Karnataka High Court
Mohammedi Begum vs The State And Ors on 26 July, 2024
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WP No. 201011 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
WRIT PETITION NO. 201011 OF 2018 (S-RES)
BETWEEN:
MOHAMMEDI BEGUM W/O MOHD. HAJI
AGE: 36 YEARS, OCC: WORKING AS URDU PANDIT,
IN PRINCES FATIMA ESIN GIRLS HIGH SCHOOL,
RAICHUR,
R/O. RAICHUR.
...PETITIONER
(BY SRI BASAVARAJ KAREDDY, ADVOCATE)
AND:
Digitally signed by
KHAJAAMEEN L 1. THE STATE OF KARNATAKA
MALAGHAN
Location: HIGH BY ITS SECRETARY,
COURT OF PRIMARY AND SECONDARY EDUCATION,
KARNATAKA
M.S. BUILDING, BANGALORE-560001.
2. THE COMMISSIONER OF PUBLIC INSTRUCTION
KALABURAGI-585104.
3. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
RAICHUR-584101.
4. NEW EDUCATION SOCIETY
TIPPU SULTAN ROAD,
RAICHUR BY ITS SECRETARY-584101.
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WP No. 201011 of 2018
5. THE BLOCK EDUCATION OFFICER
RAICHUR-584101
...RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP ALONG WITH;
SRI MALHAR RAO, AAG FOR R1 TO R3 AND R5;
SRI S. B. PATIL, ADVOCATE FOR R4)
THIS WRIT IS PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO I) ISSUE A
WRIT OF CERTIORARI THEREBY QUASHING THE IMPUGNED
ORDER NO.ED/43/SEW/2014, DATED 22.12.2017 PASSED BY
THE 1ST RESPONDENT AS AT ANNEXURE-R TO THE WRIT
PETITION. I) (A) ISSUE WRIT IN THE NATURE OF CERTIORARI
QUASHING THE KARNATAKA EDUCATION DEPARTMENT
SERVICE (DEPARTMENT OF PUBLIC INSTRUCTIONS)
RECRUITMENT RULES-1967, AMENDED RULES-2016, VIDE
NOTIFICATION DATED 29-09-2016, IN FILE
NO.ED:291/LBP/2015, BENGALURU, VIDE ANNEXURE-T, TO
THE EXTENT OF PRESCRIBING A P.G. CANDIDATE BECOMING
ELIGIBLE IF HE/SHE WERE TO HAVE A DEGREE B.ED. IN
EDUCATION IN CONCERNED SUBJECT AS TEACHING METHOD.
(II) ISSUE A WRIT OF MANDAMUS, THEREBY DIRECTING THE
RESPONDENTS TO APPROVE THE PETITIONER'S APPOINTMENT
TO THE POST OF ASSISTANT TEACHER IN URDU I.E, URDU
PANDIT IN THE 4TH RESPONDENT'S HIGH SCHOOL IN THE
LIGHT OF THE LAW LAID DOWN BY THE HON'BLE APEX COURT
VIDE ANNEXURE-S AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
05.07.2024, AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 201011 of 2018
CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL ORDER
(PER: HON'BLE MR. JUSTICE UMESH M ADIGA) This petition is filed under Articles 226 and 227 of the Constitution of India seeking for the following reliefs:-
"i) Issue a writ of certiorari thereby quashing the impugned order No. Ed / 43 / SEW / 2014 dated 22.12.2017 passed by the 1st respondent as at Annexure-R to the writ petition.
i (a) Issue writ in the nature of certiorari quashing the Karnataka Education Department Service (Department of Public Instructions) Recruitment Rules-1967, Amended Rules-2016, vide notification dated 29-09-2016, in file No. Ed : 291 / LBP / 2015, Bengaluru, vide Annexure-T to the extent of prescribing a P.G. candidate becoming eligible if he / she were to have a degree B.Ed. in education in concerned subject as teaching method.
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(ii) Issue a writ of mandamus, thereby directing the respondents to approve the petitioner's appointment to the post of assistant teacher in Urdu i.e, Urdu Pandit in the 4th respondent's high school in the light of the law laid down by the Hon'ble Apex Court vide Annexure-S."
