Uttarakhand High Court
Deepak Kumar And Another vs Harish Chand And Others. on 14 July, 2016
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 173 of 2016
With
Intervention Application No. 6764 of 2016
Intervention Application No. 6765 of 2016
Intervention Application No. 6524 of 2016
State of Uttarakhand & another. ............ Appellants
Versus
Harish Chand & others. ............. Respondents
Mr. A.K. Joshi, Additional Chief Standing Counsel for the State of Uttarakhand /
appellants.
Mr. D.K. Joshi, Advocate for respondent No. 1 / writ petitioner.
Mr. Rajesh Joshi, Advocate, holding brief of Mr. Aditya Kumar Arya, Advocate for
respondent No. 2 (NCTE).
Mr. Subhash Upadhyaya and Mr. S.K. Mandal, Advocates for the interveners in the
writ petition.
Mr. Vinay Kumar and Mr. Niranjan Bhatt, Advocates for the applicants in the present
Intervention Applications.
Special Appeal No. 165 of 2016
Deepak Kumar & another. ............ Appellants
Versus
Harish Chand & others. ............. Respondents
Mr. K.P. Upadhyaya, Advocate for the appellants.
Mr. D.K. Joshi, Advocate for respondent No. 1 / writ petitioner.
Mr. A.K. Joshi, Additional Chief Standing Counsel for the State of Uttarakhand /
respondent Nos. 2 & 3.
Mr. Rajesh Joshi, Advocate, holding brief of Mr. Aditya Kumar Arya, Advocate for
respondent No. 4 (NCTE).
Special Appeal No. 166 of 2016
With
Intervention Application No. 6763 of 2016
Smt. Kajal Negi & another. ............ Appellants
Versus
Harish Chand & others. ............. Respondents
Mr. Subhash Upadhyaya, Advocate for the appellants.
Mr. D.K. Joshi, Advocate for respondent No. 1 / writ petitioner.
Mr. A.K. Joshi, Additional Chief Standing Counsel for the State of Uttarakhand /
respondent Nos. 2 & 3.
Mr. Rajesh Joshi, Advocate, holding brief of Mr. Aditya Kumar Arya, Advocate for
respondent No. 4 (NCTE).
Mr. Shobhit Saharia, Advocate for the applicants in the Intervention Application.
&
2
Special Appeal No. 167 of 2016
Arun & others. ............ Appellants
Versus
Harish Chand & others. ............. Respondents
Mr. Manoj Tiwari, Senior Advocate, assisted by Mr. Alok Mahra, Advocate for the
appellants.
Mr. D.K. Joshi, Advocate for respondent No. 1 / writ petitioner.
Mr. A.K. Joshi, Additional Chief Standing Counsel for the State of Uttarakhand /
respondent Nos. 2 & 3.
Mr. Rajesh Joshi, Advocate, holding brief of Mr. Aditya Kumar Arya, Advocate for
respondent No. 4 (NCTE).
Mr. Subhash Upadhyaya and Mr. S.K. Mandal, Advocates for the interveners in the
writ petition.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
Dated: 14th July, 2016 K.M. JOSEPH, C.J. (Oral) The issues raised in these appeals being common, we are disposing of the same by this common judgment.
2. Respondent No. 1 / writ petitioner approached the court seeking the following reliefs:
"i) to declare the condition of obtaining two year Diploma in Elementary Education from the concerned Districts Institute of Education and Training of Uttarakhand only which excludes the two year Diploma in Elementary Education from the recognized institution of other States, in Government Elementary Education (Teachers) Service Rules 2012 as unreasonable, Arbitrary and contrary to notification dated 23.08.2010 issued by NCTE.
ii) to declare the act of respondents not inviting application vide advertisement dated 17.02.2016 from the candidates possessing two years elementary diploma course which is mandatory qualification for the post of Assistant Teacher (Class I to V), as Arbitrary, unreasonable and unconstitutional.
iii) Issue a writ, order or direction in the nature of mandamus directing the State of Uttarakhand Government to make necessary amendments in the Service Rule 2012 in accordance with the notification dated 23.08.2010 and 29.07.2011 issued by NCTE.3
iv) Issue a writ, order or direction in the nature of certiorari quashing the advertisement dated 17.02.2016 to the extent it debars the petitioner from participating in the ongoing selection process.
v) Issue a writ, order or direction in the nature of mandamus directing the respondents to accept the application form of the petitioner treating him as eligible candidate in pursuant to the advertisement dated 17.02.2016."
3. The controversy in this case, which arises for our consideration, revolves around the appointment to the posts of Assistant Teacher in Government Primary Schools in the State of Uttarakhand. The writ petitioner possesses two-year Diploma course in Elementary Teacher Education, which he obtained from the fourth respondent in the writ petition. The fourth respondent in the writ petition is located in New Delhi. Besides that, the writ petitioner has also obtained TET qualification.
4. On 17.02.2016, an Advertisement was issued by the Director, School Education, who is the second appellant in Special Appeal No. 173 of 2016, inviting applications for appointment to the posts of Assistant Teacher. The writ petitioner, considering himself to be qualified, made his application for the said post on 02.03.2016. It is, thereafter, that he filed the writ petition and it came before the learned Single Judge on 17.03.2016. After settling the pleadings, the matter was heard and the learned Single Judge allowed the writ petition. The learned Single Judge took note of the qualifications of the writ petitioner and disposed of the writ petition as follows:
"22. The writ petition therefore succeeds. The advertisement dated 17.02.2016 is hereby quashed. A mandamus is hereby issued to the State Government to publish a fresh advertisement seeking applications from eligible candidates as required under the Right to Education Act and as mandated by NCTE in its notification, which may include B.Ed. candidates as well. The objection of the respondents that the relaxation which was applicable only till 31.03.2016 would prohibit the State Government from doing that is not proper inasmuch as since the recruitment drive in the present case had been initiated prior to 31.03.2016 and in any case in these vacancies, this relaxation can be given but only as a last chance for 4 the B.Ed. candidates where they will be evaluated along with the candidates who have a Diploma in Elementary Education where candidates having a valid Diploma in Elementary Education have to be given a priority.
