Smt. Rubi Panwar And 7 Ors vs State Of U.P. And 14 Ors
2014 Latest Caselaw 7769 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 59
 

 
Case :- WRIT - A No. - 54288 of 2014
 

 
Petitioner :- Smt. Rubi Panwar And 7 Ors
 
Respondent :- State Of U.P. And 14 Ors
 
Counsel for Petitioner :- Durga Tiwari,G.K. Singh
 
Counsel for Respondent :- C.S.C.,Rashmi Tripathi
 

 
Hon'ble Rajan Roy,J.

Heard Sri G.K. Singh, learned Senior Advocate assisted by Smt. Durga Tiwari for petitioner and learned Standing Counsel for State.

As the issue involved herein is purely a legal one there is no need to call for a counter affidavit.

Petitioner herein are graduates and also possess the qualification of Bachelor of Physical Education i.e. B.P.Ed.

By means of this writ petition the petitioners are challenging the advertisement dated 27.9.2014 to 30th September, 2014 which has been issued by the respondent No. 5 to 15 for selection and appointment on the post of Assistant Teachers in L.T. Grade for physical education in Government Intermediate Colleges and Government Girls Intermediate Colleges.

The terms and conditions of service of the aforesaid posts are governed by the Rules know as U.P. Subordinate Educational Trained Graduate Grade) Service Rules 1983. As per the said Rules qualification for the post in question is Bachelor Degree from a recognized university or any degree recognized by the Government as equivalent thereto and Diploma in Physical Education.

The grievance of the petitioner herein is that as per Section 23(1) of Right of Children to Free and Compulsory Education Act, 2009 read with Section 12(A) read with 32(2) of the National Council for Teachers Education Act, 1993 as amended from time to time and Regulations, namely National Council for Teachers Education(Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulation 2001 notified on 3.9.2001 i.e. Regulation 3(i), the qualification in the second Schedule to the said Regulation was applicable for recruitment of teachers for physical education in question. In the second schedule the qualification prescribed for teachers of physical education in secondary and high school is graduate with Bachelor Degree of Physical Education i.e. B.P.Ed. or its equivalent.

The submission of learned Senior Advocate appearing for the petitioner is that the Act of 1993 being a Central Act, the said Act and regulations made thereunder have overriding and prevailing effect over the Rules of 1983 made by the State Government in exercise of powers under the Proviso to Article 309 of Constitution of India, therefore the State Government has erred in issuing the impugned advertisement prescribing the qualification of Diploma in Physical Education i.e. D.P.Ed. which is also lessor qualification, instead of Bachelor of Physical Education i.e. B.P.Ed.

In this regard attention of the Court has been has been invited to the Act No. 18 of 2011 by which above mentioned Act of 1993 has been amended w.e.f. 15.6.2012 and Section 12(A) read with Section 32(2) empowers the N.C.E.T. to make regulations to determine the qualification of persons for being recruited as teachers in any Pre-primary, Primary,  Board Primary, Secondary, Senior Secondary or intermediate classes or Colleges, established, run, aided or recognized by the Central Government, State Government, local or other authorities.

Learned Senior Advocate also submitted that under Section 23(1) of the Act, 2009, N.C.E.T. is empowered to lay down the minimum qualification for appointment as a teacher in Class 1 to 8. He also submitted that on 29th July, 2011 a notification was issued by the N.C.E.T. and as per Clause 5(b) of the said notification, the minimum qualification for physical education teacher as referred in the Regulation dated 3.11.2001 would be applicable.

Learned Senior Advocate submits that without considering the norms prescribed by N.E.C.T. under Act of 1993, Regulation 2001 and the Notification issued by it respondents have issued impugned advertisement prescribing D.P.Ed. as the qualification instead of B.P.Ed. thereby clearly violating the provisions of the Central enactment and prejudicing the petitioners  who possess the latter qualification but have been ousted from the zone of consideration.

Learned counsel also submitted that as per Appendix C of Regulation 2001, D.P.Ed., has been prescribed only for appointment as Assistant Teacher in physical education upto primary level of Junior High School, not above that.

