Allahabad High Court
Arya Pratibha Chaodhary D/O Rajveer ... vs State Of U.P. Through Secretary, ... on 18 May, 2007
Author: Arun Tandon
Bench: Arun Tandon
JUDGMENT Arun Tandon, J.
1. Heard counsel for the parties.
2. Saimaj Kalyan Parishad, Modi Nagar, Ghaziabad is a society duly registered under the Societies Registration Act. The said society has established four junior high schools in various places at district Ghaziabad in the name and style of Dayawati Modi Kanya Junior High School. All the aforesaid institutions are recognized under the provisions of the U.P. Basic Education Act, 1972 and are also covered within the provisions of U.P. Junior High School (Payment of Salary to Teachers & Other Employees) Act, 1978.
3. It is alleged that four vacancies on the post of Headmistress became available due to retirement of Smt. Pushpa Manchanda, Smt. Kamla Verma, Smt. Sashi Prabha Sarin and Smt. Beena Srivastava between 1998 to 2002 in the aforesaid four institutions. Accordingly, the Secretary/Manager of the society published advertisements in the newspapers dated 06.07.2003, dated 07.07.2003 and dated 10.07.2003 whereby applications were invited for appointment against the aforesaid vacancies. The petitioners applied in pursuance thereof. They were invited to participate in the process of selection. Interview for the purpose took place on 03.08.2003. The Selection Committee comprised of Assistant Basic Shiksha Adhikari, Ghaziabad as one of the nominee of the Basic Shiksha Adhikari, Ghaziabad. The Selection Committee found the petitioners to be the most suitable and accordingly papers were forwarded to the Basic Shiksha Adhikari for grant of approval to the selections on 08.08.2003. The Basic Shiksha Adhikari under his order dated 11.08.2003 accorded approval to the appointment of the petitioners. The petitioners took charge of their respective posts with reference to the appointment letters dated 12.08.2003 and dated 29.08.2003. Petitioners claim to have discharged their duties to the satisfaction of the authorities concerned since then.
4. On a complaint being made by one Sri Satyapal Singh, the Basic Shiksha Adhikari, vide order dated 06.09.2003 directed withholding of the salary of the petitioners and ultimately vide order dated 08.10.2003 refused payment of salary to the petitioners. These two orders of the Basic Shiksha Adhikari are under challenge in the Writ Petition No. 47623 of 2003 a further prayer that a writ of mandamus be issued commanding the respondents to ensure payment of salary to the petitioner without any default regularly.
5. An impleadment application has been filed on behalf of one Sri Chandra Pal Singh, who claims to be a social worker and is interested in bring on record the complete fats qua appointment of Headmistresses in the institutions.
6. Arya Pratinidhi Sabha has filed its affidavit through Sri Pradeep Pandey and has supported the case of the petitioners.
7. A counter affidavit has been filed by the Chief Standing Counsel on behalf of the Assistant Basic Shiksha Adhikari, wherein it has been stated that in view of the directions issued by the Director of Education (Basic) U.P. Allahabad the payment of salary to the petitioners has been stooped, otherwise the petitioners are entitled to their salary in accordance with law.
8. On behalf of Sri Chandra Pal Singh it has been stated that vacancies against which the petitioners have been appointed are itself under dispute before this Hon'ble Court and that their appointments have been made in violation to the statutory rules.
9. Under order of the Court dated 30.11.2006 the first writ petition was directed to be listed along with records of Writ Petition No. 8632 of 2004 and Writ Petition No. 18724 of 2004.
10. Writ Petition No. 18724 of 2004 has been filed by Arya Pratibha Chaudhary, Smt. Renu Dhawan and Smt. Saroj Malhotra (petitioner Nos. 1, 2 and 3 respectively). By means of the said writ petition the petitioners have prayed for quashing of the order dated 20.03.2004 passed by the Regional Assistant Director of Education (Basic) and dated 23.04.2004 passed by the Basic Shiksha Adhikari as well as the order dated 02.05.2004 passed by the Secretary/Manager, Samaj Kalyan Parishad, Modi Nagar, District Ghaziabad.
11. Under the impugned orders the appointments made in the institutions were directed to be cancelled and the Basic Shiksha Adhikari was required to take appropriate action. Failing which he was to be held responsible. Reference has been made to the Government Order dated 20.01.2003, whereby appointment on the post of Assistant Teachers in recognized Junior High Schools was banned. The Basic Shiksha Adhikari accordingly issued orders withholding the salary of three petitioners of the said writ petition as well as of Smt. Satyawati Devi. In the said writ petition an interim stay order has been granted on 13.04.2005 whereby the petitioners had been permitted to function and to be paid their salary.