23. It is further made clear that in case any selections have been made so far on this basis, they shall automatically be set aside. It is further made clear that such candidates who had already applied in pursuance of the advertisement and were qualified on the date of the application shall be allowed to participate in spite of the fact that they have meanwhile crossed the age bar."
5. It is, accordingly, that Special Appeal No. 173 of 2016 has been filed by the first and the second respondent in the writ petition, who are the State of Uttarakhand and Director respectively. Persons, who had applied pursuant to the Advertisement dated 17.02.2016 and who were having B.Ed., feeling themselves aggrieved, have filed the other three Special Appeals after obtaining leave from the court. It is, accordingly, that all the appeals were heard together.
6. We have heard Mr. A.K. Joshi, learned Additional Chief Standing Counsel appearing for the State / appellants in Special Appeal No. 173 of 2016; Mr. Manoj Tiwari, Senior Counsel, Mr. K.P. Upadhyaya, Advocate, and Mr. Subhash Upadhyaya, Advocate, appearing on behalf of the appellants in the other appeals. We have also heard Mr. D.K. Joshi, learned counsel appearing on behalf of the writ petitioner and Mr. Rajesh Joshi, learned counsel appearing for National Council for Teachers' Education (hereinafter referred to as the "NCTE"); besides Mr. Shobhit Saharia, Mr. S.K. Mandal and Mr. Vinay Kumar, Advocates for the applicants in the Intervention Applications.
7. The contentions raised on behalf of the appellants may be, substantially, summarized as follows:
i. It is contended that the writ petitioner had applied for being considered under the Advertisement knowing fully that the Advertisement was issued to appoint Assistant Teachers from among the qualified B.Ed.5
Degree holders. In other words, knowing fully well that he would not be considered, the writ petitioner still applied. After having applied his eyes wide open, he cannot turn around and question the terms of the Advertisement. It is the further case that the writ petitioner was, actually, not qualified even under the Rules framed by the State of Uttarakhand for the reason that he has not obtained the Diploma from any of the institutes in the State of Uttarakhand (it is the case of the State in the counter affidavit that, in the 13 districts in the State, there are 13 institutes at the district level imparting training and awarding Diplomas to the successful candidates at the end of the training). Insofar as the writ petitioner has, admittedly, obtained the Diploma from outside the State, the qualification of the writ petitioner does not square with the statutory requirement in Rule 9 of the Rules made by the State.
ii. The further case is that selection to the post of Assistant Teacher from the category of B.Ed. Degree holders and from the persons with Basic Training Certificate (from hereinafter referred to as the "BTC") involves different criteria; whereas, in the case of BTC trained persons, the criteria involves the consideration of the marks obtained in BTC and the TET, the selection of the B.Ed. Degree holders is contemplated to be accomplished in terms of order dated 31.01.2014, which details an elaborate procedure to be followed. As per that order, B.Ed. Degree holders are arranged in the descending order depending upon the year of passing the B.Ed. In other words, those, who passed B.Ed. earlier, rank before those, who passed B.Ed. later. As between those, who passed B.Ed. in the same year, a separate criterion is also provided to determine who is to be selected. Therefore, mixing up of these two different categories of persons with different qualifications is impermissible. The persons, who were affected, were not parties. It is contended that the Rules were made in the year 2012 confining selection of the BTC trained teachers to those who had passed the BTC from the district institutes located in the 13 districts in the State of Uttarakhand; but conspicuous by its absence is the challenge to the Rules. Equally absent is any challenge to the Rules made in the year 2016. Elaborating, it is contended that, 6 following the incorporation of Article 21-A of the Constitution declaring fundamental right to education to children up to the age of 14, the Parliament enacted Right to Education Act in the year 2009. Under Section 23 thereof, NCTE was designated as the authority to declare the qualifications. Qualifications were fixed. Among the qualifications indicated was the B.Ed. In the State of Uttarakhand, there was a paucity of teachers possessing the basic training. Considering the scarcity of teachers and the availability of large number of vacancies, on being moved by the State, NCTE permitted teachers with B.Ed. to be appointed, originally till 31.03.2014. This was subject to the condition that the Rules were to be amended. By proceedings dated 20.07.2013, the Rules were amended and B.Ed. qualification was incorporated as the qualification rendering a person eligible to be appointed. Still further, on 12.08.2014, the right given to the B.Ed. Degree holders was extended till 31.03.2016. The Rules were also amended in 2016 by which B.Ed. Degree holders continued to enjoy the right to be appointed as Assistant Teachers, though limited in point of time till 31.03.2016. The Rules of 2016 were not challenged. The Government Order dated 31.01.2014, which is the foundation for the Advertisement (in fact, the Advertisement also refers to order dated 31.01.2014), is also not challenged by the writ petitioner. It is despite all this that the learned Single Judge has issued the directions, which we have already adverted to.
