Allahabad High Court
Sweta Singh vs State Of U.P. And 4 Others on 5 December, 2018
Equivalent citations: AIRONLINE 2018 ALL 5302
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 4 Case :- WRIT - A No. - 25143 of 2018 Petitioner :- Sweta Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.,Mohd Shere Ali Hon'ble Ajit Kumar,J.
1. Heard learned counsels for the parties.
2. By means of this writ petition under Article 226 of the Constitution of India, the petitioner has questioned the correctness of the order passed by District Basic Education Officer, Maharajganj (hereinafter to be referred as 'DBEO') rejecting approval to the petitioner on the ground that subject in which the petitioner had graduated and discipline was not examined at the time of selection of the candidate.
3. The argument advanced on behalf of the petitioner is that there is no such rule and provision contained in the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter to be referred as 'Rules, 1978') provides that subjectwise selection of teachers in Junior High Schools.
4. Considering the arguments so advanced by learned counsel for the petitioner, this Court while entertaining the writ petition on 19.11.2018, passed order asking learned counsel for the respondent nos. 3 & 4 Sri Mohd. Shere Ali to have instruction in the matter.
5. Today when the case is called out, Sri Mohd. Shere Ali has appeared with the instructions which are indicative of the same stand, as taken in the order impugned.
6. In normal circumstances, this Court could have invited counter affidavit, but in view of the legal issue involved in the matter as to whether there is any such rule which calls for subjectwise selection of Assistant Teachers in Junior High Schools, this Court considers it appropriate to look into and examine the rules and direct the respondents to revisit the matter, if it is so required.
7. The Institution, where the petitioner has been selected, is admittedly a Junior High School and therefore, the selection for the purpose of recruitment to the vacant situations in such institution is clearly governed by the Rules, 1978. Sub-rule (1) of Rule 4 of the Rules, 1978, provides for minimum qualification for the post of Assistant Teachers in a recognized Junior High School, which is extracted herein below:
"4. Minimum qualification. - (1) The minimum qualifications for the post of Assistant Teacher of a recognised school shall be a Graduation Degree from a University recognised by U.G.C., and a teachers training course recognized by the State Government or U.G.C. or the Board as follows :-
1. Basic Teaching Certificate.
2. A regular B.Ed. degree from a duly recognized institution.
3. Certificate of Teaching.
4. Junior Teaching Certificate.
5. Hindustani Teaching Certificate."
8. Rule 5 then provides for eligibility for appointment on a substantive vacancy in a substantive capacity. Rule 5 is also extracted herein below:
"5. Eligibility for appointment. - No person shall be appointed as Headmaster or Assistant Teacher in substantive capacity in any recognised school, unless -
(a) he possesses the minimum qualifications prescribed for such post;
(b) he is recommended for such appointment by the Selection Committee."
9. Then Rule 6 provides for disqualification in terms of prohibited degree of relationship between the office bearers of management and the candidate. Rule 6 also extracted below for convenience:
"6. Disqualification. - (1) No person who is related to any member of the Management shall be appointed as Headmaster or Assistant Teacher of a recognised school. (2) For the purposes of this rule, a person shall be deemed to be related if he is related to such member in any one of the following ways, namely -
(i) Father or mother;
(ii) Grandfather, grandmother;
(iii) Father-in-law, mother-in-law;
(iv) Uncle, aunt, maternal uncle, maternal aunt;
(v) Son, daughter, son-in-law, daughter-in-law;
(vi) Brother, sister;
(vii) Grandson, grand-daughter;
(viii) Husband, wife;
(ix) Nephew, niece;
(x) Cousin;
(xi) Wife's brother, or wife's sister, wife's brother's wife, sister's husband;
(xii) Husband's brother, husband's brother's wife;
(xiii) Brother's or cousin's wife."
10. A joint reading of the two provisions, sub-rule (1) of Rule 4 and clause (a) of Rule 5 lead to the only conclusion that the academic qualifications that was prescribed for, under sub-rule (1) of Rule 4, are the minimum eligibility qualifications that a candidate must possess for making an application for appointment on the post of Assistant Teacher in a recognized Junior High School. From sub-Rule (1) of Rule 4 it is clear that a candidate, applying for the post of Assistant Teacher in a Junior High School, must possess in the first instance a graduation degree from a University recognized by University Grants Commission and then such a candidate should also possess degree/ certificate of Teachers Training Course as recognized by either the State Government or the University Grants Commission or the Board namely the U.P. Basic Education Board and such certificate should be either B.T.C. or a B.Ed. or a certificate of Teaching or Junior Teaching Certificate or Hindustani Teaching Certificate. So, one thing clearly transpires from the bare reading of the rules that graduation from recognized University is the minimum requirement in terms of academic qualification, what could be discipline of graduation degree is not mentioned under the Rules and so it could be, for example, either Science or Arts or Commerce. There seems to be a logic behind this also. The Junior High Schools and the primary schools are the basic schools dealing with elementary education. One who possesses degree of Intermediate then necessarily has basic/ elementary knowledge, both in science and humanities, as per the curriculum provided by U.P. Board of High School and Intermediate and such person is qualified enough to impart education at elementary level.
11. Disqualification part relates to the prohibited degree of relationship which one must not have while making an application as an applicant against an advertisement issued for the purposes of selection and recruitment. Disqualification has been provided to remove any element of bias, nepotismin matters of selection in public employment, where the public exchequer is involved for the purposes of payment of salary or the grant in aid.
12. While an Institution is recognized under State policy to impart education, it is virtually delegation of a constitutional function and so Article 14 and 16 of the Constitution come into play and call for transparency and fairness in selection.
13. Now coming to the case in hand, there is no such issue of disqualification involved, the petitioner is not alleged to be not possessed with graduation degree either. The petitioner does possess the requisite minimum qualification and, therefore, in view of the discussion made herein above in the judgment, the authorities are not justified in disapproving the selection only on the ground that the subject-wise selection was not held. Something which is sought to be put in by holding so under the impugned order is suddenly beyond the competence and the authority of DBEO to interpret what does not borne out from the plain reading of the provisions. What lies within domain of legislative competence to legislate and the Constitutional Courts to interpret a provision, is sought to be done by the DBEO. Authority is only required to act under the Rules and has to examine whether as per rule, a candidate is possessed of the prescribed qualification or not. The order impugned, therefore, passed by DBEO dated 07.09.2018 cannot be sustained and is hereby quashed.
14. The matter is remitted to the DBEO to revisit the issue of financial approval to the selection in question. The question of financial approval shall be considered by the DBEO in the light of observations made herein above in this judgment and strictly within the bounds of Rules, 1978. He is required to pass order afresh positively within a period of six weeks from the date of production of certified copy of this order.
15. Writ petition is allowed with the aforesaid observations and directions.
Order Date :- 5.12.2018 IrfanUddin