Himachal Pradesh High Court
State Of H.P. And Another vs Deepak Sharma And Another on 22 August, 2023
Bench: M.S. Ramachandra Rao, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 201 of 2014
Decided on : 22.08.2023
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State of H.P. and another ....Appellants
Versus
Deepak Sharma and another ...Respondents
Coram
of
The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1
rt
For the appellants : Mr. Anup Rattan, Advocate General
with M/s Rakesh Dhaulta and Pranay
Pratap Singh, Additional Advocate
Generals and M/s Arsh Rattan and
Sidharth Jalta, Deputy Advocate
Generals.
For the respondents : None for the respondents.
M.S. Ramachandra Rao, Chief Justice (Oral)
This Letters Patent Appeal is preferred by the State challenging the order dt. 08.05.2014 passed by learned Single Judge in CWP No. 10483 of 2012.
2) The said Writ petition was decided alongwith four other Writ petitions by the learned Single Judge.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 24/08/2023 20:33:05 :::CIS 23) Respondent no. 1 had passed B.A. three years course from Himachal Pradesh University with 45.5% marks as per Annexure .
P-2 mark sheet dt. 05.07.2010, and thereafter, appeared for the B.Ed. Course Examination conducted by the said University and passed the examination held in April, 2011 as per Annexure P-3 of certificate dt. 27.09.2011.
4) The Himachal Pradesh Subordinate Services Selection Board rt issued an advertisement for filling up the post of TGTs in various subjects and respondent no. 1 applied for the post of TGT (Arts) Teacher.
5) He was found suitable and was nominated by the Sub Regional Employment Officer, Directorate of Sainik Welfare, (Ex-
servicemen Cell), Himachal Pradesh.
6) Respondent no. 1 was however not offered any appointment on the ground that he had not obtained 50% marks in Graduation as per Recruitment and Promotion Rules notified on 31.05.2012.
7) He therefore filed the instant Writ petition challenging the said decision.
::: Downloaded on - 24/08/2023 20:33:05 :::CIS 38) The Himachal Pradesh Elementary Education Department Trained Graduate Teachers Class-III (Non-Gazetted) Recruitment and .
Promotion Rules, 2009 as notified on 31.05.2012 after amendment thereto, prescribe the following qualifications for filling the post of TGT (Arts):-
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(i) B.A./B.Com with at least 45% marks and 1 year Bachelor in Education rt (B.Ed.) Or B.A./B.Com with at least 45% marks and 1 year Bachelor in Education (B.Ed.) in accordance with NCTE (Recognition norms and Procedure) regulations issued from time to time in this regard."
9) Learned Single Judge noted that the NCTE has been changing the minimum criteria for admission in the B.Ed. course from time to time in the following manner:
Initially it prescribed 45% marks for seeking admission in B.Ed. course as per norms dt. 18.11.2002; thereafter it was raised to 50% marks on 21.7.2006; it was then reduced to 45% marks on 10.12.2007; increased it to 50% marks on 31.08.2009; again ::: Downloaded on - 24/08/2023 20:33:05 :::CIS 4 reduced it to 45% marks vide notification dt. 23.08.2010 and 29.07.2011.
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Learned Single Judge was of the view that the NCTE's prescription of cut-off-date of 31.08.2009, has no reasonable nexus with the object sought to be achieved and if the object is to ensure of that only those candidates are appointed as teachers, who are qualified to seek admission to B.Ed. course as per NCTE norms rt laid down, there has to be certainty in the norms prescribed; and there cannot be change in the same frequently without any rationale.
Learned Single Judge held that letter dt. 29.06.2013 of the Secretary (Elementary) Education to the Government of Himachal Pradesh disqualifying the petitioner cannot be sustained, that the cut-off-date i.e. 31.08.2009 prescribed in the said letter is bad in law, and is in contravention to the norms laid down by NCTE. He also observed that the appellants were required to change the Recruitment and Promotion Rules on the basis of norms laid down by NCTE for seeking admission to B.Ed. course, and they cannot ::: Downloaded on - 24/08/2023 20:33:05 :::CIS 5 take the plea that frequent changes cannot be carried out in the Recruitment and Promotion Rules due to lengthy procedure.
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He therefore allowed the Writ petition and directed the appellants to issue appointment letter to the respondent for the post of TGT (Arts) within three weeks.
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10) Assailing the same, this appeal is filed.
11) It is contended by learned Advocate General appearing for the rt appellants that the B.Ed. Degree obtained by the respondent was on the basis of 45.5% marks obtained by respondent in the B.A. Course; that the respondent having taken the examination in April, 2011 is presumed to have taken admission in B.Ed. course in H.P. University in July, 2010, which is prior to the date of notification dt. 23.08.2010 when marks were reduced to 45%; and therefore the respondent was rightly held to be ineligible.
He also placed reliance on the judgment of Hon'ble Supreme Court in State of Uttar Pradesh and Others Versus Shiv Kumar Pathak and Others2, which held that the State Government is bound by the NCTE regulations issued from time to time.
2(2018) 12 SCC 595 ::: Downloaded on - 24/08/2023 20:33:05 :::CIS 6
12) There is no quarrel with the said proposition, but the question which is to be considered is:
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" whether the date on which the respondent got admission to the B.Ed. course in H.P. University is before 23.08.2010 or thereafter?"
of If it is before the said date, then such admission would be granted only if he secured 50% marks in B.A. But if it is after the rt said date, he could have got admission even if he got above 45% marks in B.A and even though he did not get 50% marks.
13) This is a question of fact which ought to have been pleaded by the appellants before the learned Single Judge and evidence must also have been placed as to when he was given admission to the said course by the University.
14) Since the respondent was granted admission by the University though he got only 45.5% in BA, and since the University is presumed to follow the NCTE norms, it appears that he was granted admission after 23.8.2010 when the qualifying marks in BA was reduced to 45% and above from 50% by the NCTE.
::: Downloaded on - 24/08/2023 20:33:05 :::CIS 715) When the appellants are seeking to disqualify the respondent on the ground that his admission was prior to 23.08.2010, they are .
required to plead the same in their reply in the Writ petition and also place material before this Court to come to the conclusion that the respondent was admitted to the B.Ed. course in the H.P. of University before 23.08.2010.
16) Unfortunately, there is neither a pleading in the reply filed to the rt Writ petition by the appellants nor there is any material placed to that effect before this Court.
17) Though learned Advocate General contended that normally the B.Ed. course would start in July of the academic year, there is no such fixed pattern and it is possible that in 2010, it could have been started later.
18) It is always a question of fact in a given case whether the admission of a particular person to a particular course was before a particular date or after a particular date. When this can be established by evidence by the appellants, and when they have not chosen to do so, an adverse inference has to be drawn against them ::: Downloaded on - 24/08/2023 20:33:05 :::CIS 8 that if such evidence would have been produced, it would not have supported their case.
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19) In this view of the matter, we do not find any merit in the instant appeal and the same is accordingly dismissed.
20) Pending miscellaneous application(s), if any, also stand disposed of of accordingly.
rt (M.S. Ramachandra Rao)
Chief Justice
(Ajay Mohan Goel)
August 22, 2023 Judge
(narender)
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