8. Per contra, Mr. D.K. Joshi, learned counsel appearing for the writ petitioner, would submit that, after NCTE was designated as the authority under Section 23 of the Right to Education Act, which is a Central Act, and the NCTE has declared the essential qualifications to be appointed in a Primary School to be BTC among other qualifications, only the BTC Degree holders are, actually, qualified to be appointed. The writ petitioner has, admittedly, obtained a two-year Diploma in Elementary Education from an institute, which is recognised by NCTE. The mere fact that the writ petitioner obtained the training, which is recognised by NCTE, from another State cannot stand in the way of his being considered. The Advertisement, in this case, was issued exclusively 7 confining consideration of the applications from the B.Ed. Degree holders. This is patently illegal and impermissible for the reason that one of the conditions, which has been incorporated by NCTE when it allowed the State to appoint B.Ed. Degree holders, was that it is only after appointing Diploma holders that the B.Ed. Degree holders would be considered and, yet, the Advertisement is issued exclusively for the benefit of the B.Ed. Degree holders. He would submit that it is not necessary to challenge the Rules, as he is not against the selection of B.Ed. Degree holders. All that he says is that let the law laid down by NCTE, which is a central agency recognised under the statute, be followed and the writ petitioner, who is qualified, also be considered and this is all that the learned Single Judge has also directed. He would further submit the following decisions for our consideration:
i. Central Bank of India vs. State of Kerala & others, reported in (2009) 4 SCC 94. Paragraph 31 of this judgment reads as follows:
"31. The three-Judge Bench also dealt with the scope of Article 254 and held (Hoechst case, SCC p. 88, para 67):
"Article 254 of the Constitution makes provision first, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is 'repugnant' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in clause (1), clause (2) engrafts an exception viz. that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act, will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in 8 their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together."
ii. Triveni Chandra Pandey vs. State of Uttarakhand & others, reported in 2014 (1) UD 16.
iii. Besides, this Court has taken the view that, merely because the qualification is obtained from outside the State, it will not render the holder of the qualification, otherwise eligible, ineligible to be considered under the Rules. To the extent the Rules provide otherwise, the writ petitioner had sought relief as is evident from the prayer sought. He would draw our attention to the judgment of this Court passed in Writ Petition (S/S) No. 537 of 2007 (Smt. Hansi Devi vs. District Primary Education Officer, Almora & others) and Writ Petition (S/S) No. 821 of 2005 (Smt. Asha Devi vs. District Primary Education Officer, Almora & others); besides the judgment passed in Writ Petition (S/S) No. 1808 of 2005 (Shiv Prasad vs. District Education Officer, Tehri Garhwal & others) by the very same learned Judge. Besides the same, he also drew our attention to a Bench decision of this Court in Special Appeal No. 328 of 2013 (State of Uttarakhand & others vs. Smt. Hansi Devi). He also brought to our notice the order passed by the Apex Court rejecting the Special Leave Petition from the last mentioned judgment.
9. Learned counsel for the writ petitioner also drew our attention to paragraphs 11, 14, 18, 19 and Grounds F & M of the writ petition, which read as follows:
9"11. That it is very much relevant to point out here that in para 2 (iii) of the notification dated 12.08.2014, it has been provided that it shall be obligatory on the part of the State Governments to give priority in the matter of selection to the candidates who possess the minimum eligibility as specified in the notification dated 23.08.2010, then only the candidates who possess qualifications provided in para 3(i) of the notification be considered for the selection of Assistant Teacher Primary School (Class I to V), in para 2(iv) of the notification dated 12.08.2014 it has also been provided that the advertisement for the selection said shall be widely circulated by the State Governments not only in the State but outside of the State also. This provision itself indicates that candidate who have obtained requisite qualification from the other state also shall also be considered for the selection of primary teacher.
14. That petitioner has applied in pursuant to the above advertisement inspite of no specification of the two year diploma course which petitioner possess, with the expectation that if this Hon'ble Court is pleased to interfere in the matter and directs the respondent to accept the application form of the petitioner. Petitioner has sent his application form with all the necessary documents is required to the respondents no.2 on 02.03.2006. In this connection a true copy of the application form is being filed herewith and marked as Annexure No.09 to this writ petition.
18. That on one hand after 86th amendment in Constitution of India followed by enactment of Right of Children to free and compulsory Education Act 2009, pursuant there to NCTE having been nominated as academic authority to lay down the minimum qualification for a person to be eligible for appointment as a teacher, in this regard minimum qualification having been prescribed by notification dated 23.08.2010, it is obligatory on the part of the State Government to frame rules in consonant with the notification dated 23.08.2010 and amended notification dated 29.07.2011 and on the other hand the Government of State of Uttarakhand has framed Rules in 2002, but the minimum eligibility conditions as have been prescribed by NCTE have not been incorporated in 2012 Rules in the letter and spirit of the notification issued by NCTE.
19. That in the 2012 Rules as well as in the amendments of 2013 provision in connection to a condition of two year diploma course in Elementary Education from the concerned districts within the State only is an arbitrary, unreasonable and contrary to the NCTE notification dated 23.08.2010.
Grounds F. Because the notification dated 12.08.2014, it has been provided that it shall be obligatory on the part of the State Governments to give priority in the matter of selection to the candidates who possess the minimum eligibility as specified in the 10 notification dated 23.08.2010, then only the candidates who possess qualifications provided in para3(i) of the notification be considered for the selection of Assistant Teacher Primary School (Class I toV), in para 2(iv) of the notification dated 12.08.2014 it has also been provided that the advertisement for the selection said shall be widely circulated by the State Governments not only in the State but outside of the State also. This provision itself indicates that candidate who have obtained requisite qualification from the other State shall also be considered for the selection of primary teacher.
M. Because in 2012 Rules as well as in the amendments of 2013 provision in connection to a condition of two year diploma course in Elementary Education from the concerned districts within the State only is an arbitrary, unreasonable and contrary to the NCTE notification dated 23.08.2010."
10. He would submit that there is no acceptable response to the allegations in the counter affidavit or in the additional counter affidavit.
