Allahabad High Court
Ram Naresh Pathak vs District Basic Education Officer ... on 29 July, 2010
Bench: Ashok Bhushan, Virendra Singh
Reserved on 15/7/2010
Delivered on 29/07/2010
Special Appeal No.1035 of 2010.
Ram Naresh Pathak .....Appellant
Vs.
District Basic Education Officer, Lalitput & Ors.
.............Respondents.
.................
Hon'ble Mr. Justice Ashok Bhushan,J Hon'ble Mr. Justice Virendra Singh, J (Delivered by Hon'ble Mr. Justice Ashok Bhushan,J) This Special Appeal has been filed against the judgment and order dated 11/5/2002, passed by a learned Single Judge dismissing the Writ Petition No.8942 of 2002, filed by the petitioner. The petitioner by the writ petition has challenged the order dated 15/9/2001, rejecting his representation against the order dated 16/7/2001, by which the petitioner's promotion as Assistant Teacher, (Senior Basic School) was cancelled.
Brief facts giving rise to this appeal are:The appellant was appointed as Assistant Teacher in the Junior High School (Senior Basic School) by order dated 04/11/1988, and was posted at Primary Pathshala Malawni Kshetra Jakhaura, District, Lalitpur. The District Level Selection Committee considered the cases of all the Assistant Teachers of the Primary Pathshala for promotion to the post of Assistant Teacher Junior High School by its proceedings dated 07/6/2001. The petitioner along with several other teachers was promoted by order dated 28/6/2001, passed by the District Basic Education Officer, Lalitpur. Petitioner in pursuance of his promotion order, joined the post of Assistant Teacher Junior High School on 02/7/2001. By an order dated 16/7/2001, petitioner's promotion was cancelled by the District Basic Shiksha Adhikari, stating that the petitioner is only High School passed. Against the order dated 16/7/2001, petitioner filed writ petition No.28130 of 2001, which writ petition was disposed of on 02/8/2001, permitting the petitioner to 2 represent the matter before the District Basic Education Officer who was directed to decide the same within three weeks.
After the order of this Court dated 02/8/2001, Basic Shiksha Adhikari wrote a letter dated 15/9/2001, directing the petitioner to join at the Primary Pathshala, failing which action be taken against him. Reference of the order passed by this Court on 02/8/2001 in Writ Petition No.281301/2001, was also mentioned in the order dated 15/9/2001. The writ petition was filed by the petitioner challenging both the orders dated 15/9/2001 and 16/7/2001. This Court passed an interim order on 28/2/2002, staying the order dated 16/7/2001, and directed the petitioner shall be permitted to work on the post on which he was ordered to be promoted. The petitioner in pursuance of the interim order dated 28/2/2002, continued to function as Assistant Teacher Senior Basic School. The writ petition of the petitioner has been dismissed by judgment and order dated 11/5/2010. The learned Single Judge has taken the view that the qualifications prescribed for appointment on the post of Assistant Teacher Junior High School for direct recruitment as contemplated under rule 5(a) and for promotion as contemplated under Rule 5(b) of the Uttar Pradesh Basic Education Teachers Service Rules, 1981, hereinafter called the ("Rules, 1981") are not different and experience mentioned in Rule 8 (ii) (3) for promotion is in addition to the academic qualification which is required to be possessed by the Assistant Teacher of a Junior High School. It was held that since the petitioner was only High School passed he did not fulfil the academic qualification. The cancellation of promotion of the petitioner was upheld by the learned Single Judge.
Heard Shri D.S. Srivastava, learned counsel for the appellant and Shri P.K. Sharma, learned counsel appearing for the Uttar Pradesh Basic Education Officer and Shri D.N. Mishra, learned Standing Counsel.
Shri D.S. Srivastava, learned counsel appearing for the appellant submitted that the petitioner was fully eligible for promotion on the post of Assistant Teacher in Junior Basic School having appointed in the year 1988 and having completed more than 5 years of teaching experience as Assistant Teacher in Junior Basic School. It is contended that for promotion to the post of Assistant Teacher Senior Basic School, only an experience of 5 years teaching as Assistant Teacher Junior Basic School is required and Assistant Teacher having such experience is fully eligible for promotion as per Rules 5,8 and 18 of the 1981 Rules. It is further contended that qualification of intermediate as contemplated by Rule, 8 sub-rule-2 3 of 1981 Rules, was only for the Teachers appointed to teach Science, Maths, Craft or any language other than Hindi and Urdu and sub-rule 2 of Rule 8 was not applicable in the case of the petitioner. It is submitted that the cancellation of the promotion of the petitioner was not in accordance with the 1981 Rules and deserves to be set-aside.