12. Smt. Omviri, along with six other teachers, filed Writ Petition No. 8632 of 2004 against the same order dated 08.10.2003, wherein also an interim order has been granted by this Court on 04.03.2004.
13. In Writ Petition No. 18724 of 2004 an impleadment application has been filed by Smt. Sunita Pal, seeking impleadment as respondent No. 7, which has been allowed by the Court.
14. Counsel for the parties agree that all the writ petitions be decided at this stage itself without calling for any further affidavits.
15. One of the basic issue, which has come up for consideration before this Court and which will decide the fate of these writ petitions without entering into other issues involved, is as to whether the petitioners are possessed of prescribed essential qualification, for appointment as Headmistress/Teacher in a recognized junior high school, or not.
16. It is admitted to the parties that the petitioners have a teachers training degree of B. Ed. in their favour. They are not possessed of any other teachers training certificate. It is further admitted to the parties that the provisions of U. P. Recognized Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978 are fully applicable qua appointment on the post of Headmistress and Teachers in the institutions in question. Rule 4(2) Sub-clause (c) of the said rules provides for the teaching qualifications, which are essential and must be possessed by the person concerned before he/she can be offered such appointment. Rule 4(2) reads as follows:
4(2). The minimum qualification for the appointment to the post of Head Master of a recognized school shall be as follows:
(a) A degree from a recognized University or an equivalent examination recognized as such;
(b) A teacher's training course recognized by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate, and
(c) Three years teaching experience in a recognized school.
17. It may also be noticed that under Rule 5 of the aforesaid Rules of 1978 specifically provided that no person shall be appointed as Headmaster or Assistant Teacher in substantive capacity in any recognized school unless he possesses the minimum qualifications prescribed for such post. Rule 5 is being quoted 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.
18. Counsel for the parties are at variance as to whether a degree of B. Ed. possessed by the petitioners/selected teachers can be treated as a Teachers Training Course recognized by the State Government or the Board at par with Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate, as per Rule 4(2)(b) of 1978 Rules.
19. The controversy with regard to the aforesaid issue has been considered in detail under a Division Bench judgment of this Court reported in 2005(1) AWC 824 Sanjay Kumar Tyagi v. State of U.P. and Ors. wherein in paragraph 13 practically the similar contention raised by Sri Ashok Khare Senior Advocate, as raised before this Court, have been repelled. Reference paragraphs 13,16, 17,18,19 and 20, which are being quoted below:
13. Sri Ashok Khare, learned senior counsel appearing for the appellant contended that the 1978 Rules and 1981 Rules are different even though both of them are applicable to the Junior High Schools and by comparing the two he submitted that though under the 1978 Rules appointment of Assistant Teachers and Headmaster can be made only by direct recruitment but under the 1981 Rules appointments to the posts of Assistant Teachers or Headmasters of a Senior Basic School can be made by way of promotion and only the post of Mistress of Nursery School and Assistant Master of Junior Basic School are filled in by direct recruitment He further submitted that the minimum educational qualification required for appointment as Mistress of Nursery School and Assistant Master of Junior Basic Schools under the 1981 Rules is a 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 recognised by the State Government as equivalent thereto and there being no prescription of any educational qualification separately for the post of Assistant Teacher and Headmaster of a Senior Basic School, it should not be insisted upon mat candidates directly recruited under the 1978 Rules should possess a Teacher's Training qualification required for direct recruitment at the Primary and Nursery Level under the 1981 Rules. He further contends that the language used in Rule 8 of the 1981 Rules and Rule 4 of 1978 Rules is entirely different and from this he contends that the Teacher's Training qualification under Rule 4 of 1978 Rules is not exhaustive but merely illustrative.
16. It cannot be disputed that the Teacher's Training imparted to teachers for B. Ed. Course equips them for teaching higher classes whereas the Basic Teaching Certificate (hereinafter referred to as 'B. T.C.') is given to teachers for teaching small children and the two cannot be compared with, as has been dearly observed by the Supreme Court in the case of Yogesh Kumar and Ors. v. Government of NCT Delhi and Ors. 2003 (3) A.W.C. 1823 (SC) : 2003 (2) S.C.C.D. 812 : (2002) 3 S.C.C. 548. The duration of courses of B.T.C. And L.T./B.Ed. Are entirely different and have been devised keeping in view the stages through which the students pass. In the case of B. T. C. The method of Training Course is devised so as to meet the requirement of teaching at a formative stage for a student who enters the School. Thus, it is evident that the training qualification for teaching small children is B.T.C. while the training qualification for teaching children in High Schools and Intermediate Colleges is B.Ed. or L.T.
