Rakesh Kumar Dube vs State Of U.P. Thru' Education ...
2018 Latest Caselaw 1823 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 20.07.2018
 
Delivered on 03.08.2018
 
Court No. - 34
 

 
Case :- WRIT - A No. - 26056 of 2003
 

 
Petitioner :- Rakesh Kumar Dube
 
Respondent :- State of U.P. and others
 
Counsel for Petitioner :- Vinod Kumar Singh, Pradeep Verma, R.K. Ojha
 
Counsel for Respondent :- C.S.C., Hari Om Tewari, I.R. Singh
 

 
Hon'ble Sudhir Agarwal, J.

1. Heard Sri R.K. Ojha, learned Senior Counsel, assisted by Sri Shivendu Ojha, Advocate, for petitioner; and, learned Standing Counsel and Sri I.R. Singh, Advocate, for respondents.

2. This writ petition under Article 226 of Constitution has been filed by sole petitioner, Rakesh Kumar Dube, assailing order dated 14.05.2003 passed by District Basic Education Officer, Fatehpur (hereinafter referred to as "DBEO") holding that petitioner lacks requisite training qualification and B.Ed. Certificate submitted by him is forged and B.P.Ed. Certificate of Amrawati (Maharashtra) is not recognised, his appointment on the post of Assistant Teacher is illegal and, therefore, proposal for his appointment is being rejected. Petitioner has further sought a mandamus commanding DBEO to make payment of arrears of salary from February, 2002 along with interest.

3. Facts in brief, giving rise to present dispute are as under.

4. Swami Lakshananand Junior High School, Rustampur, Post Office Gauri Aunra, District Fatehpur (hereinafter referred to as "School"), maintained by a private Society and is duly recognised by U.P. Board of Basic Education, Allahabad (hereinafter referred to as "B.E. Board") under the provisions of U.P. Basic Education Act, 1972 ("Act, 1972"). School was taken in grant-in-aid with effect from 01.04.1996 and since then for the purpose of salary of teaching and non-teaching staff, it is governed by U.P. Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 (hereinafter referred to as "Act, 1978"). It is also not in dispute that conditions of service of Teachers of School are governed by U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as "Rules, 1978").

5. Petitioner obtained Graduation degree in 1981 as a private candidate from Bundelkhand Mahavidyalaya, Hamirpur, affiliated to Bundelkhand University, Jhansi. It is also claimed that he passed Bachelor of Physical Education, Summer, 1991, one year degree course of Amrawati University (Maharashtra) from Bundelkhand Mahavidyalaya, Hamirpur as a private candidate. Post of Assistant Teacher fell vacant in the School whereupon Management of School advertised vacancy and petitioner applied in pursuance thereof. He was selected and recommended for appointment mentioning his qualification as B.A., B.P.Ed. Management sought approval from DBEO., who vide letter dated 25.02.1997 granted temporary approval on the condition that in case any information given by petitioner is found incorrect, approval may be cancelled. Appointment letter was issued by Manager of School on 25.02.1997 and petitioner joined on 01.03.1997. When further inquiry was made by DBEO, it was found that petitioner did not possess requisite qualification, hence salary bill was not passed. Principal of School stopped petitioner from signing attendance register from 27.03.2003 whereagainst petitioner made complaint to DBEO vide letter dated 21.04.2003 (Annexure-8 to the writ petition) and ultimately impugned order has been passed.

