Umesh Chandra Sahu & Others vs State Of U.P. & Others
2013 Latest Caselaw 6940 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 29
 

 
Case :- WRIT - A No. - 66760 of 2012
 

 
Petitioner :- Umesh Chandra Sahu & Others
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Kshetresh Chandra Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

1. The petitioners have preferred this writ petition for issuance of a writ of mandamus for direction upon the respondents to exclude some qualification, which is not mentioned in the Statutory Rules.

2. The essential facts of the case are that the respondent no. 3 to 16 issued advertisements between 26.09.2012 to 31.10.2012 inviting the applications for appointment on the post of Assistant Master and Assistant Mistress in several subjects including Physical Education in Government Colleges in the region concerned. It is stated that the petitioners possess essential qualification mentioned in the advertisement and they submitted their applications in response thereto. All the petitioners had applied for appointment against the posts of Assistant Master in Physical Education.

3. On 04th December, 2012 the respondent no. 3/ Joint Director of Education, Allahabad Region, Allahabad issued a notification on provisional merit list for selection on the vacant posts of the Assistant Master Trained Graduate (L.T.) (Boys) in Government Boys Secondary Colleges of Allahabad Region. The merit of the Physical Education was shown for General, S.C., Freedom Fighter (General) and S.T. as 85.85, 78.57, 75.02 and 66.63 respectively. The enquiries made by the petitioners reveal that the respondents while preparing the merit list, had considered the teacher training qualification like B.P.Ed., which was not prescribed under the Statutory Rules.

4. A counter affidavit has been filed, wherein the fact that the qualification other than the Rules has been considered in the interest of Physical Education in Secondary Schools, thus the allegations made in the writ petition, have not been denied.

5. I have heard learned Counsel for the petitioner Sri Kshetresh Chandra Shukla and Sri J.S. Tomer, learned Standing Counsel.

6. Learned Counsel for the petitioners submits that the respondents in the advertisement, have mentioned the qualification as Bachelor Degree from a recognized University and Diploma in Physical Education, but the inclusion of Bachelor's degree in Physical Education has been illegally included while preparing the select list. The said action has vitiated the entire selection.

7. Learned Standing Counsel has relied on the contents of counter affidavit and he could not justify the respondents' authority to change the qualification mentioned in the Rules and advertisement.

8. I have heard learned Counsel for the respective parties and considered the submissions advanced by them.

9. The appointment of the Assistant Teachers in Government Secondary Schools, are regulated by "Uttar Pradesh Subordinate Educational (Trained Graduate Grade) Service Rules, 1983" (for short, "Rules, 1983)". The said Rules have been framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution. The Rule-8 of the Rules, 1983 lays down the academic qualification. It is enough to extract the qualification of Assistant Master/ Assistant Mistress (Physical Education);

Assistant Master/ Assistant Mistress (Physical Education)

Bachelor's Degree from a recognised University or a degree recognized by the Government as equivalent thereto and Diploma in Physical Education.

10. The advertisements issued by the respondent nos. 3 to 16 for the different regions, have been brought on record collectively as annexure no. 6 to the writ petition. From a perusal of the qualification for the Assistant Master/Assistant Mistress for Physical Education, it is evident that the same qualification, which is provided under Rule-8 of the Rules, 1983, has been mentioned. Thus there is no inconsistency between the Rules and the advertisement. The petitioners have stated in Para-19 and 20 of the writ petition that the enquiry made by them revealed that the respondents while preparing the merit list, have included teachers training qualification B.P.Ed. also. Para-19 and 20 of the statement of fact, are extracted herein below;

"19. That petitioners, after publication of said merit list by respondent no. 3, met with the respondent no. 3 and have got information about inclusion of other teachers training qualification in physical education then it was informed by the office of respondent no. 3 that other teachers training qualification like B.P.Ed. has also been included with D.P.Ed. as teachers training qualification for the post of Assistant Master in physical education.