17. We should, therefore, interpret Rule 4(1) of the 1978 Rules keeping in mind the observations made by us above and if we do so then there can be no manner of doubt that the Teacher's Training Course referred to in the said Rule should be confined to such Training Course which are imparted to teach small children only. This is the reason why the Legislature has specifically referred to four Training Courses which are specifically confined to specialised training for imparting education to small children and if we interpret it in such a manner then the question whether the four Certificates referred to in Rule 4(1) of the 1978 Rules are exhaustive or illustrative may not assume much significance since even if it is held that they are merely illustrative then too we are of the opinion that only such other certificates can be taken into consideration which relate to specialised Training for imparting education to small children. The B.Ed./LT./B.P.Ed./C.P. Ed. Or P.P. Ed. Certificates cannot therefore, be taken into consideration.
18. The Legislature was conscious of the distinction between Training Course Certificates received by candidates to teach small children and the certificates received to teach higher classes as is apparent from the fact that those who had obtained the B.Ed./LT./B.P.Ed./CP.Ed. or D.P.Ed. Certificates were required to complete a special B.T.C. Training Course under the Government order dated 9.1.1998. If such trained candidates having B.Ed./LT./B.P.Ed./CP.Ed. or D.P.Ed. Certificates were eligible to be considered for appointment as Assistant Teachers or Headmasters of a Junior High School, there would have been no necessity at all for them to have undergone the special B.T.C. Training Course. This again emphasises what we had observed earlier that to teach small children a Specialised Training Course is necessary. In this respect reference may also be made to the provisions of Rule 6 of 1981 Rules referred to above wherein also while providing for the age limit of the candidates it has been clearly provided that there shall be no upper age limit in case of B.Ed./LT./B.P.Ed./C.P.Ed. or D.P.Ed. Certificates candidates who had completed the Special B.T.C. Training course in the year 1999. The Legislature was, therefore, clearly conscious of the fact that for such candidates a special B.T.C. Course was required to be undertaken before they could be considered eligible for appointment.
19. The matter can also be examined from a different angle. Under Rule 4(1) of the 1978 Rules, the Rule making authority has not merely restricted the minimum qualification to a Teacher's Training Course recognised by the State Government or the Board. Had it done so there would have been no difficulty at all and all Teacher's Training Course recognised bv me State Government or the Board would have been treated to be sufficient However, the clause proceeds further and goes on to illustrate the meaning of "Teacher's Training Course' by mentioning Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate. This could not have been done without a purpose. It could only be to indicate the type of Teacher's Training Course, the Rule making authority had in mind and if we examine the four certificates referred to in Rule 4(1) we find that all of them relate to Certificates-granted in respect of imparting education to small children. We, therefore, have no hesitation in holding that the B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. Certificates cannot be considered as a Teacher's Training Course for the purposes of possessing the minimum qualification under the 1978 Rules. The view, which we have taken, finds support from the decision of the Supreme Court in the case of Royal Hatcheries Pvt Ltd. and Ors. v. State of A.P. and Ors. 1994 Supp. (1) S.C.C. 429.
20. We also do not agree with the contention of the learned senior counsel that because of the difference in the wordings of the 1978 Rules and the 1981 Rules, it must be held that a Teacher's Training Course can also include the Training Certificates like B.Ed./LT./B.P.Ed./CP.Ed. or D.P.Ed. Certificates so far as the 1978 Rules are concerned. We have carefully perused both the aforesaid Rules and find that in both of them for the appointment to the post of Assistant Teacher or Headmaster under the 1978 Rules or the appointment to the post of Assistant Master or Headmaster of Senior Basic Schools under the 1981 Rules there is hardly any difference with regard to the possession of the training qualification and under both of them the candidates must possess the Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificates which are recognised by the State Government or the Board.
20. I In view of the aforesaid Division Bench judgment of this Court, which has already interpretation the statutory Rule 4(2) of Rules of 1978 laying down the minimum qualification, no other view is possible to be taken by this Court in the matter.