11. In answer to the contentions of Mr. A.K. Joshi, learned Additional Chief Standing Counsel appearing for the appellants, that the writ petitioner has no locus standi to maintain the writ petition itself for the reason that, under the Rules, he is not qualified admittedly and as the Rules have not been declared illegal or unconstitutional nor is the declaration given, learned counsel for the writ petitioner would appeal to the court's powers under Order 41 Rule 33 of the Code of Civil Procedure and, in this regard, he buttresses his argument with reference to a decision in M/s Bihar Supply Syndicate vs. Asiatic Navigation & others, reported in AIR 1993 SC 2054, wherein the court, inter alia, held as follows:
"29. Really speaking the Rule is in three parts. The first part confers on the appellate court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees."11
12. He would submit that, to do complete justice between the parties, the appellate court may find that the Rule, which confined the training qualification to persons, who have obtained it from any of the 13 districts in Uttarakhand, is contrary to the stipulation by a national body NCTE. The conditions being contained in a piece of subordinate legislation, they will prevail over the Rules made by the State in view of Article 254 of the Constitution of India and, therefore, without any difficulty, the court can adjudicate on the said issue and sustain the judgment, which is, otherwise, clearly supportable. In support of his contentions, he also draws support from the other judgments of this Court, which have already found refusal to accord recognition to qualifications obtained from other States as illegal.
13. Mr. A.K. Joshi, learned Additional Chief Standing Counsel, in fact, in response, would submit that no reliance can be placed on Order 41 Rule 33 in the facts of this case. Mr. Subhash Upadhyaya, learned counsel for the appellants in Special Appeal No. 166 of 2016, would, in fact, submit that there is nothing in the Rules, which goes contrary to NCTE stipulation as the qualifications. In fact, Mr. K.P. Upadhyaya, learned counsel for the appellants in Special Appeal No. 165 of 2016, would point out the prayers in the writ petition and would point out that, in terms thereof, the writ petitioner is not entitled to any reliefs.
14. Mr. Subhash Upadhyaya would also submit that, even though the appellants in Special Appeal No. 166 of 2016 were not made parties by the writ petitioner in the writ petition, they were permitted to intervene before the learned Single Judge.
15. Before we proceed to consider the issues involved, the undisputed events that took place, which have led to this case, need to be dealt with. On 26.08.2009, Right to Education Act was enacted. On 23.08.2010, the Central Government notified various qualifications for the posts of 12 Assistant Teacher. The qualifications included, amongst others, qualifications for Classes 1 to V as follows:
"(a) Senior Secondary (or its equivalent) with at least 50% marks and two-year Diploma in Elementary Education (by whatever name known).
OR Senior Secondary (or its equivalent) with at least 45% marks and two-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure) Regulations, 2002.
OR Senior Secondary (or its equivalent) with at least 50% marks and four-year Bachelor of Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and two-year Diploma in Education (Special Education).
AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose."
16. In Clause 3(a) of the Notification, it provided for B.Ed. Degree holders also, who were Graduates, to be considered. It reads as follows:
"3. Training to be undergone: A person -
(a) with B.A./B.Sc. with at least 50% marks and B.Ed.
qualification shall also be eligible for appointment for class 1 to V upto 1st January, 2012, provided he undergoes, after appointment, an NCTE recognized 6 month special programme in Elementary Education."
17. Thereafter, on 29.07.2011, NCTE issued a Notification. Therein, under the head 'Minimum Qualifications', among various qualifications, it is mentioned that a person should possess two-year Diploma in Elementary Education by whatever name known or two-year Diploma in Elementary Education by whatever name known in accordance with NCTE (Recognition of Norms and Procedure) Regulations, 2002 and passed in Teacher Eligibility Test (TET) to be conducted by the 13 appropriate Government. On 28.08.2012, Rules were made by the Uttarakhand Government. The qualification prescribed therein was D.El. Ed. / BTC. The Rules were amended on 20.07.2013. By the amendment, B.Ed. was also included. In the meantime, on 17.10.2012, the Central Government issued a Notification by which the cut-off date was extended till 31.03.2014; meaning thereby, that, originally, B.Ed. Degree holders were entitled to apply only till 01.01.2012 and their eligibility to apply for the post of Assistant Teacher stood extended till 31.03.2014. Apparently, to facilitate the appointment of B.Ed. Degree holders, the Government issued order dated 31.01.2014. It contemplated selection at the State level. It also contemplated selection on the basis of giving priority to the year in which the Degree was obtained, among other things. On 12.08.2014, as already noticed, the B.Ed. Degree holders were rendered eligible to be appointed till 31.03.2016. The Rules were also amended in this regard in January, 2016 reflecting their continued eligibility. It is after the Rules were so amended that, in February, 2016, the Advertisement was issued inviting applications from B.Ed. Degree holders with the last date as 05.03.2016.
18. At this juncture, it is also apposite that we advert to certain provisions in the Rules. 'Appointing Authority' is defined in the Rules as follows:
"3. In these rules unless there is anything repugnant in the subject or the context:
(a) 'Appointing Authority' means Deputy Education Officer (Elementary Education) in case of Assistant Teacher, Government Primary School / Attached Primary School and District Education Officer (Elementary Education) in case of Head Teacher, Government Primary School, Assistant Teacher, Government Upper Primary School / Government Model School and Head Teacher of Government, Upper Primary School / Government Model School."
19. Rules 14, 15 and 16 read as follows:
"14. Determination of vacancies:14
In respect of appointment by direct recruitment to the post the appointing authority shall determine the number of vacancies and also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribe, Other Backward Classes and other categories to the State of Uttarakhand of under rule 10 and shall intimate to the selection committee.