In this regard, learned counsel also referred to the judgment dated 11.11.2013 passed in Civil Misc. Writ Petition No. 66760 of 2012 (Umesh Chandra Sahu and others Vs. State of U.P. and others which was filed by the certain persons seeking exclusion of B.P.Ed qualification holders from the zone of consideration  for the post in question on the ground that the same was in violation of the qualification prescribed under the Rules of 1983 and this Court vide the aforesaid judgment dated 11.11.2013 allowed the said writ petition, however, on a special appeal Defective No. 1275 of 2013 having been filed, the said judgment was set aside and the matter was remitted back to the learned Single Judge for consideration afresh. Learned counsel invited attention of the Court to the submissions recorded  in the judgment dated 16.12.2013 passed in the Special Appeal referred above based on the aforesaid provision of N.C.T.E. Act 1993 and Act of 2009 etc.

In view of the above, learned counsel submits that the impugned advertisements are not at all sustainable being in gross violation of statutory provisions contained in the aforesaid Acts and Regulations framed by the Central Act. Therefore, they are liable to be quashed and the respondents be directed to prescribe a qualification in terms of the above referred provisions of law.

Learned Standing Counsel on the other hand, based on the instruction dated 20th October, 2013 received by him, submits that  the State Government had granted permission for filling up 3964 and 2681 vacant post of assistant teachers , L.T. Grade in women and men branches. D..P.Ed . along with graduation from a recognized university is the qualification prescribed under the Service Rules 1983, therefore, accordingly, advertisements have been issued mentioning this qualification as mentioned in the Rules of 1983.

He further submits that the Writ Petition No. 66760 of 2012 was allowed by this Court vide judgment dated 11.11.2013 for completing selection in accordance with the qualification prescribed under the Rules of 1983 and excluding the qualification not prescribed therein. In Special Appeal No.1275 of 2013 the judgment was passed on 16.12.2013 and according to the instruction dated 20.10.2013 the judgment dated 11.11.2013, passed in Civil Misc. Writ Petition No. 66760 of 2012 was 'restored' and learned Single Judge was asked to decide the matter afresh by January, 2014 but the order of the learned Single Judge is still awaited. The instructions further go on to state that there is no stay order in the writ pending before this court, therefore, in view of the direction of the State Government the advertisements in question have been issued.

The instruction dated 20th October, 2013 received by the office of the Chief Standing Counsel have been placed before the Court and the same are taken on record. Along with the instruction is annexed an order of the State Government dated 22.7.2014 granting permission to the Director Education Secondary U.P. Lucknow for undertaking the aforesaid selection in question. Other orders dated 12.9.2014, 19.9.2014, 21.9.2014 are also annexed therewith.

There appears to be merit in the submission of the learned Senior Advocate appearing for the petitioner.

A bare perusal of the judgment dated 16.12.2013 passed in Special Appeal No. 1275 of 2013, reveals that the Division Bench did not restore the judgment dated 11.11.2013 passed in Writ Petition No. 66760 of 2012, as has wrongly been mentioned in para 4 of the instructions dated 20th October, 2013. In fact it set aside the said judgment and remitted the proceedings back to the learned Single Judge for consideration afresh.

Relevant extract of the judgment is quoted herein above-

"12. The submission which has been urged before the court in appeal had not been urged before the learned Single Judge. None of the appellants were a party to the petition before the learned Single Judge. Undoubtedly, the submission does raise an important question of law which would merit determination in the writ proceedings. We, therefore, grant leave to appeal to the appellants, to appeal against the judgement of the learned Single Judge. In our view, it would be appropriate and proper to set aside the impugned judgement and order and to remit the proceedings back to the learned Single Judge for consideration afresh. Since the issue which has been raised in the appeal has not been decided by the learned Single Judge, we are of the considered view that it would be appropriate not to decide that question in appeal for the first time.

