Jharkhand High Court
Respondent/ vs Rampad Pandit on 8 September, 2022
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
LPA No. 331 of 2019
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The State of Jharkhand through the Director, Secondary Education,
Government of Jharkhand, PO & PS Dhurwa, Ranchi
... .... Respondent/Appellant
Versus
1.Rampad Pandit, son of late Fakirchand Pandit, resident of village-
Rangamatia, PO- K.Bhogtadih, PS Mahalia, District Dumka, at present
working as Head Master at Sri Vijay Bhakti Prem Suri Swetambar Jain High
School, Madhuban, PO & PS Pirtand, District Giridih.
... .... Writ Petitioner/Respondent
2.The Secretary, Secondary Education, Human Resource Development,
Government of Jharkhand, PO & PS Dhurwa, Ranchi.
3. The Director Secondary Education, Government of Jharkhand, PO & PS
Dhurwa, District Ranchi.
4. The District Education Officer, Giridih (Jharkhand).
... ... Respondents/ Proforma Respondents
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant(s) : Mr. Sachin Kumar, AAG-II
For the Respondent No.1: Mr. Afaque Ahmed, Advocate;
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ORDER
th 8 September 2022 Per, Shree Chandrashekhar,J.
The State of Jharkhand has taken exception to the order dated 30th January 2018 passed in WP(S) No. 4412 of 2008.
2. By this order, the writ Court has issued a direction to the Director, Secondary Education, Government of Jharkhand to reconsider the case of the writ petitioner who is the respondent No.1 before us for approval of his promotion to the post of Head Master. This direction has been issued by the writ Court on a premise that Bachelor of Physical Education (in short, "B.P.Ed.") degree possessed by the respondent No.1 is equivalent to Bachelor of Education (in short, "B.Ed.") degree.
3. The brief facts of the case are that the respondent No.1 having qualifications of M.A and B.P.Ed degree was appointed as Assistant Teacher in Sri Vijay Bhakti Prem Suri Swetambar Jain High School, Madhuban, Giridih in the year 1982. In the year 2001, the respondent No.1 was made in-charge Headmaster of the said school by the Managing Committee after 2 LPA 331 of 2019 Mr. Bhim Sen Manjhi was relieved from the post of Headmaster. Thereafter, he was granted promotion to the post of Headmaster by the Managing Committee vide its proceeding dated 22th April 2007 and the said proceeding was sent for approval. However, the Director of Secondary Education returned the proposal for approval on the ground that he possesses B.P. Ed. degree.
4. The learned writ Court held as under:
"5. From the pleadings available on records, it appears that both the petitioner and respondents have relied and emphasized on Rule 4 of the Bihar Nationalized Secondary School (Service Condition Rules), 1983 to justify their case, hence, it would be profitable to reproduce the relevant provision, Rule 4 which prescribes minimum eligibility and qualification for appointment/promotion to the post of Headmaster:
Rule 4: (i).Bachelor degree of recognized university; (ii). B.Ed., Dip-in-Ed., Dip-in-teach/C.T or any equivalent qualification of Teachers Training by any recognized university or Board recognized by the State Government. (iii).xxxx xxxx xxxx
6. From plain reading of Rule 4 (ii), it is manifestly clear that incumbent either should have B.Ed/ Dip-in-Ed./Dip-in-teach/C.T or any equivalent qualification of teachers' training. Admittedly, the petitioner has equivalent degree of B.P.Ed i.e. Bachelor of Physical Education, hence, the denial of promotion on the ground that the petitioner does not have equivalent degree of B.Ed is not countenanced. As a matter of fact, B.P.Ed is one of the stream of B.Ed as it is Bachelor in Physical Education; degree is same -
stream is different. Here, in the instant case, rules of promotion neither specifies any stream nor debars specifically to the effect that any particular stream of particular candidate shall not be considered.
7. View of this Court gets fortified by the decision rendered in the case of Dhananjay Malik & Ors Vs. State of Uttaranchal & Ors as reported in (2008) 4 SCC 171.
8. For the logical sequiter to the aforesaid discussions, portion of letter dated 05.05.2008 issued by respondent no. 3-Director, Secondary Education is hereby quashed and set aside and respondent no. 3 is directed to re-consider the case of the petitioner for grant and approval to the promotion on the post of Headmaster treating degree of B.P.Ed equivalent to B.Ed in accordance with the Rules of promotion of 1983.
9. With the aforesaid observations and directions, the writ petition stands allowed."
5. At the outset, we may indicate that the respondent No.1 who claims that he was appointed on the post of Assistant Teacher in Sri Vijay Bhakti Prem Suri Swetambar Jain High School, Madhuban, Giridih did not make the said school a party in the writ proceeding, the management of which had appointed him. Furthermore, the respondent No.1 did not produce a copy of the appointment letter which only could have disclosed the terms and conditions of his appointment on the post of Assistant Teacher in the said 3 LPA 331 of 2019 High School.