6. On behalf of Committee of Management, respondent-5, a counter affidavit has been filed stating that minimum qualification prescribed under Rule 4 of Rules, 1978 is a training qualification, such as Hindustani Teaching Certificate (hereinafter referred to as "HTC"), Junior Teaching Certificate (hereinafter referred to as "JTC"), Basic Teaching Certificate (hereinafter referred to as "BTC") or Certificate of Teaching (hereinafter referred to as "CT"). Rule-5 of Rules, 1978 further provides that no person shall be appointed as Assistant Teacher in substantive capacity in any recognised School unless he possesses minimum qualification prescribed for such post. It is said that petitioner did not possess requisite training certificate, therefore, his appointment is patently illegal and void and he has no right to hold post. It is further said that in the original application dated 15.09.1992 submitted by petitioner at the time of recruitment on the post of Assistant Teacher, he described his qualification as B.Ed. and not B.P.Ed. He also appended a mark sheet of Kanpur University of B.Ed. Examination, 1987. Since the aforesaid mark sheet was not found genuine as per letter dated 13.09.2002 sent by Registrar, Kanpur University, petitioner was informed about the aforesaid deficiency and given opportunity to submit genuine documents but he failed. Petitioner, in fact thereafter tried to take advantage of B.P.Ed. Certificate of Amrawati University though it was not recognised as a valid training qualification for appointment in State of U.P.

7. Averments contained in Para-10 of counter affidavit have been denied in para-14 of rejoinder affidavit and it is said that petitioner never submitted B.Ed. Certificate.

8. The material issue up for consideration in this writ petition, therefore, is, "whether petitioner at the time of appointment, possessed requisite qualification for appointment as Assistant Teacher in Primary School".

9. Rules 4 and 5 of Rules, 1978 read as under:

"4. Minimum qualification.- (1) The minimum qualification for the post of Assistant teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and Teacher's training Course recognised by State Government or a Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training).

(2) The minimum qualifications for the appointment to the post of Headmaster of a recognised school shall be as follows:

(a) A degree from a recognised University or an equivalent examination recognised as such;

(b) A teacher's training course recognised by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and

(c) Three years' teaching experience in a recognised school."

"5. Eligibility for appointment.-- No person shall be appointed as Headmaster or Assistant Teacher in substantive capacity in any recognised school unless-

(a) he possesses the minimum qualifications prescribed for such post;

(b) he is recommended for such appointment by the Selection Committee." (emphasis added)

10. Rules, 1978 do not possess any provision empowering any authority, whatsoever, to relax minimum qualification prescribed therein for appointment of a Teacher in a recognised school.

11. From the perusal of Rules, 1978 and Act, 1978 and in particular Rules 4 and 5 and Section 10, it is evident that for a valid appointment to the post of Teacher in a recognised Junior High School one must possess requisite minimum qualification prescribed in Rule 4 and salary for payment of such a Teacher of a recognised Junior High School shall be liability of State Government. Section 10 of Act, 1978, therefore, contemplates a valid appointment in the eyes of law before making State Government liable for payment of salary to such a Teacher of a recognised Junior High School.

12. Learned counsel for petitioner since has relied on the fact that petitioner possessed qualification of B.P.Ed. from Amrawati University (Maharashtra) and it should be taken to be recognized Teachers Training qualification, for the purpose of present writ petition, I am not going into the fact whether petitioner claimed B.Ed. qualification and subsequently changed his stand, but I proceed to examine the issue taking it correct that petitioner possessed B.P.Ed. qualification from Amrawati University, still "can it be said that it is a requisite recognized Teachers Training qualification contemplated under Rules 4 and 5 of Rules, 1978 so as to make his appointment as Assistant Teacher in Primary School valid."

13. This could not be disputed by learned counsels for parties that whenever a person claims salary from State Exchequer, it is obligation upon such person to prove that he has been validly appointed on the post in question and, therefore, entitled to salary. In Pramod Kumar Vs. U.P. Secondary Education Services Commission and others, 2008(7) SCC 153 considering a similar question, Court held as under:

"The appellant, however, has filed a writ application for issuance of or in the nature of a writ of mandamus. He, therefore, must establish existence of a legal right in himself and a corresponding legal duty in the State. If he did not possess the requisite qualification to hold a post, he could not have any legal right to continue. It was, therefore, immaterial as to why and when the said proceeding had been initiated against him" (emphasis added)

14. Nothing has been placed before this Court to show that a qualification in Physical Education was recognized by State Government as equivalent to HTC, JTC, BTC or CT. Even if the factum that petitioner possessed B.P.Ed. certificate/degree from Amrawati University is accepted to be true, unless it is shown that the said qualification has been declared equivalent to teacher's training qualification recognized by State Government of U.P., as mentioned above, it cannot be said that petitioner possessed requisite training qualification so as to become eligible and qualified to be appointed as Assistant Teacher in a Primary School governed by Rules, 1978.

