Bharat Singh & Others vs Distt. Basic Shiksha Adhikari & ...
2012 Latest Caselaw 5075 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
CIVIL MISC. WRIT PETITION NO.35608 OF 1997 
 
Bharat Singh and others.					....Petitioner
 
Versus
 
District Basic Shiksha Adhikari,
 
Bijnor and others. 			 	         ....Respondents
 
**********
 
Hon'ble Rajes Kumar, J.

All the petitioners passed Intermediate examination conducted by U.P. Board. The petitioner nos.1 and 2 are of OBC category and petitioner nos.3 and 4 are of General Category. All the petitioner were appointed as Assistant Teachers on 01.07.1984 in Indira Shishu Niketan Noorpur, Bijnor, a recognized primary institution by U.P. Basic Shiksha Parishad. They have completed their ten years service in the said institution on 01.07.1994. The State Government issued Government Order on 06.09.1994 and in compliance thereof the Director of Education passed an order on 30.09.1994 by which it was directed that all those un-trained teachers working in a recognized institution of the Basic Shiksha Parisiad would be entitled for exemption from BTC training on completion of ten years service in a recognized institution of Basic Shiksha Parishad. In compliance of the said Government Order and the order of Director Education, the respondent no.3 by order dated 28.02.1995 has granted exemption to the petitioner nos.1 and 3 from BTC training from 01.07.1994 and by his order dated 10.03.1995 has granted exemption to the petitioner no.2 and by his order dated 04.04.1995 has granted exemption to the petitioner no.4 from BTC training from 01.07.1994.

The Director of Education by order dated 30.10.1995 has clarified that all those Assistant Teachers, who are working in a recognized institution of Basic Shiksha Parisahd would be entitled for exemption from BTC training and they would be entitled for all benefits of BTC training and entitled for the benefit of BTC training available to the working BTC trained teachers.

It appears that for the post of Assistant Teachers an advertisement was issued on 17.08.1997. The petitioners applications for Assistant Teacher under the aforesaid advertisement have not been considered. Being aggrieved, the petitioners filed the present writ petition seeking direction to the respondent no.1 to consider the case of the petitioners for appointment on the post of Assistant Teachers in respect of which advertisement has been made on 17.08.1997 and for direction to the respondent no.1 to treat the petitioners at par with BTC trained persons on 01.07.1994 in view of the Government Order dated 06.09.1994 issued by the State Government and the order dated 30.09.1994 and 30.10.1995 issued by Director of Education. This Court has directed to the respondent no.1 to file counter affidavit and as an interim measure the petitioners have been permitted to appear for selection to the post of Assistant Teachers in Junior Basic Schools run by U.P. Basic Shiksha Parishad but their result shall not be declared till further orders. Counter and rejoinder affidavits have been exchanged.

Heard Sri Vivek Saran, Advocate holding brief of Sri Abhishek Srivastava, learned counsel for the petitioner and Sri P.D.Tripathi, learned counsel appearing on behalf of Basic Shiksha Parishad and learned Standing Counsel appearing on behalf of respondent no.3.

Learned counsel for the petitioners submitted that :

(i) Government Order dated 06.09.1994 provided that those Assistant Teachers, who have completed ten years' of continuous service in a recognized institution shall be entitled for exemption from BTC training. The said Government Order provided that separate order of exemption be issued in respect of the Teachers concerned by the competent authority. In pursuance of the aforesaid Government Order, the petitioners have been exempted from BTC training by orders dated 28.02.1995, 10.03.1995 and 04.04.1995 respectively;

(ii)State Government under Section 19 of U.P. Basic Education Act, 1972 has power to make rules in respect of the condition of service of teachers to be appointed under the Act. In exercise of power under Section 19 of the Act, the respondents have framed the U.P. Basic Education (Teachers) Service Rules, 1981. Rule 8 of the said Rules provide the academic qualifications for appointment. Rule 10 gives power of relaxations for a particular class. The qualification provided in advertisement dated 31.08.1997 was with reference to the Rule 8. The exemption granted to the petitioners should be treated in exercise of power under Rule 10 and also for the purposes of advertisement dated 31.08.1997;

(iii)The Apex Court has held that the Government Order should be read in plain and simply language in order to understand its meaning and intention. Reliance is placed on the decision in the case of Bhakka Beas Management Board Vs. Krishan Kumar Vij and another, reported in (2010) 8 SCC, 701. (Para 36).