15. Preparation of list of eligible candidates:
(1) After advertising the vacancies in news papers, the appointing authority shall invite applications from the candidates possessing prescribed training qualification from the district concerned and shall scrutinize the applications received against advertisement and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment:
Provided that for the candidate for appointment to the post referred in clause (a) of rule 6 for teaching Urdu, Bachelor's degree with Urdu as one of the subject or a Master's degree with Urdu is essential:
Provided further that to test special ability to teach in specific language such as Urdu, the selection committee shall arrange a written examination which shall be of 100 marks. In written examination the candidate will be required to write an essay on a current topic in the language in respect of which the post is to be filled. Minimum pass marks in written examination will be 50 percent and the candidate who will get the minimum pass marks will be eligible for appointment. A candidate who obtains less than fifty percent marks in the written examination shall be disqualified for appointment. (2) For such female candidate whose home district is changed because of marriage after selection in the training, Regional Additional Education Director (Basic) of the concerned region on her application can order to add the name of such female candidate in her new home district which may be different district of her training.
(3) The name of candidates in the list prepared under sub-rule (1) shall be arranged in the descending order of qualifying marks obtained in Teacher Eligible Test (T.E.T.) (4) No candidate shall be eligible for appointment unless his name is not included in the list prepared under sub-rule (1) and (3).
(5) This list prepared under sub-rule (1) and (3) shall be forwarded by the appointing authority to the Selection Committee.
16. Constitution of Selection Committee For the selection of candidates by direct recruitment to any post under these rules, a selection committee comprising following members shall be constituted:-
15(a) Principal District Institute of Education and Training/District Resource Centre - Chairman;
(b) District Education Officer
(Elementary Education) - Member;
(c) A Class-II officer nominated by Chief
Education Officer - Member;
(d) Deputy Education Officer
(Elementary Education) concerned block -Member Secretary;
(e) An officer from any department of the District nominated by District Magistrate - Member:
Provided that if no Member belonging to Scheduled Castes/Scheduled Tribes, Other Backward Classes or the Minority Community to the State of Uttarakhand then the nominated Officer by the District Magistrate shall be from this category."
20. A bare perusal of the Rules will show that, actually, the Rules contemplate the appointment being done on the basis of selection conducted by the Selecting Authority under the Rules. In Rule 15, it is clearly stated that the applications are to be invited from candidates possessing prescribed training qualification from the district concerned.
There is no challenge to the said Rule as such.
21. The writ petitioner, apparently, understood that he was not having the qualification under the Rules made by the State; but, still, he applied for the post pursuant to the Advertisement knowing fully well. It is after filing the application, as already noted, that he has approached the court. It is true that the learned Single Judge passed the following interim order on 19.03.2016:
"The petitioner is a graduate having two years elementary diploma and has also qualified a test known as "Teachers Eligibility Test" (in short "T.E.T."), which is a mandatory qualification for being appointed as an Elementary School Teacher in Uttarakhand.
The vacancies for Assistant Teachers (Elementary School) have been advertised by the State Government for different districts. Instead of calling the candidates who have two years diploma in Elementary Education, they are inviting applications only from Bachelor in Education (B.Ed.) for Assistant Teachers, which is admittedly not a training or not a qualification in elementary school teaching. In fact, after the implementation of Right to Education Act, the Government of India had formed a 16 nodal agency known as "National Council for Teacher Education"
(from hereinafter referred to as "N.C.T.E") vide notification dated 23.08.2010 had framed guidelines including the qualifications for appointment of teachers in Elementary Schools, whereby the qualification for Assistant Teachers is Senior Secondary or its equivalent with 50% marks and two years diploma in Elementary Education. However, a subsequent order passed by N.C.T.E. for a period up to 31.03.2016 even B.Ed. qualified persons have been made eligible. It, however, states that the first preference has to be given to such candidates, who are having a Diploma in Elementary Education.
This has evidently been done on consideration of shortage of qualified and trained candidates in elementary education. But here again this relaxation is only upto 31.03.2016 and again between a B.Ed. or a diploma holder in elementary education, preference has to be given to a diploma holder in elementary education.
In the present advertisement, which is under challenge before this Court, applications have not even been invited from persons having Diploma in Elementary Education, which is known by different names in different States but in State of Uttarakhand it is known as B.T.C. Therefore, there is apparently an error in the advertisement.
As an interim, measure, this court directs the petitioner to participate in the said selection process, as we have been told that he has already applied for the said post. However, his candidature shall be duly considered provisionally, which shall be subject to the final determination of the present writ petition.
It is further made clear that the respondents shall publish a fresh advertisement inviting applications also from all such candidates who have diploma in Elementary Education as that is the mandate of law and in view of the notification dated 23.08.2010 of N.C.T.E., which is binding upon the State Government.
It is further made clear that in the fresh advertisement, at least three weeks time be given to the applicants to apply, for which the last date of submitting the application shall be extended.
Respondents shall file counter affidavits within a period of three weeks.
List this matter on 25.04.2016 in the daily cause list."
22. It is not in dispute that the said interim order was not complied with by the State. The learned Single Judge, it is to be noted, has proceeded as if the writ petitioner is qualified. See in this regard paragraphs 4 & 11 of the judgment passed by the learned Single Judge, which read as follows:
17"4. Sufficient for us at this juncture would be the fact that two of the essential qualifications for appointment of Assistant Teacher in Primary School are that a candidate must have a two years diploma in training in Elementary Education, by whatever name it is called in that State. For example, it is called in Uttarakhand as Basic Training Certificate or BTC, which is a two years certificate. In other places such as Delhi, it is called as Diploma in Elementary Teachers Education. It may have a different nomenclature in other States. What is important, however, is that the essential qualification is that a person must be trained in imparting education at elementary level.
11. The petitioner is a permanent resident of Uttarakhand and has all the qualifications including Diploma in Elementary Education which he has done in the year 2002 from Delhi. The certificate to this effect has also been annexed as Annexure No.4 to the writ petition."
