Himachal Pradesh High Court
Prem Sagar And Others vs State Of H.P And Others on 17 September, 2020
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 5062 of 2019 & CWPOA
No. 5319 of 2019
Decided on: 17.09.2020
.
CWPOA No. 5062 of 2019
Prem Sagar and others
.......Petitioners
Versus
State of H.P and others.
......Respondents
CWPOA No. 5319 of 2019
Yashwant Singh
.......Petitioner
Versus
State of H.P and others.
......Respondents
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the petitioners: Mr. Avneesh Bhardwaj,
Advocate for the petitioners in
CWPOA No. 5062 of 2019.
Ms. Sunita Sharma, Sr.
Advocate with Mr. Dhananjay
Sharma, Advocate for the
petitioner in CWPOA No. 5319
of 2019.
For the respondents: Mr. Dinesh Thakur and Mr.
Sanjeev Sood, Addl. A.Gs with
Ms. Divya Sood, Dy. A.G for the
respondent-State.
1
Whether the reporters of Local Papers may be allowed to see the judgment?
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2
Mr. B.Nandan Vashisth,
Advocate for respondent No.3
in CWPOA No. 5062 of 2019.
(Through Video Conferencing)
.
Ajay Mohan Goel, J. (Oral)
As common questions of facts and law are involved in both these petitions, they are being disposed of by a common judgment.
2. The controversy involved in these petitions is in a very narrow compass. The petitioners were appointed as JBT Teachers.
The next promotional post from the post of JBT Teacher is TGT(Arts).
Vide Notification dated 22.10.2009, the Elementary Education Department, brought into force the Himachal Pradesh Elementary Education Department, Trained Graduate Teacher Clause-III (Non-
Gazetted) Recruitment and Promotion Rules 2009. In terms of Clause 11 thereof, the post in issue, inter-alia, was to be filled in 15% by way of promotion from amongst the in service JBTs possessing the educational qualification as prescribed in Column No. 7 thereof, who had at least five years regular service or regular combined with continuous ad-hoc service rendered, if any, in the grade. Clause 7 of the Recruitment and Promotion Rules, inter-alia, provided that minimum educational qualification for being appointed as a TGT Teacher was B.A.B.Ed/B.El.Ed with English as an elective subject.
Clause 7 of the Recruitment and Promotion Rules, as stood incorporated in the 2009, is being reproduced here-in-below:-
::: Downloaded on - 24/09/2020 20:17:30 :::HCHP 3Minimum educational and other ESSENTIAL ACADEMIC & PROFESSIONAL qualification required for direct QUALIFICATION:-
recruits:- TRAINED GRADUATE TEACHER (ARTS);-
B.A.B.Ed/B.El.Ed.
With English as an elective subject and any two of the following subjects in all the three years of Graduation:- I) Hindi .
ii) Economics
iii) Mathematics
iv) History
v) Political Science
vi) Geography
vii) Sociology
viii) Sanskrit
ix) Public Administration.
Or B.A.(Honours) in any of the above subjects with the condition that the candidate must have passed English as an elective subject and has taken any of the above subject as subsidiary subject in all the two years of Graduation and B.Ed.
TRAINED GRADUATE TEACHER (NON-MEDICAL):-
B.Sc.E.Ed./B.El.Ed.
The B.Sc./B.El.Ed.Degree should have been with the following subject r combinations-
I) Pass course with Physics, Chemistry & Math as combination subject.
Or
ii) Honours course in Physics with Chemistry and Math as Subsidiary subjects or
iii) Honours course in Chemistry with Physics and Math as subsidiary subjects or
iv) Honours course in Math with Physics and Chemistry as subsidiary subjects TRAINED GRADUATE TEACHER (MEDICAL):-
B.Sc.B.Ed./B.El.Ed.
The B.Sc./B.El.Ed. Degree should have been with the following subject combinations:-
I) Pass course with Chemistry, Botany & Zoology.
Or
ii) Honours in Botany with Chemistry & Zoology as subsidiary subjects.
Or
iii) Honours in Chemistry with Botany & Zoology as subsidiary subjects. Or
iv) Honours in Zoology with Chemistry & Botany as subsidiary subjects.
b) Desirable Qualification:
Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.
3. These Rules were amended vide Notification dated 31 st May, 2012 (Annexure A-2) appended with CWPOA No. 5062 of 2019.::: Downloaded on - 24/09/2020 20:17:30 :::HCHP 4
By way of amendment, which was now carried out, a condition stood imposed in Column No. 7 to the effect that the essential academic and professional qualification for being appointed as TGT (Arts), which .
obviously included promotion also, was graduation with 50% marks as well as passing of Teacher Eligibility Test to be conducted by the H.P. Subordinate Services Selection Board. The petitioners are aggrieved by this amendment which stood incorporated in the Recruitment and Promotion Rules.
4. The contention of the petitioners is that though they are graduates, but because they are not having 50% marks in graduation, therefore, the amendment which has been carried out renders them ineligible for promotion to the post of JBT, as even for the purpose of TGT, candidate has to have 50% marks in graduation.