21. Sri Ashok Khare Senior Advocate at this stage contends that certain important legislative changes have taken place with reference to the National Council for Teachers Education Act, 1993 and the regulations framed thereunder. He submits that these legislative changes could not be placed before the Division Bench of this Court in the case of Sanjay Kumar Tyagi (supra) which decide in Special Appeal No. 815 of 2000, inasmuch as legislative changes have been made in the year 2001 and 2003, while the dispute up for consideration before the Division Bench in the case of Sanjay Kumar Tyagi was qua appointment made in the year 1998. These legislative changes, therefore, have neither been considered nor were placed before the Division Bench, which has delivered the judgment in the case of Sanjay Kumar Tyagi. Because of the legislative changes brought upon under the National Council for Teachers Education Act, 1993, Sri Ashok Khare submits that the possession of a degree of B. Ed. has to be treated as equivalent to the other training qualifications prescribed under Rule 4(2)(b) of the 1978 Rules.
22. To elaborate, Sri Ashok Khare points out that under Notification dated 3rd September, 2001 National Council for Teachers Education, in exercise of powers under Section 12(1) of the National Council for Teachers Education Act, 1993, notified the National Council for Teachers Education (Determination of minimum qualifications for recruitment of teachers in schools) Regulation, 2001. The regulations have been made applicable for recruitment of teachers in all formal schools established, run or aided or recognized by Central or State Government and other authorities for imparting education at elementary (primary) and upper primary/middle schools, secondary and senior secondary stages.
23. It is worthwhile to reproduce Regulations 2, 3 4 along with the schedule to the said regulations and the note, which lay down the minimum qualifications relevant for our purposes.
2. Applicability These Regulations shall be applicable for recruitment of teachers in all formal schools established, run or aided or recognized by Central or State Government and other authorities for imparting education at elementary (primary) and upper primary/middle schools, secondary and senior secondary stages.
3. Qualifications for Recruitment
(i) The qualifications for recruitment of teachers in educational institutions mentioned in Section 2 above shall be as given in the First and Second Schedules to these Regulations. The qualifications prescribed in the First Schedule shall apply for recruitment of teachers for teaching school subjects. The qualifications prescribed in the Second Schedule shall apply for recruitment of teachers for Physical Education.
4. Amendment of Recruitment Rules The existing recruitment rules may be modified within a period of three years so as to bring them in conformity with the qualifications prescribed in the Schedules. Meanwhile, teachers appointed as per the existing recruitment qualifications, subsequent to the issue of these Regulations, will be required to acquire qualifications as prescribed in the Schedules.
First Schedule to the National Council for Teacher Education(Determination of Qualifications for Recruitment of Teachers) Regulations 2001.
Recruitment qualifications for recruitment of teachers in educational institutions mentioned in Section 2 of the Regulations.
______________________________________________________________________ LEVEL MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS ______________________________________________________________________ I Elementary i. Senior Secondary School certificate or a. Primary Intermediate or its equivalent; and ii. Diploma or certificate in basic teachers' training of a duration of not less than two years.
OR
Bachelor of Elementary Education (B.EI.Ed.)
b. Upper Primary i. Senior Secondary School certificate or
(Middle school Intermediate or its equivalent; and
section) ii. Diploma or certificate in elementary teachers
training of a duration of not less than two
years.
OR
Bachelor of Elementary Education (B.EI.Ed.)
OR
Graduate with Bachelor of Education (B.Ed.)
or its equivalent.
______________________________________________________________________ Note:
1. For appointment of teachers for primary classes, basic teachers' training programme of 2 years' duration is required. B.Ed. is not a substitute for basic teachers' training programme.
24. The aforesaid regulations have undergone a further amendment vide Notification dated 28th April, 2003. Rules 2 and 3 of the amended Regulations as well as the First Schedule attached thereto is being quoted below:
2. Extent of amendment
(i) The provision under Section 2 Applicability in the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 shall be substituted by the following:
These Regulations shall be applicable for recruitment of teachers in all formal schools established, run or aided or recognised by Central or State Government and other authorities for imparting education at preschool, nursery followed by first two years in formal school, elementary (primary and upper primary/middle school), secondary and senior secondary stages.
(ii) The first Schedule, other than the notes thereunder, to the NCTE (Determination of Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 shall be substituted by the Schedule annexed to these Regulations.
3. The amendments made through these Regulations shall not affect the previous operation of any regulations so repealed or any duly done under it.
First Schedule to the National Council for Teacher Education (Determination of Qualifications for Recruitment of Teachers in Schools)(Amendment) Regulations. 2003.
Recruitment qualifications for recruitment of teachers in educational institutions mentioned in Section 2 of these Regulations.