13. Hence, while allowing the appeal, we set aside the impugned order of the learned Single Judge dated 11 November 2013. Writ Petition No.66760 of 2012 shall accordingly be restored to the file of the learned Single Judge. The appellants shall be impleaded as party respondents to the writ proceedings and the amendment shall be carried out within a period of two weeks from today. We permit the appellants to file their counter within a period of four weeks from today. We clarify that we have not expressed any view on the correctness of the submission which has been urged on behalf of the appellants and we keep all the rights and contentions of the parties open.

14.Parties may apply before the learned Single Judge for fixing a date of hearing. Liberty to mention before the learned Single Judge in the month of January, 2014.

15. The special appeal is, accordingly, disposed of. There shall be no order as to costs. "

Section 12(A) of the National Council for Teachers Education Act 1993 as inserted vide amendment Act 2011 dated 13.10.2011 reads as under-

"12A. For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or college, by whatever name called, established, run, aided or recognised by the Central Government or a State Government as a local or other authority;

Provided that nothing in this section shall adversely affect the continuance of any person recruited in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges, under any rune, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the commencement of the National Council for Teacher Education (Amendment) Act, 2011 solely on the ground of non fulfilment of such qualifications as may be specified by the Council:

Provided further that the minimum qualification of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009.

Section 32(2)(dd) of the said Act of 1993 as inserted by the aforesaid amendment Act 2011 reads as under-

"(dd) the qualifications of teachers under Section 12A".

Relevant extract of the Regulations of 2001 dated 3.9.2001 under the aforesaid Act of 1993, reads as under-

"Qualification for Recruitment.

I)The qualification for recruitment of teachers in educational institutions mentioned in Section 2 above shall be as given in the First and Second Schedules to these Regulations. The qualifications prescribed in the First Schedule shall apply for recruitment of teachers for teaching school subjects.. The qualifications prescribed in the Second Schedule shall apply for recruitment of teachers for Physical Education.

II)For recruitment of teachers for co-curricular activities such as work experience, art eduction, etc., existing qualifications or such other qualifications as may be prescribed by the concerned government shall apply.

III)For promotion of teachers from one level to the next level of teaching, minimum qualification as given in the Schedules for the concerned level should be required."

Relevant provisions of the Second Schedule to the National Council for Teachers Education (Determination of Qualification for Recruitment of Teachers) Regulation 2001 reads as under-

"Second Schedule to the National Council for Teacher Education (Determination of Qualifications for Recruitment of Teacher) Regulation 2001.

Qualification for recruitment of teachers of Physical Eduction in Educational Institutions mentioned in Section 2 of the Regulations.

	LEVEL     	MINIMUM ACEDEMIC AND 					PROFESSION QUALIFICATIONS.
 
I Elementary	(I) Senior Secondary School certificate 				or its equivalent; and
 
			(ii) Certificate in Physical Educational 				(C.P.Ed) or a duration of not less than 				two years or its equivalent.	
 
II Secondary/High School.
 
			Graduate with Bachelor of Physical 				Education (B.P..Ed. Or its equivalent.
 

III.Senior Secondary (Physical Education as an elective subject) Note: 1. Some of the States are having certificate in physical education courses of one year duration only, while in some other States students passing secondary level examination are admitted to certificate in physical education courses. Such States may, by 2005, conduct certificate in physical education programmes of a duration not less than two years with admission being open to Senior Secondary/Intermediate pass candidates. In the meantime candidates who have undergone certificate courses in physical eduction of one year duration or were admitted to such programmes after passing secondary level examination only may be given employment in the concerned State only."

In contradiction to the aforesaid, Rule 8 of the U.P. Subordinate Educational (Trained Graduate Grade) Service Rules, 1993 reads as under-

"6 Assistant Master/Assistant Mistress (Physical Education.

Bachelor Degree from a recognised University or a degree recognised by the Government as equivalent thereto and Diploma in Physical Eduction."

The question is as to whether the qualification prescribed by the N.C.T.E. Under the aforesaid Act and Regulations for the post of teacher of physical education for Classes 1 to 8 will apply or the qualification prescribed by the State Government under Service Rules of 1983 will apply.

