Allahabad High Court
Mohd. Naseem vs State Of U.P. Thru Prin. Secy. Basic ... on 16 December, 2013
Author: Shabihul Hasnain
Bench: Shabihul Hasnain
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. 6. Writ Petition No. 7102 (M/S) of 2013 Mohd. Naseem vs. State of U.P. & others. & Writ Petition No. 7975 (M/S) of 2013 Mohd. Misbahuddin & others vs. State of U.P. & others. & Writ Petition No. 7984 (M/S) of 2013 Syed Fazal Mehdi Zaidi vs. State of U.P. & others. & Writ Petition No. 7983 (M/S) of 2013 Syed Razi Hasan vs. State of U.P. & others. Hon'ble Shabihul Hasnain, J.
Heard Sri P.S. Vajpayee, Sri M.A. Faridi and Sri Surya Kumar learned counsel for the petitioner and the learned Standing Counsel for the State.
There are four connected writ petitions but having almost identical problems which are only different in nomenclature. The genesis of the problem is the same.
The parties agree that the matter can be heard and decided by a common order, accordingly these petitions are being heard and decided together.
The petitioners are the persons who have qualified 'Teachers' Eligibility Test' for 'Urdu Language' ( hereinafter called T.E.T.). This test is required for appointment to the post of Assistant Teacher in the basic schools. The conditions of appointment have been given in the U.P. Basic Shiksha Adhyapak Sewa Niyamawali, 1981.
The petitioners are aggrieved by the amendment carried out by the opposite parties in the application form so far as it relates to exclusion of 'Adeeb, Munsi, Fazil and Maulvi from equivalency of High School for appointment on the post of Assistant Teacher ( Urdu Language) after passing T.E.T., conducted by the State Government in 2013. It may be mentioned here that all the qualifications described above were taken to be equivalent to High School. Students having these qualifications were allowed to be admitted in the course of Adeeb-e-Mahir which is equivalent to Intermediate and Adeeb-e-Kamil which is equivalent to graduation.
Counsel for the petitioner has received counter affidavit in the court and he made a statement at Bar that he does not propose to file a rejoinder affidavit. The matter is urgent. Unpardonable delay has already been caused. He insisted that the matter may be heard today on the basis of the record available before the court.
The moot question involved in this petition is whether, after recognizing 'Adeeb-e-Mahir' and 'Adeeb-e-Kamil' degrees issued by the universities recognised by the UGC as well as the State Government can the State Government be allowed to say that the basic course of Adeeb, Munshi, Fazil and Maulvi were not equivalent to High School at this stage.
The petitioner says that State Government has recognized Adeeb equivalent to High School, Adeeb-e-Mahir to Intermediate, Adeeb-e-Kamil to Graduation vide Government Order dated 9.9.1993 and 13.9.1994 respectively and Mollim-e-Urdu equivalent to B.T.C. who have done it prior to 11.8.1997. He further asserts that certificates of Maulvi ( Arabic) and Munsi (Parsi) are already recognized equivalent to High School vide Government Order dated 29.3.1995 and same is the condition with Aalim which is recognized as equivalent to Intermediate by the same G.O. These certificates are issued by the U.P. Board of Madarsa Education, Lucknow which is a Board created by the State itself.
How can the State turn around and say that they are not equivalent to High School Board. Both the Boards belong to the State of U.P. Further Fazil has been held to be equivalent to High School in a recent judgment of this court vide Writ Petition No. 4081 of 2009 ( Sarfaraj Ahmad vs. State of U.P. and others) decided on 3.7.2012 at Allahabad vide a judgment of Hon'ble Justice Sudheer Agarwal.
A counter affidavit has been filed by the State in W.P. No. 7102 (M/S) of 2013. No reason has been given as to why Adeeb or other courses described above have been excluded from from the equivalence. In para 20 it has been said :
"20'. That in reply to the contents of para 21 and 22 of thee writ petition, it is submitted that in para 8 (Kha) of the Government Order dated 17.8.2013 following procedure has been given with regard to selection for the post of Assistant Teacher (Urdu) is as under :
" fnukad 11-08-1998 ds iwoZ ds ,sls eksvfYye&,&mwnZw mikf/k/kkjh] ftUgksaus tkfe;k mnwZ vyhx<+ }kjk lapkfyr vnhc&,&ekfgj rFkk vnhc&,&dkfey dh ijh{kk,a fnukad 11-8-1997 ds iwoZ mRrh.kZ dh gS] dks dze'k% b.VjfefM,V ¼mnwZ½ rFkk Lukrd mnwZ½ ds led{k ekurs gq, muds fy;s xq.koRrk vad dk fu/kkZj.k fd;k tk;sxkA '' It is further added that according to the Government Order dated 17.8.2013 the candidates, who are having certificate of Adeeb are not eligible for appointment on the post of Assistant Teacher ( Urdu).
This is hardly any explanation for excluding Adeeb or other courses from treating them not equivalent to the High School. The procedure as mentioned in the aforesaid paragraph does not entitle the opposite parties to de-recognize any degree which has been otherwise declared valid by other Government Orders.