Shri P.K. Sharma and Shri D.N. Mishra, learned Counsel appearing for the respondents have supported the order passed by the learned Single Judge. It is submitted that the qualification for appointment on the post of Assistant Teacher Senior Basic School being intermediate at the relevant time, petitioner could not have been promoted as Assistant Teacher Senior Basic School .
Shri D.N. Mishra, learned Standing Counsel submitted that the possession of essential qualification is a must and appointment of a person who does not possess the minimum qualification is void. In support of his submission he has placed reliance on the judgment of the Apex Court in J.T. 2006 (1) SC 331, Mohd. Sartaj & Anr Vs. State of U.P. & Ors; (2007) 4 SCC 54, Ashok Kumar Sonkar Vs. Union of India & Ors; (1996) 7 SCC 118, State of M.P. & Ors Vs. Shyama Pardhi & Ors and J.T. 2010 (1) SC 521, State of Karnataka & Ors. Vs. Gadilingappa & Ors.
We have considered the submissions of the learned counsel for the parties and have perused the record.
The only issue which has arisen in this appeal is as to whether the appellant fulfilled the qualification for promotion from the post of Assistant Teacher Junior Basic School to Assistant Teacher Senior Basic School as per Rules, 1981. The petitioner's qualification is High School from U.P. Secondary Education Board and B.T.C. The petitioner was appointed as Assistant Teacher Junior Basic School in the year 1988 on the basis of the aforesaid qualification. It is not the case of the respondents that the petitioner lacked qualification for his initial appointment. The petitioner being BTC, was fully eligible for promotion to the post of Assistant Teacher Senior Basic School in the year 1988. It is relevant to note the relevant rules prescribing for qualifications at the time when the petitioner was appointed.
Rule 8 of the 1981 Rules as it existed in the year 1988, is quoted below:
"8. Academic qualifications.- (1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown against each:4
Post Academic qualifications
(i) Mistress of Nursery School Certificate of Teaching (Nursery) from a recognised training institution in Uttar Pradesh or any other training qualification recognised by the Government as equivalent thereto.
(ii) Assistant Masters and Assistant High School Examination of the Mistress of Junior Basic Schools Board of High School and Intermediate Education, Uttar Pradesh or any other qualification recognised as equivalent thereto by the State Government together with the 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 Government as equivalent thereto.
(2)The essential qualification of candidates for appointment to a post of Assistant Master and Assistant Mistress of Senior Basic School for teaching science, mathematics, craft or any language other than Hindi shall be follows:
Academic qualifications
(i) Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh, or any other examination recognised as equivalent thereto by the State Government with science, mathematics craft or particular language, as the case may be, as one of the subjects in which he or she has been examined for the purpose of such examination; and
(ii) 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 Government as equivalent thereto.
(3) The minimum experience of candidates for promotion to a post referred to in clause (b) of Rule 5 shall be as shown against each:
Post Experience
(i) Headmistress Permanent Mistress of Nursery School with at
of Nursery least five years' teaching experience.
School
(ii) Headmaster Permanent Assistant Master or Permanent
5
or Headmistress Assistant Mistress of Junior Basic School
of Junior Basic with at least five years' teaching experience.
School
(iii) Assistantmaster of Permanent Headmaster of Junior Basic School.
Senior Basic Schools
(iv) Assistant mistress Permanent Headmistress of Junior Basic School.
of Senior Basic Schools
(v) Headmaster of Permanent Assistant Master of Senior Basic School
Senior Basic School with at least three years' teaching
experience as such.
(vi)Headmistress of Permanent Assistant Mistress of Senior
Senior Basic School Basic Schools with at least three years'
teaching experience as such.
Rule 8 sub-rule (1) as initially framed and enforced w.e.f. 03/1/1981, provided academic qualifications of Assistant Masters and Assistant Mistress of Junior Basic Schools as High School together with training qualification consisting of a Basic Teachers Certificate. The petitioner admittedly, was High School and possessed Basic Teachers Certificate, and thus was clearly eligible for appointment as Assistant Teacher. It is not even the case of the respondents that the petitioner lacked academic qualification at the time of his initial appointment in the year 1988. The petitioner, thus fulfils the qualification at the time of his initial appointment as Assistant Master of Junior Basic School.