02. It is the case of the petitioner that the respondent No.4 had issued notification of recruitment, in the news paper on 10.10.2012 for filling up of one post of Urdu Pandit along with recruitment to the other posts, which are not relevant to the present petition. In response to the Notification, the petitioner had applied for the said post. She was selected by the respondent No.4 for the said post. The respondent No.4 submitted a letter to the Education Department for approving her appointment as Urdu Pandit in the said school. The Deputy Director of Public Instructions by its letter dated 15.06.2013 (Annexure-G) sent a letter to the Commissioner of Public Instructions, seeking certain clarification. The Commissioner in turn wrote a letter to Principal Secretary -5- NC: 2024:KHC-K:5402 WP No. 201011 of 2018 to the Education (Primary and High school Education) Department dated 30.09.2013 (Annexure-M) seeking for the clarification, quoting the relevant provision of Karnataka Education Act (for short 'KEA').
03. The Principal Secretary Education Department (Primary and High School) has written a letter to the Additional Commissioner of Public Instructions dated 31.12.2013 (Annexure-P) reiterating the provision of KEA and informed that the petitioner was not qualified and eligible for appointment to the said post.
04. Being aggrieved by the said letter dated 31.12.2013, the petitioner had filed W.P.No.103713/2013 (S-RES), challenging the letter dated 13.12.2013 (S-RES) and sought for writ of mandamus directing the respondents to approve her appointment.
05. The Coordinate Bench of this Court heard the W.P.No.103713/2013 (S-RES) and directed the respondents in that case to consider the representation of the petitioner after hearing her by giving sufficient -6- NC: 2024:KHC-K:5402 WP No. 201011 of 2018 opportunity to her and thereafter suitable orders shall be passed. The Government of Karnataka, Education Department, considered the directions of this Court in the above said writ petition and passed impugned order dated 22.12.2017 stating that she was not qualified for the said post, as per the Recruitment Rules, 1967.
06. The petitioner has challenged the said order dated 22.12.2017 and also the relevant provision of Recruitment Rules, 1967, in the present writ petition.
07. I have heard the arguments and perused the materials available on record.
08. The admitted facts are that the petitioner had educational qualification of Degree of B.A., with optional subject of History, Economics and political Science. B.Ed in English and History. And M.A. in Urdu from Osmania University, Hyderabad. She had not studied B.A. Degree, with optional subject Urdu. And She had not studied B.Ed. with Urdu as teaching methods.
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09. As per the Recruitment Rules, 1967 the educational qualification required for appointing the candidate to the post of language assistant / Urdu Pandit is as under:-
For Language Assistants :-
(a) Must be holder of a Bachelor degree in Arts with the concerned language as one of the optional subjects, namely Kannada, English, Urdu, Hindi Marathi, Telugu, Tami and Sanskrit or 4 years language Pandit course in Kannada, Vidwan in Sanskrit and Urdu Mushi examination conducted in the Karnataka Secondary Education Board.
AND
(b) Must be holder of a degree in education. Provided in case of Bachelor Degree holder who has not studied the concerned language as optional subject at the degree level, but shall be considered eligible if the concerned candidate-
(a) Is holder of a post graduate degree in the concerned language.
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(b) For the language Assistant in English, the candidate who holds a post graduate Diploma Certificate in English language from Regional Institute of English, South India shall also be considered eligible for appointment.
(c) In case of Hindi Language Assistant, must be a holder of Bachelor Degree with Hindi as major subject.
AND Must be holder of degree in Education with the concerned subject or subjects as teaching methods.
(d) In case of language Assistant in English, candidate who have not studied English as a teaching method at B.Ed. Degree level but is a holder of Post Graduate Diploma Certificate in English language from Regional Institute of English, South India, shall also be considered eligible for appointment.
Provided further that in case of Language Assistants in Hindi, candidate-
(i) Who has passed Rashtrabhasha Praveen and Shiksha Shatak (with Hindi and one other language as teaching method) courses -9- NC: 2024:KHC-K:5402 WP No. 201011 of 2018 conducted by the Dakshina Bharat Hindi Prachar Sabha and Pre-University Course with Kannada or any other regional language as medium of instructions at P.U.C. level; OR
(ii) Who possesses any other qualification as may be declared equivalent by the State Government.
May also be considered for selection.
10. The educational qualification required for the appointment to the post of language assistant / Urdu Pandit, is referred above. Admittedly The petitioner has no such educational qualification as on the date of the notification. It is not in dispute that in view of the said reasons her appointment was not approved by the Education Department of Government of Karnataka.
11. This is second round of litigation by the petitioner. As stated above, she had filed W.P.No.103713/2013 (S-RES) and that was disposed of on 02.03.2016, wherein the similar contention was taken. The Coordinate Bench of this Court, though came to conclusion
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NC: 2024:KHC-K:5402 WP No. 201011 of 2018 that the "This Court has neither expertise nor the equipment to decide and hold that the holder of B.A., B.Ed, M.A. in Urdu and M.Ed is equivalent to the holder of B.A. with Urdu as one of the optional subjects and to the holder of B.Ed with Urdu method. It is for the concerned or the competent authority to work out the equivalence, if any."
