Allahabad High Court
State Of U.P. Through Secretary, Basic ... vs Km. Sunbul Naqvi D/O Shri Intekhab ... on 28 November, 2007
Author: H.L. Gokhale
Bench: H.L. Gokhale, Pankaj Mithal
JUDGMENT H.L. Gokhale, C.J.
1. Heard Mr. D.K. Arora, learned Additional Advocate General for the State Government, in support of this appeal. Mr. Zaidi has appeared for the original petitioner/respondent herein. Mr. Y.K. Saxena, has appeared for an intervenor to oppose, and Mr. Baghel for an intervener in support of the appeal.
2. This appeal by the State Government seeks to challenge the Judgment rendered by a learned Single Judge in Writ Petition No. 44085 of 2006 and some other petitions, which were all disposed of by a common Judgment rendered on 14.9.2007. The leading petition amongst these was filed by one Sumbul Naqvi, the respondent herein. The writ petition is about the claim to be trained in the Special Urdu B.T.C. (Basic Teachers Certificate) Course meant for the primary school teachers.
3. The case of the original petitioner/respondent herein was that she had completed her graduation in Urdu though she did not have Urdu as a subject at the School level or at the Intermediate level. She has, therefore, challenged the relevant condition of the government advertisement dated 24.3.2006, which requires one to pass the High School Examination and Intermediate Examination with Urdu as a subject to qualify for admission to this course.
4. The petition was, thus, concerning the conditions laid down by the State Government for this course run by the State Government. The petitioner sought a mandamus that she should be permitted for the training to the Special UrduB.T.C. Batch-2006.
5. (i) Now, what has happened is that although this was the petition, the learned Single Judge has gone into the question as to whether this Special Urdu B.T.C. course was in any way valid and has recorded finding that the entire course was unauthorised inasmuch as held by him there was no clearance from the National Council for Teachers Education (N.C.T.E.) for this particular course. Mr, Arora, learned Additional Advocate General assails these findings and submits that the learned Single Judge has gone beyond the frame of the writ petition. Mr. Zaidi, learned Advocate for the petitioner before the learned Single Judge does not dispute this submission. He states that the petitioner had certainly not "challenged the validity of the course and that her petition was concerning a condition of eligibility and the learned Single Judge had not decided that issue at all.
(ii) That apart, Mr. Arora submits that even if he was to examine the contention, which the learned Single Judge has accepted, necessary material had been placed before the Court, which established that there was a clearance from the N.C.T.E. for the Special Urdu B.T.C. course. The State Government was concerned with the contrary finding given by the learned Single Judge and hence this appeal.
6. When we peruse the judgement, what we find is that the learned Single Judge has gone into the correspondence entered into between the N.C.T.E. and the Secretary, Basic Education Department, Government of Uttar Pradesh. Thus, we have on record the letter dated 16.2.2005 addressed to the Regional Director, N.C.T.E. at Jaipur. This letter records that the Government had accorded approval to some 3000 candidates to undergo the training for Special Urdu B.T.C. course. This letter is followed by another letter from the Government of the same date addressed to the Regional Director, N.C.T.E., Jaipur. This letter records that there is a shortage of teachers in the primary schools with capability of teaching through Urdu medium. It is mentioned that the Government Training Schools earlier functioning at Varanasi, Lucknow, Meerut and Agra were not functioning from the year 1997-98 onwards and nearly 3000 teachers were required. This is followed by a further reminder of 12.4.2005.
7. These letters were replied by the Regional Committee of N.C.T.E. by its letter dated 12.5.2005 and the Committee sought a clarification with regard to the objective of the programme, namely (i) whether it is meant to prepare teachers to teach Urdu or (ii) to prepare teachers to teach through the Urdu medium and (iii) also the proposed course details including the availability of instruction material. This letter of N.C.T.E. is replied on 18.5.2005. It is mentioned herein that there is a requirement of 3480 teachers. It is further stated in paragraph 3 of this letter that as in the case of the general B.T.C. Course, which trains the teachers through Hindi medium, now the teachers are to be trained for teaching through Urdu medium. As far as textbooks are concerned, it is stated that the usual books, which are now translated in Urdu will be made available for teaching to these teachers. In paragraph 4 of this letter, it is stated that these candidates will be taught/trained on the seats, which are already sanctioned.
