh Kumar, Dilip Kumar Ghosh and Pramod Kumar (supra); Fourthly, on the ground that the decision in Mohd Sartaj (supra) had been distinguished on erroneous grounds.
In this backdrop, the question whether the B.Ed degree can be regarded as eligibility qualification for appointment to the post of Assistant Teachers in a recognized Junior High School under the Rules 1978, is no longer res integra. The contentions of the learned Advocates for the petitioners that the essential qualification prescribed in unamended original Rule 4(1) of 1978' Rules is inclusive for the use the words "such as" therein is not open for scrutiny before this Court. With the decisions of the Division Benches in Sanjay Kumar Tyagi (supra), Smt Madhubala and Akhilesh Chandra Pandey (supra), held to be good law in Ram Surat Yadav (full bench), it is settled that the prescribed training qualification under the unamended Rule 4(1) of the Rules' 1978 did not recognize the B.Ed qualification as a training qualification for recruitment of teachers in a recognized Junior Basic Schools. The Amending Rules' of 2008 was not clarificatory and the appointment made prior to the said amendment would be governed by the unamended rule.
It, therefore, cannot be said that the persons who possess B.Ed degree as training qualification were eligible for appointment to the post of Assistant Teacher in a recognized Junior High School.
In the present bunch, the petitioner namely Ms. Neeta James had completed Bachelor of Education (B.Ed) course in the year 1991-92 and was appointed in the year 1989. The objection taken by the respondent with regard to identity of the said petitioner in the order impugned for difference in her name in the educational certificates is not sustainable as it is clear from the record that she was daughter of Sri S.G.Beechan. But it is held that having completed B.Ed training course that too after appointment, she was not entitled for appointment to the post of Assistant Teacher to teach in Junior and Senior Basic School ie Class-I to VIII, however, having been qualified N.T.T (Nursery Teachers' Training) course she could have been appointed to teach children at the Elementary or Nursery level only. Further having noticed the fact that the said petitioner was appointed in the year 1989 and had continued to work as Assistant Teacher uninterruptedly till the year 2007 when dispute regarding her qualification was raised on a petition filed by husband of a fellow teacher, and also that the said petitioner is working and must have been at the verge of retirement, this Court finds it proper to let her continue as an untrained teacher in the institution-in-question. It is also noteworthy that by the order impugned, the approval granted by the District Basic Education Officer in the year 1990 to the appointment of said petitioner has not been cancelled or revoked. There is no whisper of any misrepresentation or concealment on the part of the said petitioner. It would, therefore, be appropriate that the petitioner namely Ms. Neeta James be allowed to continue as an untrained Assistant Teacher in the School namely Church City, Junior High School, Meerut till she attains the age of superannuation. At the same time, the management of the Institution shall be liable to pay salary to the said petitioner for the entire period of her working in the institution-in-question, regularly, month by month and shall not in any way interfere in the working of the petitioner on the premise that her appointment on the post of Assistant Teacher in Junior High School was invalid. It would be open for the Management to take work of Nursery Teacher from her.
Similar is the position with regard to another petitioner Ms.Rubina Swami who has appended her educational and training certificates as Annexure-'1' to the writ petition filed by her. After passing intermediate, she had completed Nursery Teachers' Training Course in the year 1985-86. She, therefore, cannot be said to have possessed the requisite training qualification for appointment to the post of Assistant Teacher in a Junior High School (Class-I to VIII) but she is found qualified to teach children of Elementary/Nursery Classes. For the fact of continuance of the petitioner Ms.Rubina Swami since 11.11.1989 and that she must have been at the verge of retirement, it is provided that she shall be allowed to continue as Assistant Teacher in the school-in-question and salary of an untrained teacher shall be paid to her by the Management, regularly month by month till she attains the age of superannuation. It is clarified that the petitioner shall be given due assignments and there shall be no interference in the working of the said petitioner by the Management till her superannuation.
As far as the remaining two petitioners namely Ms. Parveen Philip and Ms. Veena Menon are concerned, the educational and training certificates appended by them alongwith the writ petition indicate that they had completed "Basic Teachers Training Course" prior to their appointments in the year 1988 and 1989; respectively. The certificates issued by the Bihar Pradesh Shiksha Parishad appended as Annexure-'3' to the writ petitions filed by them are not disputed in the counter affidavit. The order impugned though records that they had completed B.T.C. Course from the State of Bihar but there is no consideration of the said training qualification not being recognized in the State of U.P. Only reason for rejection of claims of these petitioners in the order impugned is that B.Ed was not approved training qualification for appointment of Assistant Teachers in Junior High School prior to 12.6.2008 and that the amendments in the rules are prospective in nature and for the said reason, the said petitioners were held ineligible for appointment. Looking to the reasons given in the order impugned as also the training certificates appended by the said petitioners Ms. Veena Menon and Ms.Parveen Philip, it cannot be said that they were not eligible for appointment as Assistant Teachers, in as much, as they possess requisite Basic Teachers Training Course Certificate, approved qualification for holding the post of Assistant Teacher in a Basic School. The qualification possessed by them being akin to the training qualification required in the unamended Rules, 1978 they are found eligible and are held entitled to continue and salary attached to the post in question from the State Exchequer.
It is not the stand of the Management that they had obtained appointment by any fraudulent method. The action of the Management in discontinuance of their services on the basis of the order of the Director of Education, therefore, cannot be sustained. The prayer made by the petitioners namely Ms. Veena Menon and Ms. Parveen Philip for quashing of the order dated 22.10.2012 passed by the Director of Education (Basic) as also the consequential orders of the Manager of the Institution discontinuing their services w.e.f 10.11.2012, thus, are found unsustainable. While quashing the aforesaid orders with respect to the two petitioners namely Ms.Parveen Phillip and Ms.Veena Menon, they are held entitled to continue till the age of superannuation and payment of salary of trained teacher from the State Exchequer.
As regards the petitioner Ms. Santosh Singh, as per the certificates appended by her as Annexure-'1' to the writ petition, it is evident that she had completed "Nursery Teachers' Training Course" in the year 1989, ie: prior to her appointment as Assistant Teacher w.e.f July, 1989. As far as Basic Teachers Training Course (page-'20' of the paper book), she had completed the same in the year 1994-95, ie after getting appointment. She was continuing in the institution-in-question as an Assistant Teacher on the strength of the approval being granted by the Basic Education Officer, Meerut vide letter dated 6.6.1990.
It is, therefore, difficult to accept that she had completed "Basic Teachers Training" Qualification while discharging the duties of a full time teacher in the institution-in-question. At the best, she could have been appointed for teaching children in pre-primary or nursery classes. Having due regard to the fact Ms. Santosh Singh is working in the institution-in-question as an Assistant Teacher since the year 1989, it is provided that she be allowed to continue to work as Assistant Teacher till she attains the age of superannuation. The salary from the State Exchequer, however, is not admissible to her. She will, accordingly, be entitled for salary of an untrained teacher to be paid by the Management of the institution-in-question for the period of continuance.
Lastly, it is provided that all the petitioners herein who have been paid salary from the State Exchequer pursuant to the interim orders passed by this Court shall be entitled to retain the same; ie, there shall be no recovery of the salary already paid to them till the date of passing of this order.
It is clarified that the aforesaid directions are given in the peculiar facts and circumstances of the present case and shall not be treated as precedent in any other matter.
Subject to above observations and directions, all the five writ petitions are disposed of.
There shall be no order as to costs.
Order Date :- 17.9.2019/Harshita