6. The issue raised before the writ Court was whether in terms of Rule 4(ii) of the Bihar Nationalized Secondary School (Service Condition) Rules, 1983, a degree in B.P.Ed. is an equivalent qualification to Teacher's Training. The writ Court accepted the stand taken by the respondent No.1 that B.P.Ed. is an equivalent qualification to Teacher's Training.
7. The relevant portions of Rule 4 of the Bihar Nationalized Secondary School (Service Condition) Rules, 1983 are extracted below:
"Rule 4:
(i) Bachelor degree of recognized university;
(ii) B.Ed., Dip-in-Ed., Dip-in-teach/C.T or any equivalent qualification of Teachers Training by any recognized university or Board recognized by the State Government;
(iii) ..."
8. A glance at Rule 4 (ii) of the Rules, 1983 would make it clear that any other qualification of Teacher's Training must be similar to B.Ed, Diploma in Education, Diploma in teaching/CT by any University or Board recognized by the State Government so as to fall under Rule 4 (ii) of the Bihar Nationalized Secondary School (Service Condition) Rules, 1983.
9. A degree in B.P.Ed. (Bachlor of Physical Education) is an altogether separate degree which cannot be equated with B.Ed. degree. Rather, B.P.Ed. is a degree recognized for appointment on the post of physical instructors and by no means such degree can be equated with B.Ed. degree which is a Teacher's Training degree.
10. The judgment in "Dhananjay Malik & Ors. v. State of Uttaranchal & Ors" (2008) 4 SCC 171), on which the learned counsel for the respondent No. 1 has placed heavy reliance, refers to appointment on the post of Assistant Teacher (Physical Education) for which the degree of B.P.Ed. has been treated at par with B.A./B.Sc./B.Com. degree and while so reliance placed by the writ Court on the said judgment was completely out of the context. We may also indicate that the respondent No.1 has done Masters in Political Science and on his own saying he acquired the degree of B.P.Ed. while in service.
11. In "Dhananjay Malik" the Hon'ble Supreme Court has observed as under:
"12. The next question that arises for consideration is as to whether the Government can, by way of administrative instructions, fill up 4 LPA 331 of 2019 the gaps and supplement the Rules and issue instructions not inconsistent with the Rules already framed, if Rules are silent on any particular point?
13. The 1983 Rules prescribe the requisite educational qualifications for the post of Assistant Teacher, Physical Education as under:
"Graduation degree in Physical Education or diploma in the Physical Education from any recognised Institution."
The aforesaid Rule has been clarified by Government of India, Ministry of Education, on 26-11-1965 to the effect that BPE degree- holders should be treated on a par with those who hold BA/BSc, BCom degree plus a diploma in Physical Education and should not be required to possess an additional BA, BSc/BCom degree for purposes of employment as Directors of Physical Education or on other similar posts. The aforesaid position has been further clarified by the Government in Para 12 of its counter-affidavit that qualification of BPE includes the graduation as well as diploma of Physical Education.
14. A Constitution Bench of this Court in Sant Ram Sharma v. State of Rajasthan, has pointed out at AIR p. 1914 that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
15. The aforesaid ruling has been reiterated in para 9 of the judgment by a three-Judge Bench of this Court in Union of India v. K.P. Joseph as under: (SCC p. 196) "9. Generally speaking, an administrative order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the conditions of service.
16. For the reasons aforestated, civil appeals arising out of Special Leave Petitions (Civil) Nos. 1466 and 2743 of 2006 filed by the successful candidates are allowed. The impugned judgment and order of the Division Bench of the High Court is set aside. No costs."
12. In the above context, the Hon'ble Supreme Court held that the clarification issued by the Government of India, Ministry of Education can fill the gap in the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983.
13. Furthermore, there is a catena of judgments which hold that equivalence of degree or post cannot be decided in a writ proceeding because this is exclusive function of the executive which only can decide the qualification and equivalence of degree for a post.
14. For the aforesaid reasons, we find serious difficulty in according 5 LPA 331 of 2019 our approval to the writ Court's order dated 30th January 2018 which has been passed after superannuation of the respondent No.1 from service - he superannuated from service on 31st October 2016. The respondent No.1, therefore, cannot seek a direction for approval of the Proposition Statement for appointment on the post of Headmaster and his claim for the payment of salary and other allowances may lay against the Management of the school, in terms of the conditions of his appointment.
15. LPA No. 331 of 2019 is allowed.
16. IA No. 4111 of 2019 for stay stands disposed of.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 8th September, 2022 SB/Nibha-NAFR