8. This letter is replied by the N.C.T.E. by its letter dated 25.5.2005. This letter reads as follows:
To, Sh. J.S. Deepak, Secretary (Basic Education), Govt. of U.P., Secretariat, Lucknow (UP) Sub: Consideration of the issue for granting permission to impart special training for two year BTC Course (Urdu) to the graduates in the State of U.P. Sir, With reference to your letter No. 2333/79-5-2005-12/04 dated 18.05.2005 in connection with the above cited subject. The letter was placed before NRC in its 21st Meeting held on 20th - 21st May 2005, wherein the Committee after careful consideration of all aspects including your reply noted that "the State of Uttar Pradesh has not asked for grant of additional intake in its two year BTC Course recognised by the NCTE. Further the BTC Course already has Sanskrit and Urdu as subject papers. Therefore, there is no new decision required on this application" dated 18.05.2005."
In pursuance of the above decision you are informed accordingly.
Yours faithfully, Sd/-
(N.R. Murali) Regional Director 25/5/2005
9. It is this letter, which has led to some confusion and the learned Single Judge has taken the view that it implies that NCTE has rejected the permission to start the Course.
10. Mr. Arora, learned Additional Advocate General, appearing for the State, submitted that in fact this correspondence clearly shows that the State of Uttar Pradesh had not asked for additional seats and from amongst the existing intake capacity, some capacity was to be utilised for training the candidates who will be able to teach the primary students through Urdu medium also. The course would be one and the same. These candidates will develop dual capacity. The State has relied upon the policy of the Central Government, which is adopted by the State Government and which lays down that where there are 10 or more students opting for any particular medium of instruction, those students are to be provided education through that medium.
11. The decision of the State Government is based on the National Education Policy, 1986. The State Government has issued an order and the relevant extract of Government Order dated 10.8.1987 is as follows:
(A) Languages teaching at primary Stage (Class-I-V) In class 1-5, children belonging to linguistic minorities are being taught in their mother tongue, Urdu, if there are at least 10 students in one class and 40 students in an institution opting for education in their mother tongue.
(B) Triple Language Formula at Middle level (Class VI-VIII) Three languages should be taught at class 6-8 level in following mannen:
(i) Hindi and compulsory Sanskrit or General Hindi.
(ii) English
(iii) Any one language among Sanskrit, Urdu, Punjabi, Bangali, Gujrati, Marathi, Assamee, Oriya, Kashmiri, Telgu, Malyalam, Tamil, Kannada, Sindhi.
12. It was pointed out by Mr. Arora, that there are some 25530 primary schools managed by the Basic Shiksha Parishad, U.P. where the number of the linguistic minority children was 10 or more than 10. This requires approximately about 25500 teachers. This is what is stated in the affidavit of Mr. J.S. Deepak, Son of Sri J.S. Saxena, Secretary, Basic Education, Government of U.P., Lucknow. In view of the fact that the other Government Training Institutions have been closed down, there was an urgent requirement of getting those many primary teachers. It is for this purpose that the first batch started sometimes in 2006 and they are going to have their examinations in March, 2008. The advertisement was issued for 3000 candidates, but 2681 candidates were selected. The second batch is going to give their examinations in July, 2008, where 3315 candidates have gone for training. For the third batch, the selection process has been completed, though the results are yet to be declared. This is the batch, for which advertisement was issued on 10.9.2006. The submission of Mr. Arora is that the learned Single Judge by his judgment has set aside the entire process on a complete misunderstanding of the facts. He has set aside the Government Orders, which are, in fact, the letters dated 16.2.2005, 18.3.2006 and 15.9.2006, as being illegal and inoperative for not having the approval from the NCTE under Sections 14 and 15 of the NCTE Act as held by him.
13. Mr. Y.K. Saxena, learned Advocate, who appeared for the intervenor I has been allowed to address the Court. We are allowing the intervening application on behalf of the applicants, who want to defend the judgement. Mr. Saxena has principally submitted that although Urdu is one of the languages mentioned in the VIIIth Schedule of the Constitution, there is primacy of Hindi and he has referred to some of the relevant Articles of the Constitution of India. He has referred to Article 343, which makes Hindi the official language of the Union of India. He has referred to Article 351, which contains a direction for development of the Hindi language and he has principally submitted that under the garb of primary education, it is the classes of middle level education, which are also being covered under the Scheme. He has also assailed the enrolment of Urdu BTC candidates on the ground that initially the proposal was for some 3000 candidates. Next year, the proposal has gone over to 5000 candidates and in the 3rd year, again for 5000 more. He submits that this is a diversion of the seats, which are meant for the candidates, who are opting for Special BTC through Hindi medium.