12. Therefore, the Court did not quash the letter of Principal Secretary Educational Department (Primary and High School) dated 31.12.2013. The liberty was given to the Government to consider the representation of the petitioner. Thereafter, the impugned order was passed.
13. Holding of higher educational qualification than the required qualification for recruiting to particular post is sufficient or not, cannot be decided by the court. As observed by the Coordinate Bench of this Court in the W.P.No.1013713/2013, the Court cannot consider whether holding of a Master Degree in Urdu is equilant to holding of B.A., degree with optional subject of Urdu and B.Ed with Urdu teaching method to appoint for the post of Urdu Pandit.
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14. It is pertinent to note that the petitioner has applied to the post of Urdu Pandit to teach high school. The work of a teacher is to educate students who are future of this Country. Even for preparing a syllabus to teach in the classes of Primary or High School, Government would appoint committee of experts and taking their opinion form a syllabus to the classes to be studied by the students. Therefore, even for prescribing certain educational qualification of a teacher, teaching in the primary school or high school, the government would have taken expert opinion and thereafter, drafted a KEA Rules. This Court is not equipped with relevant materials to consider the same.
15. The petitioner is not seeking an appointment to the post of clerk, such as second division assistant or first division assistant in government offices or school, wherein the specific educational qualification is not required, even holding of a degree / PUC or SSLC, may be sufficient depending upon the Recruitment Rules, but that is not
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NC: 2024:KHC-K:5402 WP No. 201011 of 2018 case with the Education Department. Looking to the qualification stated above prima-facie, it does not appear that there is no illegality or ultra-virus any law or provisions of the constitution.
16. The learned Additional Advocate General submits that in a B.Ed course if a candidate studied in the concerned language, teaching methods, then the mode and manner in which he / she has to teach to the students of primary school or high school would be given to such persons in the college. By virtue of the said knowledge and education, they can teach the students properly and make them to understand with the concerned subject. In the Master Degree they do not have such an opportunity of teaching methods. Therefore, even though Master Degree is a higher qualification, if we look into point of view of the students, the said qualification is not at all relevant or required or could help in any way for teaching of the students in the primary or high school. Therefore, merely the petitioner studied in the Master Degree with Urdu as
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NC: 2024:KHC-K:5402 WP No. 201011 of 2018 one of the subject, is not sufficient to teach the student studying in the high school or primary school level. The submission of learned Additional Advocate General is tenable.
17. When the candidate as on the date of appointment has no prescribed educational qualification, the Court cannot direct the Government to appoint such person to the concerned post. If that is done, it would be injustice to the candidates having similar education qualification. If the said fact is stated in the notification they could have also applied for the said post and they did not apply to it, since they had no required qualification. It will deprive an opportunity for such candidates.
18. Moreover, the Hon'ble Apex Court in the case of Zahoor Ahmad Rather and Others vs. Sheikh Imtiyaz Ahmed and others, reported in (2019) 2 SCC 404, it is held as under:-
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NC: 2024:KHC-K:5402 WP No. 201011 of 2018 "We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K. in the subsequent decision in Anita, The decision in Jyoti K.K. turned on the provisions of Rule 10 (a) (i). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti K.K. turned on a specific statutory rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a rule in the
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NC: 2024:KHC-K:5402 WP No. 201011 of 2018 present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench."
19. Therefore, even though the petitioner had higher qualification of M.A. in Urdu, but her candidature cannot be considered for the post of Urdu Pandit. Therefore, the submission of learned counsel for the petitioner that the petitioner is more qualified and having more experience to teach to the students who are studying in the primary school and high school, cannot be considered, as equivalent to the education qualification required for the said post.
20. The learned counsel for the petitioner would submit that in the previous writ petition, the petitioner has not challenged the provision of Recruitment Rules, 1967.
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NC: 2024:KHC-K:5402 WP No. 201011 of 2018 In view of the said Rules prevailing, the Coordinate Bench of this Court could not quash the Government Order. In the present case, she has sought for the relief of quashing the provision of KEA Act, is unconstitutional and discriminating in the nature. The relief sought regarding the equivalent in education qualification can be considered. He relies upon the judgment of the Hon'ble Apex Court in Civil Appeal No.1612/2018 (arising out of SLP (Civil) No.11404/2013) in the case of The State of Karnataka and others vs. Shankar Baburao Kangralkar and another.
