Uttarakhand High Court
State Of Uttarakhand And Others. vs Akeel Ahmad on 21 September, 2017
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Delay Condonation Application No. 9750 of 2017
In
Special Appeal No. 532 of 2017
State of Uttarakhand
and others. ........Appellants.
Versus
Mohd. Hafeez. ...... Respondent.
With
Delay Condonation Application No. 9748 of 2017
In
Special Appeal No. 533 of 2017
State of Uttarakhand
and others. ........Appellants.
Versus
Akeel Ahmad. ...... Respondent.
With
Delay Condonation Application No. 9760 of 2017
In
Special Appeal No. 536 of 2017
State of Uttarakhand
and others. ........Appellants.
Versus
Smt. Ramana Praveen. ...... Respondent.
With
Delay Condonation Application No. 9758 of 2017
In
Special Appeal No. 537 of 2017
State of Uttarakhand
and others. ........Appellants.
Versus
Mohd. Haneef. ...... Respondent.
2
Present:
Mr. Paresh Tripathi, Chief Standing Counsel with Mr. Pradeep Joshi, Standing Counsel and Mr. Rajiv
Singh Bisht, Brief Holder for the State of Uttarakhand/ appellants.
Mr. Vinay Kumar, Advocate for respondents.
Dated: September 21, 2017
Coram:
Hon'ble K.M. Joseph, CJ.
Hon'ble Alok Singh, J.
Hon. K. M. Joseph, C.J. (Oral)
1. All the appeals raise similar issues, therefore, we dispose of all the appeals by this common judgment.
2. There is some delay in filing the appeals. Delay is not seriously opposed by learned counsel for the respondents. In the circumstances, after hearing Mr. Paresh Tripathi, Chief Standing Counsel for the State of Uttarakhand/appellants and Mr. Vinay Kumar, Advocate for the respondents, we are of the view that delay should be condoned. Accordingly, all the delay condonation applications will stand allowed. Delay will stand condoned.
3. Appellants are the respondents in the writ petitions. Writ petitions were filed seeking similar reliefs. We treat WPSS No. 513 of 2016 as leading case and the prayers sought in the said writ petition read as under:
"i. Issue a writ, order or direction in the nature of Certiorari calling for the original record and pleased to quash the impugned advertisement dated 19th Feb. 2016 along with amended advertisement dated 05.03.2016 (Annexure No. 1) issued by the respondent no. 2 i.e. Director, Elementary Education, Uttarakhand, Dehradun.
ii. Issue a writ, order or direction in the nature of Mandamus declaring that the minimum education and training qualification pertaining to Assistant Teacher (Urdu) given under Rule 9 (Ka) (i) and (ii) of Uttarakhand Government Primary 3 Education (Teacher) Service Rules, 2012 is illegal, arbitrary as well as unconstitutional therefore, same may be declared as ultra vires.
iii. Issue a writ, order or direction in the nature of Mandamus directing and commanding to the State Government to amend Rule 9 (Ka) incorporating therein that Moallim-e-Urdu certificate holders having certificate prior to 11.08.1997 would also be eligible to be appointed as Assistant Teacher (Urdu) in Government Primary Schools of Uttarakhand.
iv. Issue a writ, order or direction in the nature of Mandamus directing and commanding to the State Government to conduct TET Examination after getting approval from NCTE to recognize the Moallim-e-Urdu certificate as a valid degree for the purpose of appointment of Assistant Teacher (Urdu)."
4. All the writ petitioners do not possess Graduation with Urdu as a main subject. They do not have training qualification known as BTC. They also have not passed the Teachers Eligibility Test (TET) conducted by the Central Government / State Government in accordance with the guidelines framed by the NCTE for the post. The post, in question, is Assistant Master / Assistant Mistress for Government Primary School / Attached Government Primary School (Class I to V). Petitioners, however, possess the qualification known as Moallim-e-Urdu. The Rules governing the matter are known as the Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012 (hereinafter referred to as "2012 Rules"). Rule 9 provides for academic qualifications in so far as post, in question, is concerned. The Rule-makers have declared the educational qualification as follows:
"Educational Qualification for the post of Assistant Master / Assistant Mistress Government Primary School / Attached Government Primary School (Class 4 I to V) - i. Graduate from the University established by law in India: provided that for appointment of Assistant Teacher (Urdu), graduations with Urdu as a main subject shall be compulsory.
ii. Two years Diploma in Elementary Education (D.El.Ed) known as BTC in Uttarakhand from the concerned District Institute of Education and Training / District Resource Centre and Must have passed the Teacher Eligibility Test (TET), conducted by the State Government / Central Government in accordance with the guidelines framed by the NCTE for the purpose."