This controversy came up for consideration before a Division Bench of this Court in Special Appeal No. 130 of 2014 in respect to the qualification for the post of assistant teachers in the primary schools i.e. Classes 1 to 5 in the State of U.P.. A Single Judge of this Court held that the Special B.T.C. Recruitment derive was permissible on the basis of the qualifications mentioned in Rule 8 of U.P. Basic Education (Teachers) Service Rules 1981 and not the qualification prescribed by the N.C.T.E. under the Act of 1993 as amended in 2011, regulations framed thereunder and the notifications issued thereunder. A Special Appeal was filed by the aggrieved persons, as referred above, and in the Special Appeal the judgment of the learned Single Judge of this Court was set aside.

Relevant extracts of the judgment of the Division Bench of this Court dated 5.2.2014 rendered in the aforesaid appeal are quoted hereunder-

"9. At this stage, it may also be necessary to note that the Parliament enacted the National Council for Teacher Education (Amendment) Act, 2011 to provide that the Act shall apply, inter-alia, to schools imparting pre-primary, primary, upper primary, secondary or senior secondary education and to colleges providing senior secondary or intermediate education and to teachers of such schools and colleges. Similarly, the expression 'school' was defined in Section 2(ka) to mean any recognised school imparting pre-primary, primary, upper primary, secondary or senior secondary education, or a college imparting senior secondary education. Section 12A was inserted into the principal legislation to empower the NCTE to determine the qualifications of persons to be recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or by a State Government or a local or other authority. The provisions of the Act and Regulations have been held to be binding by a Full Bench of this Court in Shiv Kumar Sharma (supra). Prior to the enforcement of the amending Act, the Supreme Court had referred for consideration by a larger Bench of three Hon'ble Judges, an earlier view taken in Basic Education Board, U.P. Vs. Upendra Rai & Ors.2 in which it had been held that the NCTE Act does not deal with ordinary educational institutions like primary schools, high schools, intermediate colleges or universities and would, consequently, not override the U.P. Basic Education Act and the Rules made thereunder. In view of the amending Act, a Bench of three learned Judges of the Supreme Court, while deciding the reference on the correctness of the view in Upendra Rai (supra), observed that during the pendency of the appeals, the Amending Act had rendered the issues for consideration referred to the larger Bench as academic. These developments have been taken due note of in a recent judgment of a Full Bench of this Court in Ram Surat Yadav & Ors. Vs. State of U.P. & Ors.3

10.Thus, the point to be noted is that after the enforcement of the Act of 2009 and the issuance of the notification of 23 August 2010, the qualifications which have been prescribed for appointment of primary teachers must necessarily be those that are stipulated in the notification dated 23 August 2010, as amended by the notification dated 27 August 2011.

12. The qualifications, which have been prescribed by the NCTE in the notification dated 29 July 2011 include Senior Secondary with at least 50% marks together with a 2-year Diploma in Education (Special Education). Once, these qualifications have been prescribed by the NCTE, this would necessarily be binding and it is not open to the State Government to exclude (from the zone of eligibility) the persons who are otherwise qualified in terms of the notification dated 23 August 2010 as amended on 29 July 2011.

13. In this view of the matter, we are of the opinion that the learned Single Judge was in error in coming to the conclusion that since the recruitment was in pursuance of a special drive, the Government was justified in confining the eligibility qualifications only to those who held the BTC qualifications for the reason that such candidates could not be adjusted earlier for want of TET qualification. The passing of the TET was introduced as a mandatory requirement by the notification dated 23 August 2010 issued by the NCTE. Persons who did not fulfill the eligibility conditions prescribed in the notification dated 23 August 2010, as amended on 29 July 2011, were not qualified for consideration for appointment as primary school teachers. Hence, there was no occasion for the State to contend or for that matter the learned Single Judge to accept the submission that in order to adjust such BTC qualified candidates, the present advertisement had been issued. The learned Single Judge held that the appellants could not claim equivalence with those candidates who possess BTC qualification. This, in our view, begs the question because once the Diploma in Education (Special Education) is held to be a qualification which is recognised for appointment of Assistant Teachers for teaching Classes I to V, it would be impermissible for the State Government to exclude them from being considered for appointment. In a special drive or otherwise, it is not open to the State Government to exclude one class of teachers who fulfill the qualifications for eligibility prescribed by the NCTE. Any such action would be impermissible for the simple reason that the exclusive power to prescribe eligibility qualifications for such teachers is vested in the NCTE. Once the NCTE has spoken on the subject, as it has through its notification, those qualifications must govern the eligibility requirement. Jurisdiction and power of the NCTE to do so is now settled beyond any doubt, as noted by the Supreme Court."