_____________________________________________________________________________ LEVEL (i) MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS _____________________________________________________________________________ I Pre(i) Secondary School (Class ten) certificate or its School/Nursery equivalent; and For children in the (ii) Diploma/Certificate in Pre-school teacher age group of 4-6 education programme of a duration of not less years) than one year.
II Pre(i) (i) Senior Secondary School (class twelve)
School/Nursery Certificate or Intermediate or its equivalent with
followed by first at least 45% marks; and
two years in a (ii) Diploma/Certificate in Nursery teacher
format school education programme of a duration of not less
(For children in the than two years.
age group of 4-6
and 6-8 years)
III Elementary i. Senior Secondary School certificate or
(a) Primary Intermediate or its equivalent; and
ii. Diploma or certificate in basic teachers
training of a duration of not less than two
years.
OR
Bachelor of Elementary Education (B.EI.Ed.)
(b) Upper Primary i. Senior Secondary School certificate or
(Middle school Intermediate or its equivalent; and
section) ii. Diploma pi certificate in elementary
teachers
training of a duration of not less than two
years.
OR
Bachelor of Elementary Education (B.EI.Ed.)
OR
Graduate with Bachelor of Education (B.Ed,)
or its equivalent.
_____________________________________________________________________________
25. From the aforesaid statutory rules, it is apparent that the National Council for Teacher Education has treated or has declared Degree of Bachelor of Education (B. Ed.) as a Training Certificate for the purposes of appointment of teacher in Upper Primary Schools i.e. Middle School sections, where education from classes 6 to 8 is imparted.
26. Regulation 4 of the Regulations of 2001 remain as it. Regulation has not been amended and continues as such, which provides that existing recruitment rules may be modified within a period of three years so as to bring them in conformity with the qualifications prescribed in the schedule. It is further provided that the teachers appointed as per the existing recruitment Rules, subsequent to issuance of the regulations, will have to acquire the qualifications as prescribed in the Schedule.
27. In view of the aforesaid Regulations of the National Council for Teacher Education, the State Government or for that purpose the concerned authority may be required to make amendments in the Recruitment Rules of 1978 Rules in view of Regulation 4 of the Regulations of 2001. Further teachers appointed subsequent to 3rd September, 2001, not possessed of the qualification prescribed under the mentioned National Council for Teacher Education Regulations of 2001 (as revised in the year 2003) may be required to obtain the qualification mentioned therein within a period of three years. However the Regulation 4 itself contemplates that necessary amendments in the existing recruitment rules may be made by the the competent authority, if required, within a period of three years. This period of three years would expire only on 2nd September, 2004. Since the State Government has not made any amendment in the existing Rules, 1978 till date and further since the period of three years from the date the Regulations of 2001 had been enforced had not expired on the date the petitioners were offered appointment, it cannot be said that the petitioners were possessed of the prescribed minimum qualification as per the existing Rules of 1978 as interpreted by the Division Bench of this Court in the case of Sanjay Kumar Tyagi (supra).
28. It may be clarified that amendment suggested under the National Council for Teacher Education Regulations of 2001 as amended in the year 2003 are not automatic and a time limit has been prescribed for the State Government/concerned authority to carry out the necessary amendments. The issue as to what would be the legal consequence if the State Government does not carry out the amendments as directed by the National Council for Teacher Education under its regulations, is not and cannot be a subject matter of consideration in these writ proceedings, inasmuch as the period of three years provided for under Regulation 4 had not expired on the date on which the petitioners had been appointed.
29. Consequently, in the opinion of the Court, even the amendments, which have been made by the National Council for Teacher Education in respect of the minimum qualification, do not in any way improve the case of the petitioners. They were not possessed of the prescribed minimum qualification as provided for under the rules applicable with reference to the date on which the qualifications possessed by the petitioners is required to be examined. The Hon'ble Supreme Court in the case of Mohd. Sartaj and Anr. v. State of U.P. and Ors. has held that qualifications possessed by a candidate for appointment are required to be examined with reference to the last date prescribed and not with reference to any subsequent date. It has been further clarified that any subsequent acquisition of the essential qualification will not vest legality to an appointment, which was illegal at the time of appointment for want of essential minimum qualification.
30. In view of the aforesaid, it is held that the petitioners are not possessed of the minimum prescribed qualification for appointment as Headmistress/Assistant Teacher on the date they were offered appointment as Headmistresses in recognized Junior High Schools. Consequently, the relief prayed for by the petitioner cannot be granted. All the Writ petitions are dismissed. Interim order, if any, stands discharged.