Andhra Pradesh High Court - Amravati
Smt.Veerabathini V Kumari, vs The State Of Andhra Padesh on 20 January, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.20949 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, to declare the action of the Respondents No.2 to 4 trying to issue appointment order in favour of the 5th respondent as School Assistant (Special Education) is contrary to educational qualifications prescribed in Special DSC (IEDSS), 2019 through G.O.Ms.No.24, School Education (Exams) Department dated 15.02.2019 Qualifications and Eligibility prescribed in para 11 as arbitrary, illegal, violative of Articles 14, 16, 19 & 21 of the Constitution of India and consequentially direct the respondents No.2 to 4 to appoint the petitioner as School Assistant (Special Education) as per merit list.
The petitioner applied and appeared for computer based test conducted in Krishna District for appointment to the post of School Assistant (Special Education) as per Special DSC Notification, 2019. Accordingly, the petitioner secured 52 marks out of 100 marks and stood in Serial No.39 in Krishna District. The petitioner completed his Graduation (BA) in the year 1994 from Andhra University. The petitioner underwent One year Teacher Training course in Special Education Diploma in Special Education (Mental Retardation) from National Institute for the Mentally Handicapped and completed in Second Division in the year 2000. The petitioner did Special B.Ed. from Dr.B.R.Ambedkar Open University at Hyderabad and secured First Division in December, 2013. Accordingly, he registered B.Ed MSM,J W.P No.20949 of 2020 2 certificate with Rehabilitation Council of India through Registration No.ERR No.A4334, dated 24.03.2015.
The second respondent called for the applications from the eligible candidates through online and as per the above Notification No.768/TRC-1/2018, dated 15-02-2019 in Serial No.11 Qualifications and Eligibility prescribed are as follows:-
(i) No person shall be eligible for appointment to the categories of the post specified in the table below unless he/she possesses the qualifications thereof;
(ii) The candidates who have passed SSE Examination in the concerned medium or with the concerned Language as First Language are eligible to apply to the posts in the concerned medium and the candidates who have passed the examination of Higher Standards in the concerned language/medium are also eligible to apply to the posts in the medium.
(iii) Government orders issued from time to time relating to the method of appointment and the authorities competent to make appointments shall be applicable.
(iv) The qualifications prescribed for the post of School Assistants (Special Education) shall be as prescribed in Column (2) below and the relevant .
certificate shall be registered with RCI.
Post Qualifications
School Assistant Must possess a Bachelor's Degree and Bachelor's
(Special Education) Degree in Special Education (Spl.B.Ed) recognized by the Rehabilitation Council of India (RCI) OR
(b) Must Posses a Bachelor's Degree and B.Ed(General) with One year Diploma in Special Education.
OR
(c) Bachelor's Degree and General B.Ed. degree with two year Diploma in Special Education recognized by the Rehabilitation Council of India (RCI) OR
(d)Bachelor's Degree and General B.Ed. degree with Post Graduate Professional Diploma in Special Education recognized by the Rehabilitation Council of India (RCI) MSM,J W.P No.20949 of 2020 3 Note: 1 Candidates with higher qualifications in respect of the qualifications at the Rule 4(iv) are also eligible for appointment by direct recruitment.
Note2: Candidates with qualifications in single disability area, have to take care of wide range of diversities in a general school. Note3: Preference will be given under direct recruitment with qualifications prescribed under Rule 4(iv)(a) when the equal marks are obtained in TETcumTRT The fifth respondent applied through online without having requisite qualification as prescribed in the above notification (Special DSC, 2019). The respondent No.5 having Bachelor Degree (Mental Retardation) from Osmania University, Hyderabad and without having any Special B.Ed from any university, but the respondents No.2 to 4 failed to reject her application as Respondents No.5 did not possess requisite qualification to appeal Special DSC, 2019 (School Assistant) post and permitted her to appear for the online examination and she got 57.5 marks and stood in 17th position. But the respondents No.2 to 4 did not issue appointment order on par with other selected candidates, because she was not having requisite qualification of Special B.Ed form any University. At this juncture, the second respondent got clarification from the Director, National Institute for the Empowerment of persons with Intellectual Disability (NEPID), Secunderabad and trying to appoint the fifth respondent as School Assistant (Special Education) as per merit list in the jurisdiction of Respondents Nos.3 & 4 as arbitrary, illegal against Articles 14, 16, 19 & 21 of the Constitution of India.