15. Learned counsel for petitioner placed reliance on U.P. Board of Basic Education, Allahabad's Notification, filed as Annexure-1 to Rejoinder Affidavit, stating that certain equivalence declared earlier were revoked by Government Order dated 11.08.1997 and it was reiterated that the aforesaid revocation is only with effect from 11.08.1997, though petitioner obtained B.P.Ed. degree from Amrawati University in 1991, therefore, it was a valid qualification. The aforesaid Annexure-RA1 reads as under:

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"Uttar Pradesh Basic Education Board, Allahabad

In compliance of the order dated 04.12.2001 passed in Writ Petition No. 40070/2001 filed in the Hon'ble High Court, it is notified to the general public that the recognition/equivalence to the training qualification prescribed earlier for appointment to the post of Assistant Teacher in the schools under the control of the Uttar Pradesh Basic Education Board has been scrapped vide Government Order No. 2657/15-05-97-127/97 T.C., dated 11.08.1997 issued by the Government of Uttar Pradesh in view of the provisions of NCET Act. The candidates trained from these institutions have, from that very date, ceased to be eligible for being appointed to the post of teacher in the schools of the board.

The Circular issued by the Directorate of Education is No. 3-20490-639/15-3-25/72-73 dated 16.03.1973. By way of other circulars issued in pursuance of this very circular, these Training Certificates/Diplomas of other states/countries are, w.e.f. 11.08.1997, not eligible for being used for appointment in the schools of the board because of scrapping of the equivalence (details herein below) given earlier as against the Training Certificates/Diplomas of Uttar Pradesh.

1.

B.Ed. and B.T. from Punjab University

L.T.

2.

B.Ed. From Vishwa Shanti Niketan, West Bengal

L.T.

3.

B.T. From Rajasthan University

L.T.

4.

B.T. From Calcutta University

L.T.

5.

Government Teachers' Training College, Bhagalpur, Bihar

L.T.

6.

Diploma in Physical Education from Bombay

Diploma in Physical Education from Uttar Pradesh

7.

J.A.V. from Punjab

C.T.

8.

a) Matriculates (Men and Women) from Jammu Kashmir who have obtained B.E.C./D.T. Certificates

b) Middle School Examination passed women who have obtained B.E.C./D.T. Certificates

J.C.T.

H.T.C.

9.

Junior Basic Education Diploma from Jamia Millia Islamia, Delhi

H.T.C.

10.

Junior Basic Training Certificate from Punjab

H.T.C.

11.

Normal Training Certificate from C.P. & Berar

H.T.C.

12.

S.V. Examination from Punjab

H.T.C.

13.

J.V. Examination from Punjab

H.T.C. and Old P.T.

14.

H.C.T. from Bihar

P.T.C.

15.

Anglo-Indian Teachers' Certificate from Punjab Education Department

C.T.

16.

Secondary Certificate from Maharashtra

The cases of teachers having this certificate from Maharashtra who have opted Hindi out of the subjects prescribed for this training and have obtained this certificate from the Regular Training College, Maharashtra may be considered for working in the educational institutions of Uttar Pradesh on the basis of personality traits and as also of the teaching qualification required in Uttar Pradesh.

17.

Primary Teachers Certificate of Nairobi, Kenya (?).

JTC, with the condition that the candidate who has obtained this certificate of Nairobi must have passed High School or equivalent examination with Hindi within two years from the date of appointment to the post of teacher in Uttar Pradesh.

18.

Senior Basic Training of North-East Frontier Agency (NEFA)

BTC

19.

Basic HTC of Rajsthan

BTC

20.