5. The petitioners have relied upon the Notification issued by the National Council for Teacher Education (hereinafter referred to as 'NCTE'), dated 23rd August, 2010, appended with CWPOA No. 562 of 2019 as Annexure A-5, which has been issued by the Ministry of Human Resource Development, Government of India, laying down the minimum qualification to be eligible for appointment as a Teacher in Class I to VIII in schools referred to in Clause (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009, with effect from the date of issuance of the said Notification. Clause 4 of the Notification reads as under:-
"4. Teacher appointed before the date of this Notification:- The following categories of teachers appointed for classes 1 to VIII prior to date of this Notification need not to acquire the minimum qualifications specified in Para(1) above.::: Downloaded on - 24/09/2020 20:17:30 :::HCHP 5
(a) A teacher appointed on or after the 3 rd September, 2001 i.e. the date on which the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time) came into force, in accordance with that Regulation.
.
Provided that a teacher class I to V possessing B.Ed qualification, or a teacher possessing B.Ed (Special Education) or D.Ed (Special Education) qualification shall undergo an NCTE recognized 6 month special programme on elementary education.
(b) A teacher of class I to V with B.Ed qualification who has completed a 6 month Special Basic Teacher Course (Special BTC) approved by the NCTE;
(c) A teacher appointed before the 3 rd September, 2001, in accordance with the prevalent Recruitment Rules."
6. The stand of the petitioners is that the respondent-State is erring in not initiating the process for promotion in terms of provisions of Clause 4 of the Notification issued by the NCET, as they are not required to fulfill the eligibility criteria of possessing 50% marks in B.A or passing Teacher Eligibility Test and, thus, they are eligible for being promoted to the post of TGT. The contention of learned counsel for the petitioners is that to this extent, the Recruitment and Promotion Rules which now stand promulgated by the State, by way of amendment in the year 2012, are ultra-vires and liable to be quashed and set aside. Learned counsel for the petitioners have also relied upon Annexure A-2 appended with CWPOA No. 5319 of 2020, relevant portion whereof reads as under:-
"I am directed to refer to your letter no.EDN- H(2)B(2)7/2014-Promotion dated 6th January 2015 on subject cited above and to say that the NCTE regulation itself seem to provide that teachers appointed before 3.9.2001 has certain exemption even for promotion hence ::: Downloaded on - 24/09/2020 20:17:30 :::HCHP 6 it is appropriate that the same may be considered for inclusion in R&P Rules of TGT."
7. Another argument which has been put-forth by the .
learned counsel for the petitioners is that as the promotional posts were available before the amendment stood incorporated in the Recruitment and Promotion Rules by the State in the year 2012, therefore also, the petitioners had a right to be considered and promoted against those available vacancies in terms of the old Rules which were in force at the time when vacancies became available and their right could not have been marred by the amendment which has been so carried out in the year 2012.
8. The petitions stand opposed by the respondents. The stand of the State is that there is no infirmity in the Recruitment and Promotion Rules which have been framed by them or in the amendment which has been carried out by them in the Recruitment and Promotion Rules, because it is the prerogative of the employer to formulate the Recruitment and Promotion Rules and set the eligibility criteria, which a candidate has to fulfill in order to be appointed against a post.
9. Learned Additional Advocate General has argued that the Government has taken a conscious decision that the posts of TGT (Arts) should be manned by those candidates who have at least 50% marks in graduation level as well as have passed the Teacher Eligibility Test because this will ensure merit intra the Teachers who are so selected for imparting education to the students. On this basis, he has ::: Downloaded on - 24/09/2020 20:17:30 :::HCHP 7 argued that the amendment which has been carried out in the Recruitment and Promotion Rules, 2012 is not arbitrary and is reasonable as the same is in the interest of students because the .
Government has gone with merit. He has further argued that the reliance being placed on the Notification issued by the NCTE by the petitioners is totally mis-conceived because no protection is given to the incumbents like the petitioners vide said Notification.
10. Learned counsel appearing for the NCTE has also submitted that the Notification being relied upon by the petitioners is of no assistance to them because Clause 4 thereof only protected those Teachers who as on the date of issuance of the Notification stood engaged and were imparting education to the students from Class-I to VIII, but were not fulfilling the eligibility criteria laid down in the Notification.
11. I have heard learned counsel for the parties and have also gone through the pleadings as well as documents appended therewith.
12. In my considered view, there is no merit in the plea of the petitioners that the Recruitment and Promotion Rules which have been so promulgated by the State by virtue of amendment which has been carried out in the year 2012 are ultra-vires or, the State has erred in not appreciating that the petitioners were duly saved from possessing higher qualification for the purpose of promotion to the post of TGT(Arts) in terms of the Notification of the NCTE.
13. It is not in dispute that the petitioners stood appointed as JBT Teachers. Qualification of B.A is not required for being appointed as a JBT Teacher. However, graduation was a qualification envisaged ::: Downloaded on - 24/09/2020 20:17:30 :::HCHP 8 by the State for making recruitment to the post of TGT(Arts). In its wisdom, the Government in the Recruitment and Promotion Rules, kept 15% quota for JBT Teachers also for promotion to the post of TGT .