The question which is to be considered is as to whether the petitioner on the above post was eligible for promotion to the post of Assistant Teacher, Senior Basic School in the year 2001, when he was promoted. The relevant rules of 1981 Rules needs to be noted for examining the said issue.
Rule 5 of the Rules, 1981 provides for Sources of Recruitment.
Under Rule 5 (a) the posts of Mistresses of Nursery Schools and Assistant Masters and Assistant Mistresses of Junior Basic Schools are to be filled up by direct recruitment.
According to Rule 5(b), posts of Headmistresses of Nursery Schools, Headmasters and Headmistresses of Junior Basic Schools, Assistant Masters of Senior Basic Schools, Assistant Mistresses of Senior Basic Schools, Headmasters of Senior Basic Schools and Headmistresses of Senior Basic Schools are to be 6 filled up by promotion under Rule 18. There is a proviso which provide that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv), appointment may be made by direct recruitment.
Rule 5 of 1981 Rules is quoted below:
"5. Sources of recruitment.-The mode of recruitment to the various categories of posts mentioned below shall be as follows:
(a) (i) Mistresses of Nursery ... By direct recruitment as provided in Schools in Rules 14 and 15;
(ii) Assistant Masters and ...... Ditto
Assistant Mistresses of
Junior Basic Schools
(b) (i) Head Mistresses of ...... By promotion as provided in Rule 18;
Nursery Schools
(ii) Head Masters and Head..... By promotion as provided in Rule 18;
Mistresses of Junior Basic Schools.
(iii) Assistant Masters ...... Ditto
of Senior Basic Schools
(iv) Assistant Mistresses of ......... Ditto
Senior Basic Schools
(v) Head Masters of ............ Ditto
Senior Basic Schools
(vi) Head Mistresses of ......... Ditto
Senior Basic Schools
Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above, appointment may be made by direct recruitment in the manner laid down in Rule 15."
Rule 8 provides for Academic qualifications.
Rule 8 sub-rule 1, deals with appointment to a post referred to in clause (a) of Rule 5 i.e. Mistress of Nursery Schools and Assistant Masters and Assistant Mistresses of Junior Basic Schools which posts are required to be filled up by direct recruitment.
Rule 8 sub-rule 2 provides for essential qualification of candidates for appointment to a post referred to in sub-clause (iii) and (iv) of clause (h) of Rule 5 for teaching Science, Mathematics, Craft or any other language other than Hindi and Urdu.
7Rule 8 sub-rule 3 provides for minimum experience of candidates for promotion to a post referred to in clause (b) of Rule 5.
Rule 8 sub-rule 4 provides for appointment to the post referred to in clause
(a) and sub-clause (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu Language.
Rule 8 as substituted with effect from 9th July, 1998 is quoted below:
"8. Academic qualifications.- (1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown below against each:
Post Academic qualifications
(i) Mistress of Nursery School Certificate of Teaching (Nursery) from a recognised training institution in Uttar Pradesh or any other training qualification recognised by the Government as equivalent thereto.
(iii) Assistant Masters and Assistant A Bachelor's Degree from a Mistress of Junior Basic Schools University established by law in India or a Degree recognised by the Government as equivalent thereto together with the 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 Government as equivalent thereto:
Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course.
(2) The essential qualification of candidates for appointment to a post referred to in sub-clause (iii) and (iv) of clause (h) of Rule 5 for teaching Science, Mathematics, Craft or any language other than Hindi shall be follows:
(i) A Bachelor's degree from a University established by law in India or a degree recognised by the Government as equivalent thereto with Science, Mathematics, Craft or particular language, as the case may be, as one of the subjects, and
(ii) Training qualification consisting of a Basic Teacher's Certificate, 8 Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognised by the Government as equivalent thereto.
(3) The minimum experience of candidates for promotion to a post referred to in clause (b) of Rule 5 shall be as shown below against each:
Post Experience
(i) Headmistress of At least five years' teaching experience as
Nursery School permanent Mistress of Nursery School.
(ii) Headmaster At least five years' teaching experience as
or Headmistress permanent Assistant Mistress or Assistant
of Junior Basic Master of Junior Basic School, Assistant
School and Master or Assistant Mistress of Junior Basic
Assistantmaster School and Assistant Master or Assistant Mistress
or Assistant mistress of Senior Basic School.
of Senior Basic School.