Thus the ratio of the aforesaid judgment is very clear i.e. qualification for appointment as teachers of pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or college, by whatever name called, established, run, aided or recognised by Central Government or by State Government or a local of other authority must necessarily be those that are stipulated under the Act of 1993 as amended from time to time and the regulations and notifications issued thereunder. The contrary qualification prescribed by the State Government under rules framed by it have to give way to the qualifications prescribed by N.C.E.T.,as aforesaid.

In view of the provisions of Article 309 of the Constitution of India and a catena of decision on this issue it is trite that service Rules made under the proviso to Article 309 have to give way to statutory regulations made under a legislative enactment. Reference may be made in this regard to the case reported in (1998)3 SCC 495 A.B. Krishna Vs. State of Karnataka.

In this case there is a clear contradiction in the qualification prescribed by the State under the Service Rules made by it under the Proviso to Act 309 of the Constitution of India and that prescribed by N.C.T.E. under the Act of 1993. Thus the Service Rules of 1983 made under the proviso of Article 309 will have to give way to the statutory regulations made by NCTE under Section 32(2) of the Act of 1993, especially in view of the provisions of the Act of 1993, as the field relating to prescription of qualification of teachers of institutions in question is covered by the Act of 1993.

As neither the instructions nor the orders of the State Government annexed therewith reveal that the State Government has at any point of time considered the controversy involved herein in the light of the aforesaid provisions and judgment of the Division Bench in Special Appeal Defective No. 130 of 2014, therefore, in my view, even though writ petition No. 66760 of 2012 is still pending adjudication before this Court, it is necessary that the State Government should first of all apply its mind to the controversy at hand and take a considered decision in the matter keeping in mind the judgment dated 5.2.2014 passed in Special Appeal (Defective) No. 130 of 2014 and other pronouncements on the issue, as may be applicable, before proceeding with the selection in question. The last date for submission of form is 30.10.2014. If the respondents are allowed to proceed with the selection, involving thousand of posts, without considering the relevant aspects of the matter, as aforesaid, it will lead to a lot of legal complications.

Merely because there is no stay in the pending writ petition referred above, it does not absolve the State Government from taking a considered decision in the light of the legal provision referred to herein above regarding the qualification to be prescribed for the post of Assistant Teacher, L.T. Grade (for physical education) before proceeding to sanction the selection for the said post. In fact it is obligatory on the State Government to do so in view of the conflict and contradiction noted herein above and the provision of the Constitution contained in the proviso to Article 309.

In the event respondents are permitted to proceed with the selection in question then legal complications will result leading to unnecessary litigation.

Accordingly, I dispose of the writ petition by issuing a writ of mandamus to the respondent no. 1 to consider the issue regarding prescription of qualification for the post of assistant teacher for physical education in the concerned schools, which is the subject matter in issue in this writ petition, in the light of the discussion made herein above, and take a considered decision in accordance with law, within a period of two months from the date a certified copy of this order is produced before him.

It shall be open for the petitioner to submit a detailed representation in this regard before respondent no. 1 within a period of ten days from the date of receipt of certified copy of this order and in such an eventuality the same shall also be considered and decided by the respondent no. 1 accordingly.

In the meantime, respondents are restrained from holding any selection in pursuance to the impugned advertisements. This restraint order shall cease to operate on expiry of two weeks from the date such decision is taken by the respondent no. 1.

Respondent no. 1 shall communicate the said decision to the petitioners forthwith.

With the aforesaid observation, this petition stands disposed of.

Order Date :- 29.10.2014

M.A.A.