20. That on account of inclusion of B.P.Ed. degree holder candidates in appointment on the post of Assistant Master in physical education is against the rule 8 which deals with essential qualification for appointment to Assistant Master in Government colleges. The teachers training course as prescribed in Item No. 6 of rule 8 is Diploma in Physical not Bachelor degree in Physical Education. Thus, inclusion of Bachelor degree of Physical Education at par with Diploma in Physical Education is wholly against the rule 8 of the Rules, 1983."

11. The respondents have relied the said paragraphs in paragraph-18 of the counter affidavit. The relevant part is reads as under;

"18.................It is relevant to mention here that B.P. Ed. is a degree of recognized University. D.P.Ed. is a Diploma certificate given by the department. Both degrees are for Assistant Teachers (Physical Education). On the aforesaid basis of B.P.Ed. & D.P.Ed. the joint merit list has been prepared which is in the interest of Physical Education in the Secondary Schools. It is further stated that in compliance of order dated 19.12.2012 passed by this Hon'ble Court, which was made available in the office of answering respondent no. 3 by the petitioner Umesh Chandra Sahu on 27.12.2012, the selection proceedings on LT grade Teachers (Physical Education) have been stayed and no selection has been made till date."

12. A simple reading of the aforesaid pleadings would demonstrably establish that the deviation made in the Rules have been admitted by the respondents. The Diploma in Physical Education and B.P.Ed. are two different qualifications. There are only four government colleges namely (i) Christian College of Physical Education, Lucknow; (ii) Government College of Physical Education, Rampur; (iii) Government Women's Physical College, Allahabad, and; (iv) Shri Gandhi Smarak Training College of Physical Education, Samodhpur, Jaunpur, where the education for Diploma in Physical Education is awarded. For admission in these four instructions a combined entrance test is held by the Registrar, Examination Regulatory Authority, U.P., Allahabad and the said course is of two years, whereas the Bachelor of Physical Education is one year course and the said course is conducted by the State Universities and Degree Colleges.

13. It is a trite law that once the Statutory Rules have been made, the selection shall be only in terms of the Rules. The State Government or the Examining Body does not have authority to change the qualification prescribed under the Rules without amending the Rules. It is a common ground that the Rules, 1983 have not been amended. As stated above, the advertisement has already been issued by the respondent nos. 3 to 16 correctly in terms of Rule-8 of Rules, 1983.

14. The Supreme Court in a long line of decisions, has held that appointment, which is contrary to the Statutes/ Statutory Rules, will be void in law. The reference may be made to the judgments of Supreme Court in the case of; J & K Public Service Commission v. Narinder Mohan (Dr.), (1994) 2 SCC 630; Rajasthan Public Service Commission v. Kaila Kumar Paliwal, (2007) 10 SCC 260; State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436; Pramod Kumar v. U.P. Secondary Education Services Commission, (2008) 7 SCC 153; State of Gujarat v. Arvindkumar T. Tiwari, (2012) 9 SCC 545.

15. At the time of moving of the writ petition, this Court on 19.12.2012 has passed an order that the selection shall abide by the final order passed by this Court. It is stated at the bar that the result is yet to be declared. The order-sheet reveals that on several occasions the Court has granted time to file counter affidavit but no counter was filed. Ultimately on 06.08.2013 the Court has granted two weeks and no more time to file counter affidavit, failing which it directed the Joint Director of Education to appear in person. Pursuant thereof counter affidavit has been filed by the Joint Director, Allahabad Region, Allahabad.

16. After careful consideration of the matter, I am of the view that the decision taken by the examining body to consider the qualification other than prescribed under Rules, is illegal and the entire selection stood vitiated on the ground that the respondents have made the selection contrary to the provisions of Rules, 1983 and the advertisements. The selection needs to be set aside. Accordingly it is set aside. A direction is issued to the respondents to prepare fresh selection list in terms of the Rule 8(6) of Rules, 1983 and the advertisement made in pursuance thereof.

17. Thus, writ petition is allowed.

18. No order as to costs.

Order Date :- 11.11.2013

[DS]

Hon'ble Pradeep Kumar Singh Baghel,J.

Writ petition is allowed.

For order, see my order of the date passed on separate sheets (four pages).

Order Date :- 11.11.2013

[DS]