21. The learned Additional Advocate General vehemently contended that there is no illegality or discrimination in the Recruitment Rules 1967. What are qualification required are specifically mentioned in the KEA Act. It is decided by the Government on the basis of requirement to a particular post. A person having a qualification, to teach, degree or post graduate students, cannot be considered for appointment to the post of
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NC: 2024:KHC-K:5402 WP No. 201011 of 2018 teacher in the primary school. He may not have the training or technic to teach students studying in the primary school, because of various reasons. Under such circumstances, it cannot be held that it is ultra-virus law or Constitution.
22. The learned Additional Advocate General would further submit that, in this case, the candidate ought to have had B.A. Degree with Urdu as one of optional the subject and must have studied B.Ed in Urdu teaching method, then only such candidate will be appointed to the post of Urdu Pandit. He further submits that the above referred judgment of the Hon'ble Apex Court, in the case of Shankar Kangralkar, is more or less helpful to the State, than the petitioner. In the above said judgment, it is held that the Court cannot consider pre-requisite of education qualification for recruiting to a particular post and hold that such qualification is not required or educational qualification are equivalent to the said qualification prescribed in the recruitment notification. Therefore, he prayed for rejection of arguments of the learned counsel for the petitioner.
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23. There is some weight in the submission of the learned Additional Advocate General.
24. The prescribed educational qualification to any post is a policy matter of the Government. It appears that there must be some study in this regard. Thereafter, certain educational qualifications are prescribed, especially in the case of recruitment to the post of teaching staff in educational field. There must be detailed study in the matter and after obtaining the opinion of the expert, the Government must have prescribed certain qualification to the post of teacher either in primary school, high school, college and post graduation.
25. Coming to the present case, the educational qualification prescribed for the language assistants is that he / she must be holder of a Bachelor Degree in Arts with the concerned language as one of the optional subject i.e., Urdu. He must be holder of a Degree in Education in concerned subject, in this case would be as a teaching method and the provision is given in case of person not
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NC: 2024:KHC-K:5402 WP No. 201011 of 2018 having degree in the concerned subject, then he / her education must be post graduate in the concerned subject. However, there is no such concession is given to the B.Ed. course. It must be for the reason that, in the B.Ed. course techniques of the teaching will be provided to persons studying the said course. Therefore, it cannot be held to be illegal.
26. In this case, she had not studied Urdu in the Bachelor Degree as well as in B.Ed. course. Hence, she had no required educational qualification to consider her name for appointment to the post of Urdu Pandit, as on the date of said notification of recruitment. Hence, she was not eligible to consider her name for appointment.
27. Under these circumstances, the provisions of Recruitment Rules 1967, is not ultra-virus constitution. Hence, the said rule cannot be quashed on the ground of discrimination.
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28. The learned counsel for the petitioner submits that during the pendency of this petition, she had obtained B.Ed Degree in Urdu and acquired prescribed qualification. Therefore, her case may be considered on that point also. The said submission is not acceptable. The prescribed qualification must be as on the date of notification and not later on. On this point the Hon'ble Apex Court in the case of Ashok Kumar Sharma and Others vs. Chander Shekhar and Another, reported in (1997) 4 SCC 18, held as under:-
"Where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued / published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to
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NC: 2024:KHC-K:5402 WP No. 201011 of 2018 it. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, an impermissible justification. The minority opinion in the 1993 decision in Ashok Kumar Sharma case that the 33 respondents, who were not qualified on the date of submission of the application but had acquired the requisite qualification before the date of interview, could not have been allowed to appear for interview, was right."
29. The notification issued by the respondent No.4 is for post of Teacher in Girls High School. The qualification of Teacher for the Primary School, High School, Pre- University and Degree are different, based on the requirement of a student to learn the subjects prescribed to the said classes. Merely, a person who had highly educated, having a Post Graduation or even acquired a Doctorate, cannot be considered to appoint to the post of Teacher in a Primary School. Merely, the qualification is
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NC: 2024:KHC-K:5402 WP No. 201011 of 2018 not sufficient, he must know how to teach the students studying in their respective standards in a primary school, similarly in the high school as well as in the college. Therefore, a person of having a Master Degree without required qualification of T.Ch etc., cannot effectively teach the students of the primary school, because he has not trained in the said teaching method to the primary school.
30. The rejection of representation of the petitioner is valid.
31. For the above said discussion, I proceed to pass the following;
ORDER The writ petition is dismissed Sd/-
(UMESH M ADIGA) JUDGE KJJ List No.: 1 Sl No.: 15 CT:PK