5. We have noticed the qualifications, which are possessed by the writ petitioners. In such circumstances, petitioners approached this Court and sought relief, which included the declaration of the said Rule as illegal. Learned Single Judge has proceeded to hold as follows:
"The qualification prescribed under the Recruitment Rules framed in the year, 2012 as well as in advertisement dated 19.02.2016 is that the candidate should possess B.A. with Urdu and B.T.C. and also qualified T.E.T. The respondent/State submits that the certificate of Mollim-E- Urdu is not equivalent to B.T.C. This controversy is no more res integra in view of the Judgment rendered by this Court in Writ Petition (S/B) No. 794 of 2002 dated 02.08.2003. The petitioner has also obtained his certificate/diploma before the cut off date.
The relevant para of the judgment reads as under-:
"For the above reasons only those petitioners who have obtained Moallim-EUrdu certificate before 11.08.1997 will be entitled to proper relief in this 5 petition. Since the candidates who were selected pursuant to advertisement dated 16.06.2002 issued by respondent no. 2 have not been impleaded as the respondents in this petitioner and, therefore, no relief in regard to the said advertisement is being granted to the petitioners."
Learned counsel for the petitioners, on the basis of the information supplied under the Right to Information Act, submits that no government degree college throughout the State of Uttarakhand is granting graduation degree with Urdu. The contention of the learned counsel for the respondent is that the B.A. (Urdu) can be obtained by the candidates from the Open University. It is for the State Government to lay down the qualification under the Recruitment and Promotion Rules.
The scope of judicial review in this matter is very limited. However, in the present case since no government degree collage is awarding the B.A. (Urdu) degree. This qualification should not have been prescribed merely that the candidate could obtain the B.A. degree inUrdu from the Open University. The Open University is noble idea but it cannot be a substitute for a regular student, who attended the college as regular student. The State has also taken ancillary ground that petitioner did not possess T.E.T. qualification. The fact of the matter is that the State Government till date has not sought approval from the N.C.T.E. for holding T.E.T. examination for the petitioner and the similarly situate persons, who have obtained their certificate in Mollim-E-Hindi, equivalent to B.T.C. Accordingly, the writ petitions are allowed. The petitioners are declared eligible for holding the post of Assistant Teacher (Urdu) on the basis of their certificate of Mollim-E- Urdu by treating it at par with B.T.C. and without insisting for Graduation with Urdu. The State Government 6 is also directed to take up the matter with the N.C.T.E. for holding the T.E.T. Examination for the petitioners and the similarly situate persons within a period of six weeks from today. Pending application, if any, stands disposed of accordingly. Let copy of this order be kept in all the connected petitions."
6. Feeling aggrieved, State is before us.
7. We heard Mr. Paresh Tripathi, Chief Standing Counsel with Mr. Pradeep Joshi, Standing Counsel & Mr. Rajiv Singh Bisht, Brief Holder for the State of Uttarakhand / appellants and Mr. Vinay Kumar, Advocate for the respondents.
8. Mr. Paresh Tripathi, Chief Standing Counsel for the State of Uttarakhand / appellants would, in fact, point out that reliance placed by learned Single Judge on the judgment of this Court to hold that qualification of Moallim-e-Urdu can be treated as equivalent to qualification of BTC is without any basis. He drew our attention to Rules, which prevailed in the State of Uttar Pradesh known as the U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "1981 Rules"). The educational qualification for the post of Assistant Master / Assistant Mistress Junior Basic Schools in the 1981 Rules reads as follows:
"Educational Qualification for the post of Assistant Master and Assistant Mistress of Junior Basic Schools :
A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training 7 Course recognized by the Government as equivalent thereto:
Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course.
