Allahabad High Court
Upendra Rai vs State Of Uttar Pradesh And Others on 18 February, 2000
Equivalent citations: 2000(2)AWC865, (2000)2UPLBEC1340
JUDGMENT S.R. Singh, J.
1. The appellant who holds the certificate of having passed the Intermediate Examination, 1991, conducted by the U. P. Board of High School and Intermediate Education and two-year Diploma-in-Education Course 1996-98 from Zila Shiksha and Training Institute, Jabalpur, (in short 'DIET') (Madhya Pradesh) has invoked the special appeal jurisdiction of this Court being aggrieved by the judgment dated 7.12.1999 of the learned single Judge who dismissed the writ petition instituted by the appellant. The subject-matter of impugnment in the writ petition was the legality of advertisement dated 28.4.1999 and the Government circular dated 11,8.1997. The circular dated 11.8.1997 showed that it had been decided by the Government to fill up the posts of Assistant Teacher in Junior Basic Schools only from such candidates who have, according to the provisions of the U. P. Basic Education (Teachers) Service Rules, 1981, obtained B.T.C., Hindustani Teachers Certificate, Junior Teachers Certificate and Teaching Certificates from institutions run by the Government of Uttar Pradesh and to rescind with immediate effect the equivalence to B.T.C. granted to other training courses and degrees/diplomas. So far as impugned advertisement dated 28.4.1999 is concerned, it has been envisaged therein that only those candidates could apply for appointment as Assistant Teachers in the Junior Basic Schools situated in rural areas who have had to their credit the Basic Teacher Certificate called B.T.C. awarded by Zila Shiksha Prashikshan Sansthan, Gorakhpur [Rajkiye Kanya Diksha Vidyalay) upto 1998 besides other qualification as delineated in the Government Circular dated 11.8.1997. 'Diploma in Education was earlier known as Buniyadi Shiksha Pramanpatra of Madhya Pradesh, which was equivalent to B.T.C. of Uttar Pradesh.
2. The question that emerges for consideration is whether the appellant was eligible for appointment to the post of Assistant Teacher in Junior Basic Schools run by the Uttar Pradesh Basic Shiksha Parishad. The requisite academic qualification prescribed for the post of Assistant Master and Assistant Mistress of Junior Basic Schools under Rule 8 of the U. P. Basic Education (Teachers) Service Rules. 1981, is ; "Intermediate Examination of the Board of High School and Intermediate Education Uttar Pradesh or any other qualification recognised by the Government as equivalent thereto together with training qualification consisting of a Basic Teacher Certificate, Hindustani Teacher Certificate. Junior Teacher Certificate, Certificate of teaching or any other training course recognised by the Government as equivalent thereto.' The appellant, as stated supra, does not hold training qualification consisting of Basic Teacher Certificate, Hindustani Teacher Certificate or Junior Teacher Certificate. What he holds is 'Diploma in Education (in short "D.Ed.") which was awarded to him after he completed two years' course from DIET, Jabalpur (M.P.). It has been submitted by Sri Arvfnd Srivastava, learned counsel appearing for the petitioner that the aforesaid certificate awarded by DIET, Jabalpur (M.P.) was earlier recognised as equivalent to Basic Teacher Certificate (B,T.C.) of Uttar Pradesh as is evident from the circular No. (31/20490-639/15-3 (25)/85-86 dated 16.3.1986 issued by Director of Education (Basic) Uttar Pradesh, Allahabad, a copy of which has been annexed as Annexure-3 to the stay petition but its equivalence to B.T.C.. as stated supra, has been rescinded by the Government vide circular dated 11.8.1997. It has been canvassed by the learned counsel that DIET. Jabalpur (M.P.) is a recognised Institution as per the provisions of the National Council for Teachers Education Act, 1993, an Act enacted to provide for the establishment of a National Council for teacher education with a view to achieving planned and co-ordinated development for teachers' education system throughout the country ; the regulation and proper maintenance of norms and standard in the Teachers Education System : and for matters connected therewith and that being so, proceeds the submission, the Government Circular de-recognising the certificate awarded by the DIET. Jabalpur has the effect of over-riding the provisions of the National Council for Teacher Education Act. 1993, which militates against the provisions of Article 254 of the Constitution of India. Reliance has also been placed by the learned counsel on proviso to Section 11 of the U. P. Basic Education Act, 1972, as substituted by the U. P. Basic Education (Amendment) (Second) Ordinance, 1999. In aid of his contention that subsequent de-recognition would not deprive the appellant of the benefit of qualification acquired prior to de-recognition, it has been submitted by the learned counsel that the diploma in education awarded to the petitioner by the DIET, Jabalpur IM.P.) was a training course equivalent to B.T.C. of Uttar Pradesh prior to the impugned circular dated 9.11.1997 and the appellant had obtained the said Diploma in Education before the commencement of the U. P. Basic Education (Amendment) (Second) Ordinance. 