(iii) Headmaster or At least three years' experience as permanent
Headmistress for Senior Headmaster or Headmistress of Junior Basic
Basic School. School or Permanent Assistant Master or
Assistant Mistress of Senior Basic School,
as the case may be:
Provided that if sufficient number of
suitable or eligible candidates are not available for promotion to the posts mentioned at serial numbers (ii) or (iii) the field of eligibility may be extended by the Board by giving relaxation in the period of experience.
(4) The essential qualification of candidates for appointment to the post referred to in clause (a) and sub-clause (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu Language shall be as follows:
(i) A Bachelor's Degree from a University established by Law in India or a degree recognised by the Government as equivalent thereto with Urdu as one of the subjects."
Rule 18 of the Rules, 1981 provides for Procedure for recruitment by promotion.
Rule 18 is quoted below:
" Procedure for recruitment by promotion.-(1) Recruitment by promotion to the posts referred to in clause
(b) of Rule 5 shall be made on the basis of seniority subject to rejection of unfit through the Selection Committee constituted under Rule 16.
(2) The appointing authority shall prepare an eligibility list of candidates in order of seniority and place it before the Selection committee alongwith their character rolls and such other records pertaining to them as may be considered 9 proper.
(3) The Selection Committee shall consider the cases of the candidates on the basis of the records referred to in sub-rule (2) (4) The Selection Committee shall prepare a list of selected candidates in order of seniority as disclosed from the eligibility list referred to in sub-rule (2) and forward the same to the appointing authority."
The learned Single Judge in his judgment has taken the view that the qualification for direct recruitment as well as for promotion are same, if the qualification for the post mentioned in Rule 5(a) and 5(b) are read together, academic qualifications are not different either for direct recruitment or for promotion. The aforesaid observation of the learned Single Judge is not in consonance with the scheme as delineated by reading Rules 5(a), 5(b) and Rule 8 of the Rules, 1981.
Rule 8 sub-rule 1 provides for Direct Recruitment. Rule 8 sub-rule 2 provides for qualification of candidates for appointment to a post referred to in sub- clause (iii) and (iv) of clause (b) of Rule 5 for teaching Science, Mathematics, Craft or any language other than Hindi and Urdu.
Rule 8 sub-rule 2 provides for qualification for Teachers for teaching some subjects as mentioned therein which itself indicates that appointment of Assistant Teachers, Junior Basic School to teach several other subjects are also contemplated. There is qualification prescribed for Assistant Master Senior Basic School teaching for Science, Mathematics, Craft and Urdu.
Proviso to Rule 5 sub-rule(b) indicates that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv), appointment may be made by direct recruitment in the manner laid down in Rule 15. Thus, the appointment to the post of Assistant Master Junior Basic School and Assistant Master Senior Basic School is contemplated only when the aforesaid posts are not filled up by promotion.
Reading proviso to Rule 5(b) along with Rule 8 sub-rule 2 clearly indicates that the qualifications mentioned in Rule 8 sub-rule 2 are qualifications for appointment as contemplated in proviso to Rule 5 sub-rule (b). However, the word "appointment" is wide enough to include both direct recruitment and promotion as a 10 general rule.
The Apex Court in A.I.R 1971, SC 1602, Dr. Harkishan Singh Vs. the State of Punjab & Ors, had made following observation in paragraph 12.
Paragraph 12 is quoted below:
"12. The word "appointment" cannot mean only promotion. It means appointment both by promotion and by direct recruitment. That is why the word 'appointment' is used in that sense once in relation to selection grade and again in relation to the total number of appointments to the service."
Thus, even if we proceed with the assumption that the appointment mentioned in Rule 8 sub-rule (2) relates both to direct recruitment and promotion, the said qualification has been prescribed only to teach limited subjects i.e. Science, Mathematics, Craft or any language other than Hindi and Urdu.
The appellant has filed his appointment letter as Annexure-1 which indicates that the appellant was not appointed to teach Science, Mathematics, Craft or any language other than Hindi and Urdu. Rule 8 sub-rule (2),thus is not attracted in the case of the appellant. Rule 8 (2) being not available the only rule for promotion is Rule 8 sub-rule (3).
Rule 8 sub-rule (3) provides for minimum experience of candidates for promotion to a post referred to in clause (b) of Rule 5. The minimum experience for promotion to the post of Assistant Master Junior Basic School is five years' teaching experience as Permanent Assistant Master in Junior Basic School and the appellant clearly fulfils the aforesaid qualification of having five years' experience.