Basic HTC of Gandhi Vidya Mandir Sardarshahr, Rajsthan

BTC

21.

Buniyadi Prashikshan Patropadhi of Madhya Pradesh

BTC

22.

Senior and Junior Basic Training Certificate, Teachers' Training Examination of Bihar

BTC

23.

Certificate of physical education provided under National Fitness, Directorate of Ka.San., Education Ministry, Government of India, and Diploma by Military department (Certificate of Military Department)

1. Must have undergone a training for IA 1st Class + A-course at School of Education. '(IA first class + a course at a school of education)'.

Must have undergone training for IA Special at ASE or Indian Education Training Centre. '(Certificate + A-course at a A.S.E. Avam Indian Education Training Centre)'.

Certificate and Diploma in Physical Education from Uttar Pradesh.

BTC or HTC, JTC

Government Order No. 14/01/67-Niyukti-4: Dated: 4th May, 1972

24.

For recruitment to the posts of the state services, the degrees/diplomas awarded by the Tribhuvan University situated at Kathmandu in Nepal were awarded permanent recognition at par with the same degree and diplomas awarded by any recognised Indian university.

Government Order no. 14/8-66-Niyukti (Kha): Dated: 29th August, 1996

25.

For the employment under the state government, formal orders of the government are not necessary for purpose of recognising the degrees and diplomas awarded by any university of India governed by any act of the union or of any state legislature. They are recognised by themselves. In consultation with the Public Service Commission, it has also been decided that, for recruitments to the posts and services under the state government, the degrees and diplomas awarded by the institutions deemed to be universities under the section 3 of the University Grant Commission Act, 1956, be taken to be recognised by themselves.

26.

LT (Hindi Teachers Training) Examination from the state of Tripura.

C.T.

27.

Buniyadi Shiksha Visharad Prashikshan by Sewa Bharti Adhyapan Mandir, Sewa Puri, Varanasi.

B.T.C.

(Sanjay Sinha)

Secretary

Uttar Pradesh Basic Education Board

Allahabad."

(English Translation by Court)

16. At Item No. 6 in the aforesaid document, Diploma in Physical Education in Bombay State was declared equivalent to Diploma in Physical Education in State of U.P. At Item No. 25, it is made clear that Degree and Diploma granted by various Universities authorized under University Grants Commission Act, 1956 (hereinafter referred to as "Act, 1956") are self recognized but these aspects, in my view, do not help the petitioner at all.

17. A qualification in Physical Education, if declared equivalent to Physical Education, does not mean that it was declared equivalent to Teaching Certificates like HTC, JTC, BTC or CT. The aforesaid document relied by petitioner itself shows that different Certificates were declared equivalent to different certificates in State of U.P. like, HTC, JTC, BTC or CT, and, Physical Education is different than the Teaching Certificate. Further, this Court is not examining genuineness of B.P.Ed. Degree of petitioner granted by Amrawati University. It may be a genuine degree, but question is whether it is equivalent to Teaching qualification required for appointment as Assistant Teacher in Primary School in U.P. This Court finds that nothing has been placed before me to show that B.P.Ed. of Amrawati University of Maharashtra was ever declared equivalent to aforesaid Teaching certificates required for appointment as Assistant Teacher in Primary Schools in State of U.P. Hence, I have no hesitation in holding that petitioner did not possess requisite qualification merely for the reason that he possessed B.P.Ed. Degree from Amrawati University.

18. Appointment of a person who does not possess requisite qualification prescribed under Statute is void ab-initio. It is illegal since inception. It does not confer any right upon such person to hold the post.

19. If there is a provision in the statute which empowers the authorities to relax qualification prescribed in the statute and authority exercising such power, make appointment, or, depending upon the language of statute, if appointing authority has made appointment in anticipation of relaxation of qualification prescribed in the rules where power of relaxation is vested elsewhere and ultimately such relaxation is granted, position may be different but when statute does not talk of any such relaxation and there is no such power, yet, if an appointment is made in violation of rules or statute prescribing a particular qualification for appointment to a particular post, such appointment would be a nullity.