(2) The essential qualification of candidates for appointment to a post referred to in sub-clauses (iii) and
(iv) of Clause (h) of Rule 5 for teaching Science, Mathematics, Craft or any language other than Hindi and Urdu shall be as follows- (i) A Bachelor's degree from a University established by law in India or a degree recognized by the Government as equivalent thereto with Science, Mathematics, Craft or particular language, as the case may be, as one of the subjects, and (ii) Training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto.
(3). The minimum experience of candidates for promotion to a post referred to in Clause (b) of Rule 5 shall be as shown below against each."
9. He would essentially contend that perusal of the qualification, as contained in the 1981 Rules, recognizes a possibility of a person not having BTC but possesses any other training course, which is recognized by the Government or equivalent thereto. It was in this context of the said Rules, he would contend that Moallim-e-Urdu was being treated as equivalent and it was being treated as equivalent to BTC provided they have obtained it prior to 1997. He would contrast the 1981 Rules with 2012 Rules and point out that in the 2012 Rules, there is no scope for bringing equivalence of qualification and only 8 qualification which is recognized is 2 years Diploma in Elementary Education (D. El. Ed.) known as BTC in Uttarakhand from the concerned District Institute of Education and Training / District Resource Centre. There is no scope for equivalence, it is pointed out. The course D.El.Ed is of two years whereas course of Moallim-e-Urdu is of one year.
10. Per contra, Mr. Vinay Kumar, on behalf of the writ petitioners attempted to draw support from the certain Government Orders dated 23.08.2005 and 18.11.2005 produced as Annexure Nos. 6 and 7 to the writ petition. The purport of the said orders, according to him, is that in case, no person having the requisite qualifications as mentioned in the Rules is available, then preference shall be given to those persons, who are having Moallim-e-Urdu.
11. The answer to this argument on behalf of the State is that these Government Orders cannot have relevance after 2012 Rules and no Government order has been issued after the 2012 Rules.
12. There can be no gainsaying that the matter is governed by 2012 Rules. There can be no quarrel with the proposition that person to be eligible must possess qualification which are prescribed under the statutory Rules or Government Order in absence of statutory Rules.
13. Three qualifications are clearly required to make a person eligible to be appointed as Assistant Master / Assistant Mistress in Urdu with which we are concerned. The qualifications are:
i. Person must possess Graduation with Urdu as a main subject.9
ii. He must possess qualification known as BTC. (There is no provision for equivalence under the Rules).
iii. He must possess TET.
14. Writ petitioners do not possess any of the said qualifications. Even for a moment assuming that Moallim-e-Urdu can be treated as equivalent to BTC. Admittedly, writ petitioners do not have Graduation with Urdu as main subject. We do not see how in such circumstances, learned Single Judge could have allowed the writ petitions and declared the petitioners eligible for appointment. Declaring the writ petitioners eligible for the post Assistant Master (Urdu), on the basis of certificate Moallim-e- Urdu treating it at par with BTC and without insisting for Graduation in Urdu is illegal. It is noted that in fact, Rule makers make it clear that in respect of Assistant Teacher (Urdu), Graduation with Urdu as a main subject is compulsory. We have already noticed the difficulty with the writ petitioners. Assuming for a moment that certificate of Moallim-e-Urdu obtained by the petitioners is equivalent to BTC, even then, they do not comply with the other requirement, as they do not have Graduation with Urdu as a main subject, therefore, it is quite clear that judgment of learned Single Judge cannot be sustained.
15. Accordingly, all the special appeals are allowed. Impugned judgment will stand set aside. It is brought to our notice by Mr. Paresh Tripathi, Chief Standing Counsel that appellants have already taken up the matter for holding TET examination with the NCTE. We only direct that TET examination will be held for all eligible persons. We have not pronounced on whether Moallim-e-Urdu can be treated as equivalent to BTC.
(Alok Singh, J.) (K.M. Joseph, C.J.)
21.09.2017 21.09.2017
SKS