23. But, at once, we should also notice paragraph 16 of the judgment, which reads as follows:
"16. Learned counsel for the interveners Mr. S.C. Upadhyaya and Mr. S.K. Mandal have argued that B.Ed. has been included as the qualification in the Rules, 2012 known as "Uttarakhand Government Elementary Education (Teachers) Service Rules, 2012 (from hereinafter referred to as "Rules of 2012") which have subsequently been amended in the year 2016. These Rules petitioner has not challenged before this Court. Moreover, they further say that this is an exclusive drive only for the B.Ed. qualified candidates as this is the last chance for them to compete, as this relaxation will exhaust on 31.03.2016. Further he has taken this Court to the Government Order dated 31.01.2014 which is mentioned in the advertisement which says that there is a different procedure and method for evaluation of B.Ed. qualified candidates and a different method for evaluating the merit of a B.Ed. qualified candidate. Hence, the two cannot be mixed."
24. The learned Single Judge has not declared that the 2012 Rules are arbitrary, unreasonable or contrary to the Notification brought out by NCTE. This is despite being alerted that the case of the writ petitioner is suspect for the reason that he does not possess the qualification as required under the Rules. The learned Single Judge, thereafter, proceeds to meet the argument of the parties therein that a joint selection to select B.Ed. Degree holders and BTC holders is not possible as there are different criteria, the effect of which he accepts, but he gets over the same 18 by taking the view that, in view of the stipulation of the NCTE, there need not be any comparison inter se of the merits of the candidates possessing BTC training qualification on the one hand and candidates having B.Ed. on the other hand. This is for the reason that the candidates having B.Ed. Degree can be provided for only after accommodating all the candidates with Diploma like the writ petitioner. Equally unattractive was the argument that the writ petitioner had not challenged the Rules, which render the B.Ed. Degree holders eligible. According to the learned Single Judge, the writ petitioner did not oppose the selection of the B.Ed. Degree holders; it was a temporary phenomenon as their eligibility was to cease from 31.03.2016; and, in such circumstances, all that the writ petitioner wanted was that he be considered along with B.Ed. Degree holders and, after giving preference to him as he had the essential qualification, appointment could be given in favour of the B.Ed. Degree holders. We find that the learned Single Judge has left unanswered the question relating to the cloud over the qualifications of the writ petitioner, which qualifications obviously do not match the requirements under the statutory Rules.
25. We have also noticed that, under the Rules, obviously, candidates possessing the essential qualification, which has been obtained from the institutes located in the 13 districts of Uttarakhand, were to be recruited at the district level, yet the learned Single Judge has issued the directions contained in paragraph 22 of the judgment directing the State Government to issue a fresh advertisement seeking applications from the eligible candidates as required under the Right to Education Act and as mandated by NCTE. We may straightaway observe that the said direction is contrary to the mandate of Rules 15 and 16, which we have extracted above. Apparently, what has happened is that, when B.Ed. Degree was recognised by NCTE in view of the paucity of teachers having the essential qualification, it had mandated a condition that the Rules be amended. The Rules were amended, but only providing for the inclusion of B.Ed. Degree holders among the qualified category. What was to be the method of recruitment of the B.Ed. Degree holders? The answer to 19 this question is to be found in Government Order dated 31.01.2014. In regard to the procedure, in other words, it is not located within the Rules, but it is to be found in the Government Order. Is that Government Order under the shadow of challenge in the writ petition by the writ petitioner though it is referred to in the Advertisement, which is partially called in question? The answer is clearly 'No'; the Government Order dated 31.01.2014 is not challenged. Therefore, this is a case, where the Advertisement was issued on the lines of Government Order dated 31.01.2014, which is not under challenge. Even in regard to the Advertisement, what the writ petitioner seeks in the second prayer is that he be also considered. No doubt, there is a partial challenge contained in relief No. iv.
26. At this juncture, we may also consider Prayer No. 3. The said prayer is to direct the Government of Uttarakhand to make necessary amendments in accordance with Notifications dated 23.08.2010 and 29.07.2011, which we have already adverted to. A direction to amend a rule, it is settled law, cannot be granted by a court of law. Apparently, Mr. D.K. Joshi seeks to draw support in this regard from the proposal to amend made in communication dated 03.07.2015. It may be true that there was a recommendation to amend the rules apparently following the judgment of this Court; but, we are firm in our view that the principle is inviolable that the court cannot direct exercise of legislative power, which is necessarily involved when a rule is directed to be amended.
27. The writ petitioner, in Prayer Nos. 4, has sought quashing of the Advertisement only to the extent it debars him from participating and he seeks the receipt of the application in Prayer No. 5. We notice that the learned Single Judge has, in fact, quashed the entire Advertisement. In this connection, we have to notice certain facts. The case of the State is that the impugned Advertisement inviting applications only from B.Ed. Degree holders was necessitated on account of large number of vacancies of Assistant Teachers occurring in the schools in the State of Uttarakhand, which it was impossible to fill-up by appointing candidates having the essential qualifications. It is, accordingly, that a letter dated 25.03.2014 20 was addressed to NCTE. We deem it appropriate to extract the same as under:
"S. Raju School Education Department
Principal Secretary 4, Subhash Road, Dehradun
Ph.: 0135-2712097
(Fax) :0135-2713532
E-mail :[email protected]
Govt. of Uttarakhand
Dated:25.03.2014
Dear Mrs. Jaya,
I want to draw your kind attention towards NCTE
notification dated 23rd August 2010 through which 2 years Diploma in Elementary Education has been made compulsory for the eligibility of a teacher in elementary schools. In para 3 (a)(b) of said notification, it was provisioned that a candidate possessing a graduate degree along with degree in Education (B.Ed.) and having passed TET, can also be appointed as a primary teacher upto 1st January 2012.
2. On special request made by the Government of Uttarakhand, the cut off date for the appointment of such candidates was relaxed upto 31 March 2014 by Notification NO.2512(E) dated 17th October 2012 (copy enclosed).