Learned counsel appearing on behalf of the Basic Shiksha Parishad submitted that the exemption from BTC training provided to the petitioners under the Government Order dated 06.09.1994 was only for the limited purposes to regularise their services in the institution even in the absence of BTC training but it does not apply to the fresh appointment by the advertisement. Unless the candidate fulfils the qualifications mentioned in the advertisement, which is also required under Rule 8, they are not eligible to apply for the post and can not be considered.

I have considered the rival submissions and perused the record.

Government Order dated 06.09.1994 was only to regularize the services of those teachers who were already working and the exemption from BTC training has been granted only to those teachers, who have completed ten years continuous service. This government Order does not apply to the fresh appointment. In the case of fresh appointment, it is always open to the employer to fix the qualification. The qualification for the assistant teacher for Basic Education is provided under Rule 8 of Rules, 1981. There is neither any Government Order nor any notification relaxing such qualification provided in Rule 8. The qualification mentioned in the advertisement is in consonance with qualification provided in Rule 8. Therefore, the submission of learned counsel for the petitioner that the exemption from BTC training granted in pursuance of the Government Order dated 06.09.1994 should also be considered for the purposes of advertisement dated 31.08.1997 has no substance.

In the case of Tata Cellular v Union of India, reported in J.T. 1994 (4) SC 532, the Apex Court has held that there should be judicial restraint in administrative decision. This principle will apply all the more to a Rule under Article 309 of the Constitution of India.

In the case of Dilip Kumar Garg and another vs. State of U.P. and others (supra), the Apex Court has held that Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer and it is not for this Court to sit over their decision like a Court of Appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions.

In the case of Union of India vs. Pushpa Rani and others (Supra), the Apex Court has held as follows:

"Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to malafides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."

In the case of State of M.P. and others vs. Raghuveer Singh Yadav and others (supra), the Apex Court has held as follows:

"It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Hear is a case that pursuant to amend Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules."

In the case of V.K. Sood vs. Secretary, Civil Aviation and others (supra), the Apex Court has held as follows:

"Thus it would be clear that, in the exercise of the rule making power, the President or authorized person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or conditions of service to an office or a post under the State. The rules thus having been made in exercise of the power under proviso to Article 309 of the Constitution, being statutory cannot be impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. Suffice to state that it is settled law that no motives can be attributed to the Legislature in making the law. The Rules prescribed qualifications for eligibility and the suitability of the appellant would be tested by the Union Public Service Commission.

It is next contended that several persons whose names have been copiously mentioned in the appeal were not qualified to hold the post of examiner and they were not capable even to set the test papers to the examinees nor capable to evaluate the papers. We are not called upon to decide the legality of their appointments nor their credentials in this appeal as that question does not arise nor are they before the Court. It is next mentioned by Mr. Yogeshwar Prasad, the learned Senior counsel that on account of inefficiency in the posts' operational capability repeatedly air accidents have been occurring endangering the lives of innocent travellers and this Court should regulate the prescription of higher qualifications and strict standards to the navigators or to the pilots be insisted on. We are afraid that we cannot enter into nor undertake the responsibility in that behalf. It is for the expert body and this Court does not have the assistance of experts. Moreover it is for the rule making authority or for the Legislature to regulate the method of recruitment, prescribe qualifications etc. It is open to the President or the authorized person to undertake such exercise and that necessary tests should be conducted by U.P.S.C. before giving the certificates to them. This not the province of this Court to trench into and prescribe qualifications in particular when the matters are of the technical nature. It is stated in the counter affidavit that due to advancement of technology of the flight aviations the navigators are no longer required and therefore they are not coming in large number. Despite the repeated advertisements no suitable candidate is coming forward. We do not go into that aspect also and it is not necessary for the purpose of this case. Suffice to state that pursuant to another advancement made in July, 1992, the appellant is stated to have admittedly applied for and appeared before the U.P.S.C. for selection and that he is awaiting the result thereof. Under these circumstances, we do not find any substance in this appeal. The appeal is accordingly dismissed. No costs."

In the case of Col. A.S. Sangwan vs. Union of India and others (supra), the Apex Court has held as follows :

"............A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of national considerations. We cannot, as Court, give directives as to how the Defence Ministry should function except to state that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because it functions under the Constitution and not over it. In this view, we agree with the submission of the Union of India that there is no bar to its changing the policy formulated in 1964 if these are good and weighty reasons for doing so.............It must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily.........So, whatever policy is made should be done fairly and made known to those concerned........."

In the result, the writ petition fails and is accordingly, dismissed.

Dated : 12.10.2012.

R./