(Arts), provided that they fulfill the minimum eligibility criteria which was laid down in the Recruitment and Promotion Rules for appointment to the post of TGT(Arts). The Rules as were originally framed in the year 2009, were not having the minimum bench-mark of 50% marks or the necessity of the candidate having to pass the Teacher Eligibility Test examination, however, in the year 2012, when the amendment was carried out in the said Rules by the Government, these conditions were imposed. That is to say, now in order to be eligible for appointment against the post of TGT (Arts), it was necessary for the candidate in issue ought to have 50% marks in the graduation level and it was also necessary for the incumbent to have had passed the Teacher Eligibility Test. The petitioners, admittedly, were neither having 50% marks in graduation nor they had passed the Teacher Eligibility Test because it is the own case of the petitioners that they were not eligible to appear in the said examination on account of they are having less marks in the Graduation.
14. It is settled law that it is the prerogative of the employer to incorporate eligibility criteria for being appointed against the posts in issue and the Courts ordinarily are not to interfere in the said prerogative until and unless the eligibility criteria laid down by the employer is so arbitrary that it shocks the judicial conscious of the Court. Coming to the facts of this case, what the Government did in the year 2012 was that it imposed a condition of the benchmark of a ::: Downloaded on - 24/09/2020 20:17:30 :::HCHP 9 candidate at least securing 50% for being eligible and appointed against the post of TGT (Arts) as well as the candidate passing the TET test. It is not in dispute that the condition of a candidate must having .
passed TET test, was a condition imposed in terms of the statutory of the statutory provisions of the Right of Children to Free and Compulsory Education Act, 2009. Even the condition of imposing 50% minimum marks as the bench-mark for a candidate to be eligible for appointment against the post of TGT cannot be termed to be arbitrary because as has been argued by learned Additional Advocate General, if the endeavor of the State is to have more meritorious candidates manning the posts of Teachers to impart education TGT (Arts) candidates, then this Court cannot hold such a condition to be arbitrary.
15. Coming to the Notification of NCTE, this Court concurs with the submissions made by learned counsel for the NCTE that the provisions of the Notification do not come to the rescue of the petitioners. The Notification in issue lays down the minimum qualification for a person to be eligible for appointment as Teacher in Class-I to Class-VIII in the schools referred to in Clause (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009 w.e.f. the date of Notification. This means that as from the date of issuance of the said Notification no incumbent is eligible to be appointed as a Teacher in Class-I to Class-VIII in the schools referred to in Clause (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009, who do not possess the qualification as prescribed therein. However, to safeguard, the interest of those ::: Downloaded on - 24/09/2020 20:17:30 :::HCHP 10 incumbents who were serving in Schools as on the date when the Notification came in force and were imparting education to students studying in Class-I to VIII, but were not fulfilling the minimum .
qualifications contained in this Notification, protection was given by virtue of Clause-4 to the effect that the categories of Teachers appointed for Class-I to Class-VIII prior to the date of said Notification need not acquire the minimum qualification referred to in para one.
This Clause by no stretch of imagination can be said to protect the incumbents like the petitioners from possessing minimum eligibility criteria for being eligible for promotion to the post of TGT. All that this Notification protects is that assuming as on the date of coming into force of this Notification, if any of the petitioners who was serving as a JBT was not possessing qualifications prescribed in this Notification then, his services were saved and were not required to be terminated on account of want of qualification in terms of Notification dated 23 rd August, 2010. Therefore, there is no merit in the contention of the learned counsel for the petitioners that the amendment which has been carried out in 2009 in the Recruitment and Promotion Rules 2012 is ultra-vires being in violation of the Notification issued by NCTE dated 23rd August, 2010.
16. The communication issued by the Officers or the officials of the State Government being relied upon by the petitioners is also of no assistance to them as the same cannot supplant the Notification.
Same is apparently a result of misreading of Notification dated 23 rd August, 2010 and, therefore, is of no consequence.
::: Downloaded on - 24/09/2020 20:17:30 :::HCHP 1117. As far as the issue raised by the learned counsel for the petitioners that as there were certain posts which were lying vacant of TGT Arts before the the necessary amendment was incorporated in the .
Rules, therefore, the petitioners had a right to be appointed against those posts in terms of the Rules which were prevailing at the time when the posts fell vacant, all this Court wants to observe is that in terms of the law as it holds the field today, it is the Rule in vogue at the time when the candidature of a person is considered for the purpose of promotion which has to be taken into consideration by the DPC concerned and it is not the Rule which was in vogue at the time when the vacancy fell vacant. It is gainful to refer to the judgment of the Hon'ble Supreme Court in Rajasthan State Sports Council and another vs. Uma Dadhich and another (2019) 4 SCC 316, in which Hon'ble Supreme Court has been pleased to hold that no vested right to promotion accrues upon a candidate and only a right to be considered accrues as it exists on the date when the case for promotion is to be taken up.
18. In view of the above findings, as this Court does not finds any merit in these petitions and the same are accordingly dismissed, so also the pending application(s), if any.
( Ajay Mohan Goel ) Judge September 17, 2020 (naveen) ::: Downloaded on - 24/09/2020 20:17:30 :::HCHP