1999 and hence, the appellant was in any case, entitled to be considered for appointment. In opposition, the learned standing counsel advanced the submissions that the provisions of the National Council for Teachers Education Act. 1993 would not override the relevant serviced rules made under the provisions of the U. P. Basic Education Act. 1972 and further that the recognition of a certificate of teaching or any other training course as equivalent to B.T.C. was within the exclusive domain of the State Government as per Rule 8 of the U. P. Basic Education Teachers Service Rules, 1981 and since the equivalence was withdrawn by the Government, the appellant could not claim entitlement to be considered for appointment merely because earlier, the 'Diploma-in-Education' of Madhya Pradesh was accorded equivalence to B.T.C. of Uttar Pradesh.
3. We have bestowed our thoughtful consideration to the submissions made across the bar. So far as the National Council for Teacher Education Act. 1993 is concerned, it was enacted, as stated supra, to provide for the establishment of a National Council of Teachers Education with a view to accomplishing planned and coordinated development for teachers education system throughout the country and regulation and proper maintenance of norms and standards in the teachers education system and therefore, in case, any provision in the U. P. Basic Education Act, 1972, or rule made thereunder is found to be in conflict with any provision embodied in the aforestated Central Act, the same will have to be discounted to the extent of inconsistency in view of the provisions contained in Article 254 of the Constitution of India, clause (1) of which provides that if any provision of a law made by the Legislature of State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the concurrent list, then, subject to the provisions of sub-clause (2), the law made by Parliament, whether passed before or after the taw made by the Legislature of such State, of, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. Clause (2) of Article 254 visualises that where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State : provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the Stale.
4. The question that begs consideration is whether any provision contained in the U. P. Basic Education Act. 1972, or the U. P. Basic Education (Teachers) Service Rules, 1981, is repugnant to any provision contained in the Central Act. The 'teacher education' as defined in Section 2 (1) of the Central Act means programmes of education. research or training of persons for equipping them to teach at pre-primary, primary, secondary and senior secondary stages in schools and includes non-formal education, part-time education, adult education and correspondence education. Section 12 of the Central Act enumerates the functions of the National Council for teacher education as established under subsection (1) of Section 3 of the Act. The functions enumerated in Section 12, inter alia, include : (a) laying down guidelines in respect of minimum qualification for a person employed as a teacher in schools or in recognised institutions, (b) laying down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum ; and (c) formulation of schemes for various levels of teacher education and identify recognised institutions and set up new institutions for teacher development programmes. Section 14 of the Act enjoins upon every institution offering or intending to offer course or training in teacher education to make an application to the Regional Committee concerned for grant of recognition. Section 15 requires prior permission of the Regional Committee as a condition precedent to starting any new course or training in teacher education by any recognised institution and according to Section 56 which has an overriding effect, as the expressions 'notwithstanding anything contained in any other law for the time being in force' suggests, no examining body shall, on or after the appointed day, grant affiliation, whether provisional or otherwise, to any institution or hold examination, whether provisional or otherwise, for a course or training conducted by a recognised institution unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 of permission for a course or training under Section 15. Section 17 provides for withdrawal of recognition in the event of contravention of the provisions of the Act. Clause (4) of Section 17 visualises that if an institution offers any course or training in teacher education after the