3. Government of Uttarakhand has already taken steps for commencing two year D.El.Ed. Training course, as per para 3(vii) of the Notification dated 17th October 2012. Since the said course, in the State, is likely to start in the month of July 2014 and the first batch of 650 trained candidates will be available in the year 2016. Apart from this, out of such 650 trained candidates only those candidates who qualify TET will be eligible to be posted in the schools, which will not serve the purpose of the State.
4. The above process shall take atleast two years time for the state to get eligible candidates. The State does not have trained candidates to fill up the vacant requirement as another 1000 posts shall fall vacant due to retirement or promotion by 2016.
5. Since, there is no other way of filling the vacancies by eligible candidates. It is kindly requested to permit us to recruit such candidates possessing B.Ed. degree along with TET certification upto 31st March 2016 under Section 23(2) of RTE Act 2009.
Yours Sincerely, Regards, (S. Raju) 21 Smt. R. Jaya Member Secretary NCTE, Hans Bhawan(Wing-II) Bahadur Shah Zafar Marg New Delhi-110002 Not In Original Copy to: Ms. Vrinda Sarop, Additional Secretary(EE-1)MHRD, Department of School Education and Literacy, Shastri Bhawan New Delhi-110115 for necessary direction and approval.
(S. Raju) Principal Secretary"
28. Pursuant to that, NCTE issued proceedings dated 12.08.2014, which read as follows:
"Ministry of Human Resource Development (Department of School Education and Literacy) Notification New Delhi, the 12th August, 2014 S.O. 2301(E).-Whereas the Central Government in excise of powers under sub-section (2) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009)(hereinafter in this notification referred to as the RTE Act) granted relaxation to the State Government of Uttarakhand for a period up to 31st March, 2014 vide notification number S.O.2512 (E), dated the 17th October, 2012 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated the 17th October, 2012, And whereas the State Government of Uttarakhand vide its letter dated the 25th March, 2014 submitted a proposal to the Central Government for extension of relaxation under Sub-section (2) of Section 23 of the RTE Act for a period of two years beyond 31st March, 2014;
And whereas the Central Government examined and considered the proposal of the State Government of Uttarakhand for extension of relaxation granted.
Now, therefore, in exercise of the powers conferred by sub- section (2) of Section 23 of the RTE Act, the Central Government hereby extends the relaxation to the State Government of Uttarakhand, in respect of the minimum qualifications notified by the National Council for Teacher Education (hereinafter in this notification referred to as the NCTE) under sub-section (1) of Section 23 of the RTE Act in so far as they relate to classes I to V, 22 and allows persons referred to in sub-clause (a) of clause (i) of paragraph 3 of the notification number F. No.61- 03/20/2010/NCTE/(N&S), dated the 23rd August, 2010, published in the Gazette of India, Extraordinary, Part III, Section 4 dated the 25th August, 2010, (hereinafter referred to as the said notification) as amended from time to time, eligible for appointment as teacher for classes I to V beyond the 31st March, 2014, subject to fulfillment of the conditions specified under the said sub-clause.
2. The relaxation granted under this notification shall be valid for a period upto 31st March, 2016, subject to fulfillment of the following conditions, namely:-
(i) the State Government of Uttarakhand shall conduct the Teacher Eligibility Test as specified in the said notification of the NCTE as amended from time to time, in accordance with the guidelines for conducting Teacher Eligibility Test, dated the 11th February, 2011 issued by the NCTE and those persons who pass the Teachers Eligibility Test be considered for appointment as a teacher in classes I to VIII;
(ii) the State Government and other school managements shall amend the recruitment rules relating to appointment of teachers so as to provide for the minimum qualifications required for appointment of teachers laid down under the said notification;
(iii) the State Government shall in the matter of appointment of teachers give priority to those eligible candidates who possess the minimum qualifications specified in the said notification as amended from time to time and thereafter consider other candidates eligible with the qualifications referred to in sub-clause (a) of clause(i) of paragraph 3 of the said notification;
(iv) advertisement for appointment of teachers shall be given wide publicity, including outside the State,
(v) the State Government and other school managements shall ensure that teachers employed or engaged by them who possess the minimum qualifications referred to in sub-clause
(a) of clause (i) of paragraph 3 of the said notification undergo after appointment, a National Council for Teacher Education (NCTE) recognized six month Special Programme in Elementary Education;
(vi) the State Government shall take steps to increase the institutional capacity for preparing persons with specified qualifications so as to ensure that only persons possessing qualifications laid down under the said notification are appointed as teachers for classes I to V after the 31st March, 2016.
3. The persons referred to in sub-clause (a) of clause (i) of paragraph 3 of the said notification, shall also be eligible for 23 appearing in the Teacher Eligibility Test conducted by the State Government in respect of teacher appointments to be made in the State up to 31st March, 2016, in accordance with sub-paragraph
(iii) of paragraph 5 of the guidelines for conducting Teacher Eligibility Test under the RTE Act issued by the NCTE vide its letter dated 11th February, 2011.
(F. No. 1-17/2010-EE 4) VRINDA SARUP, Addl. Secy."