14. Mr. Arora has countered these submissions by pointing out that under Article 351-A, it is the duty to provide facility for instructions in mother tongue at the primary stage of basic education. The Basic Education course consists of two parts, the junior basic level from 1 to 5 standard and the senior basic level from 6 to 8.
15. He submits that it cannot be said that this responsibility of imparting education through mother tongue comes to an end at the junior basic level and that as far as the senior basic level is concerned, the education is not to be given through mother tongue. Besides the National Education Policy requires that where there are 10 or more students of a particular linguistic minority, they are to be provided education through their mother tongue. As far as the allegation of diversion is concerned, Mr. Arora, submitted that what is being done is to give an additional qualification to some of the teachers, who are part of the entire group. They will have dual capability. They will teach the Urdu medium classes, where 10 or more students require education through Urdu medium, otherwise they will be capable of teaching other students through Hindi Medium and thus, there is no diversion of any kind. The submissions of Mr. Arora are supported by Mr. Baghel, learned Advocate appearing for intervener in support of the appeal.
16. We have considered these submissions of both the learned Counsel. The material on record clearly shows that there is a serious backlog as far as imparting the primary education through Urdu is concerned, More than 25500 schools require Urdu teachers. The Training Schools, which were set up for providing training and were existing at places like Varanasi, Lucknow, Agra and Meerut have been closed down from 1997-98. A reference is also made to the Sachher Committee Report on Minorities. The primary education is a concern of the State Government and of the Society at large. All that the State Government has done is to make training available to certain number of candidates, who will have this additional qualification. It cannot be said to be a diversion or denial of opportunity to the others. Similarly, as far as the requirement of clearance from NCTE is concerned, inasmuch as Urdu was also a subject sanctioned and the course, which is to be imparted is one and the same, the NCTE itself has stated in its letter that no separate clearance was required. There is a clear error on the part of the learned Single Judge in understanding the contents of the correspondence. It is also material to note that the State Government has amended the U.P. Basic Education (Teachers) Service Rules, 1981 and has included Special BTC Urdu as one of the permissible qualification.
17. In this connection, we cannot ignore that it is the mandate of the Constitution under Article 350A, that every State and every local authority has to make an endeavour to provide adequate facilities for instruction in the mother tongue at the primary level of education to the children belonging to linguistic minority groups. Now, the Constitution has been further amended by inserting Article 21A, that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. The State has made arrangement to provide training to make available primary teachers, who will teach through Urdu Medium. The Scheme made by the State Government will have to be looked at in the light of these two Articles now.
18. In the circumstances, the appeal will have to be allowed. All these observations of the learned Single Judge and his findings will have to be set aside and they are hereby set aside. The State Government will be permitted to proceed to complete the course of earlier batches and to proceed with the 3rd batch for which the advertisement has been given on 10.9.2006. It will be open to the State Government to proceed to declare the results of the earlier batches and continue the training programme.
19. As far as the writ petition of Sumbul Naqvi is concerned, she has raised the point that she had better qualification of Graduation in Urdu and she ought to have been permitted for this course though she did not have Urdu as a subject in the School. Mr. Arora defends the conditions submitting that since the candidates have to become primary teachers, taking Urdu as a subject in the School was relevant. He however, points out that she had challenged the advertisement of the earlier two courses and those two batches have already started and they have completed more than a year and half of the two years course. For this reason, it is not possible to admit Ms. Sumbul Naqvi, when the course is practically nearing completion. Mr. Arora has, however, stated that in the earlier two batches, good number of seats remained vacant after the selection process was over. It is quite possible that some seats will not be filled at the end of the process of the third batch. He has assured the Court that he will seek instructions from the State Government that the candidates with better qualification should not be rejected, even if they did not study Urdu in School. In the event, there are any such seats remaining vacant, he assures that the Government will consider issuing of necessary notification/advertisement to fill those vacancies from such candidates, who have better qualification, like graduation in Urdu, though they may not have taken Urdu as a subject at the School level or at the Intermediate level. In the event, any such advertisement is given, the respondent-petitioner in writ petition/Sumbul Naqvi may make an application and her application may be considered.
20. The learned Single Judge has made certain observations against the earlier Advocate General and the Secretary of Education Department. In our view, those observations were not called for and they are hereby expunged.
21. The appeal filed by the State Government is thus allowed. The Judgment and order passed by the learned Single Judge impugned herein is set aside. Civil Misc. Writ Petition No. 44085 of 2006 filed by Sumbul Naqvi stands disposed of. There will not be any order as to costs.