coming into force of the order withdrawing recognition or where an institution offering course or training in teacher education immediately before the appointed day fails or neglects to obtain 'recognition or permission under this Act, the qualification in teacher education obtained pursuant to such course or training or after undertaking a course or training in such institution, shall not be treated as a valid qualification for purposes of employment under the Central Government or "any State Government". This necessarily implies that qualification in teacher education obtained from an institution duly recognised under the provisions of the Act, would be treated as a valid qualification for purposes of appointment in Schools, and Colleges or other educational body aided by the Central Government or any other State Government. Regard being had to the purpose and object sought to be achieved by the Act as also the provisions thereunder as discussed above, we are persuaded to the view that the person having obtained the qualification in teacher education from a recognised institution would be qualified for being considered in any school, college or other educational body aided by the Central Government or 'any State Government'. The appellant in the instant case, has obtained diploma in education from Zila Shiksha and Prashikshan Sansthan (DIET), Jabalpur an institution recognised under the provisions of the Act as would be evident from the certificate filed as Annexure-4 to the said petition. The impugned circular and the advertisement in so far as it has the effect of excluding the candidates having teacher qualification obtained from an Institution recognised under the provisions of NCTE Act are void in view of Article 254 of the Constitution. The appellant, in our opinion, was equipped with the requisite qualification for being considered for appointment as Assistant Teacher in Junior Basic School.
5. Even otherwise, the appellant could be considered for appointment in view of the proviso to Section 11 of the U. P. Basic Education Act, 1972, as it stands substituted by the U. P. Basic Education (Amendment) (Second) Ordinance, 1999, inasmuch as he has had obtained before the commencement of the Ordinance the diploma in education which was recognised by the State Government as equivalent to B.T.C. The proviso reads as under :
"Provided the Board shall have power to make appointment of a person as a teacher of Basic School if he possesses a degree or diploma in education and has been selected for Basic Teacher Certificate Training before the commencement of the U. P. Basic Education (Amendment) Second Ordinance, 1997, or has obtained before such commencement training qualification , of Basic Teachers Certificate, Hindustani Teachers Certificate. Junior Teacher Certificate, Certificate of Teaching or any other training course recognised by the State Government. "
The impugned circular dated 11.8.1997, it cannot be gainsaid, is fraught with the effect of depriving the appellant of his right to be considered for appointment as Assistant Teacher in Junior Basic School run by the Basic Shiksha Parishad Uttar Pradesh. The view we are taking receives reinforcement from the decision of the Supreme Court in Suresh Pal v. State of Haryana. AIR 1987 SC 2027, wherein it has been held that since at the time when the petitioners therein had joined the course, it was recognised by State of Haryana and it was on the basis of the said recognition that the petitioners had joined the course, it would be unjust to tell the petitioner now that though at the time of their joining the course it was recognised, yet they cannot be given benefit of such recognition and the certificate obtained by them would be futile because during the pendency of the course it was de-recognised by the State Government on 9th January, 1985.
6. In so far as the impugned advertisement is concerned, the classification therein between candidates who have passed requisite teacher training course from a recognised institution of Gorakhpur and those who have passed such course from a recognised institution outside Gorakhpur is arbitrary and violative of Article 14 in that a territorial classification cannot be justified except on the basis of a reasonable nexus between the classification and the object sought to be achieved by such classification.
7. As a result of foregoing discussion, the appeal succeeds and is allowed and the judgment under appeal passed by the learned single Judge is set aside and the impugned Government circular and the advertisement in so far as they have the effect of excluding the candidature of candidates having obtained teachers education certificate from any Institution recognised under the NCTE Act are held to be void being ultra vires the Article 254 of the Constitution. The respondents are directed to consider the candidature of the appellant on merits.