Although not very relevant but in para no. 21 objection has been taken that in W.P. No. 7102 (M/S) of 2013 District Basic Education Officer, Lucknow has not been impleaded as a party although he was a necessary party. This is a small mistake. The petitioner has impleaded the District Basic Education Officer, Unnao. The court feels that a petition will not fail on this typographical error.
Let the District Basic Education Officer, Unnao be read as District Basic Education Officer, Lucknow by the order of this court.
As mentioned above similar controversy has been decided by this court at Allahabad.
His Lordship while dealing with this matter in Writ Petition No. 7102 (M/S) of 2013 on almost a similar issue has held in para no. 15,16 and 18 of the judgment as under :-
"15. Once the qualifications prescribed in the advertisement being eligibility qualifications are possessed by a candidate and no infirmity is found therein, the invalidity can not be attached to those very qualifications indirectly by disputing or raising a doubt on the initial qualifications possessed by such candidate. It may be that for obtaining higher education in a particular territory or area. The basic qualification of other place is not recognized or declared equivalent though it is so recognized elsewhere but once higher qualification obtained by a candidate in the institution and from the institution concerned cannot be said to be wrong or invalid for any reason whatsoever, no finger can be raised on the initial or earlier qualification of such a candidate particularly in absence of any such condition in the advertisement. The respondent-authorities cannot introduce something on their own or on the basis of their own understanding which has not been so provided by competent authority in the relevant Government Order on the basis whereof selection process has been initiated or in the advertisement based on such Government Order. The kind of discovery by Principal DIET and DIOS in this case, to my min, is patently illegal and without jurisdiction.
16. Further, there is another aspect. Though admission in Special B.T.C. Course 2007 is not governed by provisions of U.P. Basic Education Act, 1972 and the Rules framed thereunder but since in the present case, petitioner was also appointed as Assistant Teacher after passing Special B.T.C. Course 2007, it would be appropriate to refer to the qualifications prescribed for appointment as Assistant Teacher in a Primary School under the statutory rules namely Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 ( hereinafter referred to as "Rules 1981"). The qualification specified in Rule 8(1)(ii) of Rules 1981 reads as under :
(ii) Assistant Master and Assistant A Bachelor's degree Mistress of Junior Basic School 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, Vishist Basic Teacher's Certificate (B.T.C.) two years BTC Urdu Special Training Course, Hindustani Teacher's Certificate, Junior Teacher's Certificate of Teaching of any other training 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.
18. In absence of any specific condition in the Government Order dated 10.7.2007 with reference to High School or Intermediate qualification being the eligibility qualification for the purpose of admission in Special B.T.C. or under Rule 8(1) for the purpose of appointment as Assistant Teacher, no such innovation is permissible on the part of respondents on their own so as to add something which is not otherwise existing for the purpose of either admission in Special B.T.C. Course 2007 or appointment as Assistant Teacher. The respondent authorities have clearly misdirected themselves by looking to certain aspects of the matter which was not provided either in the Government Order or in the statutory Rules."
This court is in complete agreement with the analogy and the proposition laid down by his Lordship in the aforesaid matter. The court is of the considered view that once the rule requires graduation as the qualification for the post of Assistant Teacher earlier degrees obtained by a person can not be questioned by the State. Admittedly, the degrees of Adeeb-e- Mahir and Adeeb-e-Kamil have been awarded by the recognized institutions. The State has not asked degrees of Adeeb-e-Mahir and Adeeb-e-Kamil be derecognized on the ground that Adeeb etc. were not equivalent to High School. The exclusion of this equivalence appears to be absolutely arbitrary and whimsical.
A supplementary affidavit has been filed in W.P. No. 7102 (M/S) of 2013 in which result of the candidates who had appeared in the selection of Assistant Teachers ( Urdu) have been cancelled vide Annexure no. S.A. 2. The petitioner has shown that persons having degree of Maulvi, Adeeb and Munsi have been rejected arbitrarily. Although this result does not concern the petitioners but the result is illustrative of the approach of the opposite parties which raises a genuine and legitimate apprehension in the minds of the petitioners.
Writ petitions are allowed.
The opposite parties are directed to allow the petitioners to participate in the ongoing counselling for the appointment on the post of Assistant Teacher ( Urdu) being carried out by the State as per the advertisement mentioned in the year 2013 immediately. Courses of Adeeb, Fazil, Maulvi and Munsi as detailed aforesaid shall be taken as equivalent to High School.
The opposite parties had already taken a lot of time in filing the counter affidavit. The delay has resulted in form of lost chances for many other candidates who could not apply or appear in the counselling because the judgment could not be delivered without a counter affidavit. Any further delay in this matter will only enhance the belief of the court that the opposite parties are adamant to harass the petitioners as alleged in the writ petition.
It appears that many persons may have been deprived of their chance to appear in the counselling for appointment on the post of Assistant Teacher (Urdu Language) because of the approach adopted by the opposite parties. Lot of writ petitions are likely to be filed by the candidates after this judgment. It will be in the fitness of the things that this judgment be placed before the Chief Secretary of the State who may examine the matter in the light of this judgment and issue general direction to allow all such persons who are covered by this judgment to appear in the counselling in order to avoid multiplicity of litigation and in the interest of justice and fair play.
16.12.2013/Om.