The petitioner further contended that, as per the above notification, if any clarification is required to consider the fifth respondent's educational qualifications, shall be obtained from the MSM,J W.P No.20949 of 2020 4 Rehabilitation Council of India, New Delhi. But, the Respondents No.2 to 4 without calling clarification from the Rehabilitation Council of India, who is competent authority to decide the dispute as per notification, but the Respondents No.2 to 4 with a malafide intention to get favourable orders in favour of the Respondents No.5, got the clarification from the Director, National Institute for the Empowerment of persons with Intellectual Disability (NEPID), Secunderabad, who is not competent to give opinion in regarding to Bachelors Degree possessed by the Respondents No.5 from Osmania University is equivalent to Degree with Spl.B.Ed is arbitrary, illegal against Articles 14, 16, 19 & 21 of the Constitution of India.
As per the guidelines of Rehabilitation Council of India Notification No.7-91/RCI-2011, dated 11.01.2012 prescribes the Minimum Required qualification for appointment of Special Education Teachers. But the respondents No.2 to 4 without considering the guidelines issued by RCI and without seeking any clarification from RCI, Delhi trying to appointment fifth respondent as School Assistant (Special Education) is arbitrary, illegal against Articles 14, 16, 19 & 21 of the Constitution of India and requested to issue direction as stated supra.
The fifth respondent filed counter affidavit, denying material allegations, inter alia contending that, she possessed requisite qualification to appear for the examination as she successfully completed Intermediate from Board of Intermediate Education and she joined three years Bachelor of Mental Retardation course during MSM,J W.P No.20949 of 2020 5 the academic year 1999 to 2002 and passed Part-I in Second Division. Part-II is First Division (three years course of Bachelor of Mental Retardation by the individual from Osmania University during the academic year 1999 to 2002) is equivalent to Degree with Spl.B.Ed and also the same certificate is registered before the Rehabilitation Council of India (RCI) on 26.09.2003 with registration CRR No.A05514, the registration is renewed before the authority from time to time and thereafter, passed P.G Diploma in Child Psychology with First Division and also passed Advanced Certificate Course in Inclusive Education (Cross Disability) for the academic session 2018 from National Institute for Empowerment of Persons with Multiple Disabilities (Divyangjan) (NIEPMD) which is an adjunct body of Rehabilitation Council of India (RCI).
The Commissioner of School Education issued Notification No.768/TRC-1/2018 for Teacher Eligibility Test cum Teacher Recruitment Test (TET-cum-TRT) in pursuance of the orders of the Government in G.O.Ms.No.24 on 15.02.2019 and invited the applications for post of School Assistants (Special Education) under Inclusive Education for Disabled Children at Secondary Stage (IEDSS) under the Andhra Pradesh Samagra Shiksha (SMS).
On the notification of Commissioner of School Education (Notification No.768/TRC-1/2018) DSC-2019, the fifth respondent applied for the post of School Assistant (Special Education) in Krishna District and appeared computer based test with Hall Ticket No.19060180, accordingly, secured 57.5 marks out of 100 marks, she got 17th Rank in General Merit list in Krishna District.
MSM,J W.P No.20949 of 2020 6 While it stood thus, the District Educational Officer, Krishna, Machilipatnam sent a letter Rc.No.3848/E2/2019 dated 08.10.2020 to the Director of School Education stating that for further clarifications whether the three years course of Bachelor of Mental Retardation acquired by the individual from Osmania University (from 1999-2002) is equivalent to degree with Spl.B.Ed or not, thereafter on that letter, the Government of Andhra Pradesh, Department of School Education received clarification from the Director, National Institute for the Empowerment of Persons with Intellectual Disabilities (NIEPID), Secunderabad, thereafter, the Director, Department of School Education, Andhra Pradesh sent a memo to the District Educational Officer, Krishna, Machilipatnam vide Memo No.ESE02- 20021/55/2020-RECTMT-CSE on 03.11.2020 regarding the clarification that the three years course of Bachelor of Mental Retardation acquired by the individual from Osmania University (from 1999-2002) is equivalent to Degree with Spl.B.Ed.
The fifth respondent further submitted that, after clarification memo received from the Director, School Education, Department of Andhra Pradesh, the District Educational Officer selected the fifth respondent as School Assistant (Special Education) under OC (W) Category, posted the fifth respondent at Z.P. High School, Mandavalli on 11.11.2020 and she joined as teacher in the same school as per proceedings dated 12.11.2020.
The petitioner filed this petition before this Court against Respondent Nos. 1 to 5 for appointment of School Assistant (Special Education) post, contrary to the educational qualifications. It is MSM,J W.P No.20949 of 2020 7 further submitted that the petitioner is only 39th ranker in General Merit List and got 52 marks out of 100 in Krishna District, but in fact, her name has not appeared in three provisional selection list (Phase-I, Phase-II and Phase-III) (provisional list prepared with roster system), and he is not entitled for appointment as School Assistant (Special Education) post, as the fifth respondent secured higher marks than the petitioner. Since the selection is based on merit, the petitioner who secured higher marks is entitled for appointment. Accordingly, she was appointed and therefore, there are absolutely no grounds to grant the relief claimed by this petitioner at this stage.