29. The condition in the earlier Notification, by which B.Ed. Degree holders were allowed to be appointed, namely, that they would be considered only after giving appointment to the BTC holders, was repeated as a condition. The case of the State is that, after 12.08.2014, 37 Advertisements were issued all over the State of Uttarakhand in its 13 districts calling for applications from persons having the essential qualifications obtained from the institutes in the 13 districts of Uttarakhand (in this connection, it is to be noted that it is not in dispute that the writ petitioner has not obtained the qualification from any of these institutes). According to the learned Additional Chief Standing Counsel, out of 824 applicants, 663 were found qualified and they were appointed. It is the case of the State also that, actually, there are 20434 sanctioned posts of Assistant Teachers and total vacancies, which are sought to be filled-up as per the impugned Advertisement, are 1200. He submits that, even after filling-up these 1200 vacancies, there would be more than 500 vacancies available. Besides that, he would submit that there are teachers, who are retiring and there would also be promotions giving rise to more vacancies. Therefore, it was not as if the teachers with the basic training qualification were not given opportunity and yet B.Ed. Degree holders are being considered. The chance given to the B.Ed. Degree holders was to expire on 31.03.2016. We notice that, in fact, if the figures supplied across the Bar by the learned Additional Chief Standing Counsel, a copy of which was made available to Mr. D.K. Joshi, are correct, out of 824 applicants, only 663 were found qualified. In one district, i.e. in Uttarkashi, we find that as many as five Advertisements were issued. The writ petitioner, in fact, belongs to district Almora and, in district Almora, three Advertisements were issued. In other words, the case of the State is 24 that, as and when the candidates passed out from the DIET and they also obtained the TET qualification, since they rendered themselves eligible, they were being absorbed; but, over and above that, there were vacancies and it became necessary and which is why, after moving the NCTE and after getting the extension, the impugned Advertisement is issued.
30. We would think that, in the facts of this case, we cannot but pose the most important question as to whether the writ petitioner has locus and whether the appeals are to be allowed on the ground that the writ petition was, itself, not maintainable at the instance of the writ petitioner. We have noticed the fact that, despite there being a prayer seeking a declaration as contained in Prayer No. 1, the learned Single Judge has not given any declaration regarding the invalidity of the Rule, which barred the writ petitioner. In fact, the learned Single Judge has not discussed the aspect at all and, in fact, has proceeded treating the writ petitioner as qualified. A statutory rule, be it void, cannot be wished away and a proper challenge must be mounted against it and the challenge must succeed, as, otherwise, it would pose an insurmountable barrier to the grant of reliefs, which depend on the invalidation of the rule. In this case, we do not know whether the said relief was, actually, pressed as such. Though the learned counsel for the writ petitioner Mr. D.K. Joshi would submit that it was, indeed, pressed, the learned Single Judge has not dealt with it. Keeping the rule side by side the qualification, which the writ petitioner relies on, it is clear that the writ petitioner was not qualified. If the writ petitioner is not qualified, at his instance, we do not see how the learned Single Judge could have granted the relief by way of quashing the Advertisement (in fact, the writ petitioner also wanted a partial quashing of the Advertisement).
31. At this juncture, we must consider the case of Mr. D.K. Joshi, learned counsel for the writ petitioner, based on Order 41 Rule 33. Order 41 Rule 33 as such is not applicable to proceedings under Article 226 of the Constitution of India in view of the explanation to Section 141 of the Code of Civil Procedure; but, there can be no doubt that, in appropriate 25 cases, the principle of Order 41 Rule 33 can be invoked in the interest of justice. In a writ petition, the paramount consideration is the rendering of justice. Writ jurisdiction is discretionary in nature as much as it is extra- ordinary. In the facts of this case, what Mr. D.K. Joshi would emphatically press before us is that, to do complete justice, Order 41 Rule 33 may be invoked and, in view of the command of the central agency, namely, NCTE as contained in the Notification, which is issued on 23.08.2010, and still later on 29.07.2011, the qualification obtained by the writ petitioner from Delhi must be treated as sufficient and the writ petitioner must be declared as qualified. It is true that principle of Order 41 Rule 33 is one enacted to clothe the court to do complete justice. Essentially, it is done to avoid contradictory judgments, particularly in the face of appeal not being filed by any of the parties. Ordinarily, a party aggrieved by portion of a judgment must prefer an appeal against the portion which goes against him. In a case, where it is a question of supporting the judgment, may be, in an appropriate case, the principle of Order 41 Rule 33 could be invoked. But, in this case, what the writ petitioner seeks is the grant of a declaration regarding a statutory rule, which has not been given by the learned Single Judge on the basis that the judgment does not speak about it despite the argument raised by the counsel. The result is that the learned Single Judge has granted the relief of setting aside the entire selection of B.Ed. Degree holders whose time was to run out by 31.03.2016 and, when there were large number of vacancies in the State at the Primary School level and going by the Advertisement issued at the district level to fill-up the posts from qualified candidates and the results which we have noticed, it would, in our view, not be in the interest of justice to interfere at the instance of the writ petitioner. Equally, we would think that the request of the learned counsel for the writ petitioner to invoke Order 41 Rule 33, in the facts of this case, having regard to the nature of the contentions raised and issues involved, must be declined.
32. We have been told by the learned counsel for the appellants that, on 18.02.2016, a Notification was issued for filling-up vacancies by 26 appointing candidates having BTC from a district; the writ petitioner could very well have challenged the said Notification on the ground that it is violative of the directive of NCTE and doctrine of repugnancy, etc.; and, instead, writ petitioner challenges the Advertisement relating to the B.Ed. Degree holders. What we would think is that, while declining to exercise the powers under Order 41 Rule 33, we should leave open the right of the writ petitioner, if he is so advised, to seek relief in respect of the Advertisement issued for filling-up vacancies of Assistant Teachers from the category of BTC.
33. The upshot of the above discussion is that we would think that the judgment passed by the learned Single Judge should be set aside and the writ petition must stand rejected, however, leaving open the right of the writ petitioner to raise the contentions relating to the validity of the Rules, insofar as they disqualify him, in appropriate proceedings, if he is so advised. Accordingly, the judgment passed by the learned Single Judge is set aside. We leave open the contentions of the writ petitioner in this regard as above. The appeals are allowed as above and the writ petition will stand dismissed.
34. After pronouncing this judgment, we have sent back the writ petitions to be heard by the learned Single Judge. We make it clear that we have not pronounced anything regarding the contentions of the interveners and that is a matter to be decided in the writ petitions.
(V.K. Bist, J.) (K.M. Joseph, C. J.)
14.07.2016 14.07.2016
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