20. In Pramod Kumar (supra) Court has clearly said in para 16 and 18 of the judgement as under:

"16. The qualifications for holding a post have been laid down under a statute. Any appointment in violation thereof would be a nullity."

"18. If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Only an irregularity can be." (emphasis added)

21. Earlier also a similar controversy came up for consideration in Mohd. Sartaj and another Vs. State of U.P. and others, 2006(2) SCC 315 and in paragraphs 11, 19 and 21 of the judgement, Court held as under:

"11. ... Thus under the Rules, the basic qualification for the post of Assistant Teacher, apart from the educational qualification, was the training qualification of the Basic Teacher's Certificate or Hindustani Teacher's Certificate or Junior Teacher's Certificate or Certificate of Teaching or equivalent training course recognized by the State Government. It is an admitted position by both the parties that these qualifications are required for appointment to the post of Assistant Teacher. It is also not the case of the appellants that the academic qualifications were amended at the time of their appointment. Thus, admittedly on the date of appointment, the appellants did not hold the training qualification to be appointed to the post of Assistant Teachers as prescribed under Rule 8."

"19. In the present case, the appellants' case fall within the exception laid down in S.L. Kapoor's case (supra) and other supporting cases, as admittedly, the appellants were not qualified and they did not possess the B.T.C. or Hindustani Teacher's Certificate or Junior Teacher's Certificate or Certificate of Teaching or certificate of any other training course recognized by the State Government as equivalent thereto at the time of their initial appointment. In view of the basic lack of qualifications, they could not have been appointed nor their appointment could have been continued. Hence the appellants did not hold any right over the post and therefore no hearing was required before the cancellation of their services."

"21. 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." (emphasis added)

22. Learned counsel for petitioner then contended that similar view taken by this Court in Committee of Management Vs. State of U.P. (2009) 1 UPLBEC 381 has been considered by Supreme Court in appeal and it observed that teachers working be not disturbed.

23. We find that in the above case, Teachers possessed qualification of B.Ed. It was not found equivalent to teaching qualification required under Rules. Therefore, judgment of learned Single Judge was set aside and appeal of Committee of Management was allowed and it was declared that appointment of petitioners was a nullity. In appeal, preferred before Supreme Court, i.e., Special Leave to Appeal (C) No. 14907 of 2009 decided on 14.07.2017, Supreme Court passed following order:

"Heard learned counsel for the parties.

Having regard to the fact that the petitioners have been in service for a long period, we are of the view that their appointments ought not be disturbed only on the ground of alleged lack of qualification which is contested by the petitioners.

Accordingly, the special leave petitions are disposed of by directing that the services of the petitioners be not disturbed on the above grounds.

Pending applications(s), if any, shall also stand disposed of."

24. Court did not find anything wrong in the judgment of this Court but exercising its powers under Constitution and giving due weight to the fact that petitioners in those cases were working for long period and also contested the issue whether they possessed requisite qualification, it passed an order that their appointments be not disturbed on the ground of lack of qualification which was contested by petitioners and appeal is disposed of. Judgment of this Court has not been set aside.

25. Be that as it may, so far as this Court is concerned, when it is found that a person lacks requisite qualification prescribed under the Rules, and Rules, specifically prohibit appointment of a person, who does not possess requisite qualification, this Court cannot decide a matter in the teeth of Rules and contrary to Rules and cannot allow a person to continue despite otherwise provided in the Rules. This Court is under an obligation of upholding Rule of law and not to be governed by its own whims and caprices.

26. Since in the case in hand petitioner does not possess requisite qualification prescribed under Rules, 1978, in view of Rule 5 of Rules, 1978, there is a clear embargo on such an appointment and that being so, DBEO has rightly held petitioner's appointment to be illegal and I find no error therein so as to exercise my extraordinary jurisdiction under Article 226 in favour of petitioner.

27. The writ petition lacks merits. Dismissed.

Dt. 03.08.2018

PS