During hearing, Sri Nagaraju Naguru, learned counsel for the petitioner contended that appointment of fifth respondent as School Assistant (Special Education) is illegal, since the fifth respondent did not possess requisite qualification for being appointed as School Assistant (Special Education) and that the clarification if any required is to be obtained from National Institute of Mental Health and Neuro- Sciences (NIMHANS), Bangalore and not from National Institute for the Empowerment of Persons of Intellectual Disabilities (NIEPID), Secunderabad. But, with a malafide intention, the clarification was called from National Institute for the Empowerment of Persons of Intellectual Disabilities (NIEPID) to select the fifth respondent as School Assistant (Special Education) and the proposed appointment of fifth respondent as School Assistant (Special Education) is illegal, arbitrary and requested to issue a direction as sought for.
Respondent Nos. 1 to 4 did not file any counter affidavit, whereas, learned counsel for the fifth respondent Sri K. Simhachalam contended that, the relief claimed by the petitioner became MSM,J W.P No.20949 of 2020 8 infructuous, as the fifth respondent was already appointed as School Assistant (Special Education) and discharging her duties since 12.11.2020 at Z.P. High School, Mandavalli and therefore, the relief sought by the petitioner cannot be granted to this petitioner. in addition to the above contention, learned counsel for the fifth respondent also contended that the clarification issued by the National Institute for the Empowerment of Persons of Intellectual Disabilities (NIEPID) is sufficient and it is competent institute to issue such clarification. Therefore, when the Executive Body decided and issued clarification, this Court cannot set-aside the same and requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:
1. Whether the petitioner is entitled to a declaration that the proposed appointment of this petitioner is illegal, arbitrary and vioaltive of Articles 14, 16, 19 and 21 of the Constitution of India?
2. Whether the fifth respondent possessed requisite qualification for being appointed as School Assistant (Special Education) in terms of eligibility criteria fixed in Notification No.768/TRC-
1/2018, dated 15-02-2019. If, not, whether this Court can decide the eligibility of fifth respondent and direct the Respondent Nos. 2 to 4 not to appoint the fifth respondent as School Assistant (Special Education) in Krishna District. POINT No.1:
This writ petition is filed to declare the action of Respondent Nos. 2 to 4 in trying to issue appointment order in favour of the fifth respondent as School Assistant (Special Education), in contrary to the educational qualifications prescribed in Special DSC (IEDSS), 2019 MSM,J W.P No.20949 of 2020 9 through G.O.Ms.No.24, School Education (Exams) Department dated 15.02.2019 in para 11 Qualifications and Eligibility.
Refuting the contentions, the fifth respondent besides raising several other grounds submitted to the Court in the counter affidavit that, the fifth respondent was selected and appointed as School Assistant (Special Education) and posted at Z.P. High School, Mandavalli vide Rc.No.3848/E2/2019 dated 11.11.2020. The fifth respondent reported to duty and she is discharging her duties as School Assistant (Special Education). Despite raising such contention, the petitioner did not amend the prayer suitably. Therefore, the relief claimed by this petitioner became infructuous. On this ground alone, the petition is liable to be dismissed.
However, the petitioner is at liberty to question the appointment of the fifth respondent by filing appropriate petition.
Hence, the point is held against this petitioner and in favour of the respondents, POINT No.2 One of the major grounds raised by the petitioner is that, the fifth respondent did not possess requisite qualification and the qualification she possessed is not equivalent to the qualification prescribed in Notification No.768/TRC-1/2018, dated 15-02-2019. However, the respondents contended that the special degree obtained from Osmania University is equivalent degree with Special B.Ed. The Government obtained clarification from National Institute for the Empowerment of persons with Intellectual Disability (NEPID), MSM,J W.P No.20949 of 2020 10 Secunderabad and whether such institution is competent to issue clarification or not is a different question.
In view of my finding in Point No.1, I am not inclined to decide the eligibility of the fifth respondent in terms of Notification No.768/TRC-1/2018, dated 15-02-2019, as this Court gave liberty to the petitioner to question the appointment of the fifth respondent, by filing separate writ petition, if advised.
In the result, writ petition is dismissed, leaving it open to the petitioner, if advised to challenge the appointment of fifth respondent on any of the grounds.
Consequently, miscellaneous applications pending if any, shall stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:20.01.2021 SP