In view of the aforesaid discussion, we hold that the appellant was fully eligible for promotion as Assistant Master, Senior Basic School and the order dated 16/7/2001, cancelling the promotion of the petitioner on the ground that the petitioner is only High School pass and does not fulfil the educational qualification is erroneous.
The learned Standing Counsel has placed reliance on four judgments i.e. J.T. 2006 (1) SC 331, Mohd. Sartaj & Anr Vs. State of U.P. & Ors; (2007) 4 SCC 11 54, Ashok Kumar Sonkar Vs. Union of India & Ors; (1996) 7 SCC 118, State of M.P. & Ors Vs. Shyama Pardhi & Ors and J.T. 2010 (1) SC 521, State of Karnataka & Ors. Vs. Gadilingappa & Ors.
Mohd. Sartaj's case (supra) was a case where the cancellation of appointments was on the ground that the appointees did not possess the requisite qualification was upheld. There cannot be any dispute with the proposition that the qualification has to be seen at the time of recruitment.
In the aforesaid case, the candidates did not fulfil the qualification as prescribed under Rule 1981 which they acquired later on. In the above case, the Apex Court held that the qualifications should have been seen at the time of recruitment and not at a later stage. Following was stated in paragraph 21 is is quoted below:
"21.The contention of the learned counsel for the appellants is that State by various orders had given equivalence to the degree of Moallium-e-Urdu granted by Jamia Urdu, Aligarh with that of Basic Teacher's Certificate, is not correct. In Government Order dated 28.1.85 the Governor was pleased to approve the candidates in State services who qualified Moallium-e-Urdu granted by Jamia Urdu, Aligarh and who got experience of teaching Urdu at Higher Secondary Schools. This order did not provide for equivalence of Moallium-e-Urdu granted by Jamia Urdu, Aligarh, to that of B.T.C.. In another order dated 28.10.88 issued by the Government, which was clarificatory in nature, to all heads of departments and Chief of Officials of U.P. Karmik Anubhag, directed that the candidates who have got degree of Moallium-e-Urdu granted by Jamia Urdu, Aligarh and who had experience of teaching Urdu at Higher Secondary levels may be appointed in State services. This also does not indicate the equivalence of Moallium-e-Urdu granted by Jamia Urdu, Aligarh to that of B.T.C. The aforesaid two orders only indicate that the persons who are having degree of Moallium-e-Urdu granted by Jamia Urdu, Aligarh, can be appointed in the State services. The orders do not equate the degree of Moallium-e-Urdu granted by Jamia Urdu, Aligarh to that of Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course, indicated in the Rule. As far as the training is concerned there is no equivalence of the Certificate of Moallium-e- Urdu. It is for the first time by Order dated 13.9.94 the Government issued an order whereby the Governor granted a sanction that 12 Moallium-e-Urdu degree for teaching Urdu in Junior / Senior basic schools is equivalent to B.T.C.. It is settled law that the qualification should have been seen which the candidate possessed on the date of recruitment and not at a later stage unless rules to that regard permit it. The minimum qualification prescribed under Rule 8 should be fulfilled on the date of recruitment. Equivalence of degree of Moallium- e-Urdu, Jamia Urdu Aligarh with that of B.T.C. in the year 1994 would not entail the benefit to the appellants on the date they were appointed. The appellants could not have been appointed to the post of Asstt. Teachers without having training required under Rule 8. That being the case, the appointments of the appellants were de hors the Rules and could not be treated to be continued. For the aforesaid reasons, we do not find any substance in the appeals and are, accordingly, dismissed. However, in the circumstances of the case, there shall be no order as to costs. "
Other cases, which have been been relied by the learned Standing Counsel are the cases laying down the preposition that the possession of requisite minimum qualification at the time of appointment is a must. There cannot be any dispute to the above proposition. Possession of qualification for appointment to a post is a must, to which proposition there cannot be any dispute. The judgments cited by the learned Sanding Counsel are thus not on the issues which have been raised in this appeal and are clearly distinguishable.
In view of the foregoing discussion the Special Appeal is allowed. The order of the District Basic Shiksha Adhikjari dated 16/7/2001as well as the judgment of the learned Single Judge dated 11/5/2010 are set-aside.
Parties shall bear their own costs.
29/07/2010 SB 13