Narendra Singh vs State Of U.P. And Others
2018 Latest Caselaw 3050 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Case :- WRIT - A No. - 26576 of 2010
 
Petitioner :- Narendra Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- S. B. Singh,Shri Ashok Khare
 
Counsel for Respondent :- C. S. C.,Nafees Ahmad,S.K.Sharma,V.K.Srivastava
 
Hon'ble Mrs. Vijay Lakshmi,J.

1. Heard Sri S.B. Singh for the petitioner and the learned standing counsel for the State respondents.

2. The petitioner has filed this writ petition challenging the order dated 3.4.2010 passed by the District Basic Education officer, District Rampur cancelling his own order dated 28.10.2009 by means of which the appointment of the petitioner as Headmaster had been approved.

3. It is the case of the petitioner that Nirmal Sant Mandal Uccha Prathamik Vidyalaya is a recognised and aided Junior High School. The payment of salary of its teachers and employees is being made under the Payment of Salaries Act, 1978 and the services of its teachers are governed by U.P. Recognised Basic Schools (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules 1978 (hereinafter referred to as the 'Rules' of 1978).

4. In the aforesaid Junior High School, one post of Headmaster and one post of Assistant Teacher fell vacant for which the respondent no.4-Committee of Management asked for permission from the Government. On 31.7.2009, the Government gave permission to respondent no.4 to fill up the vacant post of Headmaster (unreserved) and one post of Assistant Teacher (reserved) in the school as per the Rules of 1978, and the amendment carried out in the said Rules in 2008.

5. In pursuance of the permission advertisement was issued in two newspapers. The petitioner being duly qualified and having B.A. and B.Ed. Degree from Maharshi Dayanand University, Rohtak, Haryana and also having five years teaching experience as Assistant Teacher in Junior High School applied and was selected on the post of Headmaster.

6. The Basic Shiksha Adhikari by his letter dated 28.10.2009 approved the appointment of the petitioner as Headmaster of the Institution and he joined on the said post on 29.10.2009. After about two months of his appointment, he received an order dated 21.12.2009 by which his appointment had been cancelled. The petitioner approached this Court in Writ Petition No. 3157 of 2010. The said writ petition was allowed on 28.1.2010 on the grounds of violation of principles of natural justice. The order impugned was set aside and the matter was remitted by this Court to the Basic Shiksha Adhikari for passing a fresh order.

7. In pursuance of the orders passed by this Court, the Basic Shiksha Adhikari issued a letter on 9.3.2010 directing that the petitioner may appear in his office along with all documentary evidence for hearing. The petitioner appeared before the Basic Shiksha Adhikari and filed all documentary evidence regarding his being duly qualified for appointment, but the Basic Shiksha Adhikari arbitrarily came to the conclusion that the B.Ed. Degree obtained by the petitioner was awarded by Maharshi Dayanand University, Rohtak, Haryana by means of distant education and it did not fall within the parameters of Rule 4(2)(b) of the Rules of 1978.

8. It has been submitted by the learned counsel for the petitioner that before the Basic Shiksha Adhikari, the Division Bench judgment of this Court in Special Appeal No. 1271 of 2007 (Gyanendra Kumar Sharma and 49 Others. Vs. State of U.P. and Others.) 2007 (9) ADJ 247 was placed, wherein this Court had come to a conclusion that B.Ed. degree through correspondence is the same as B.Ed. Degree granted to regular students. The Basic Shiksha Adhikari however did not consider the judgment of the Division Bench at all while passing the impugned order whereby cancelling his own order of approval dated 28.10.2009.

9. Learned counsel for the petitioner submitted that law has been settled by the Supreme Court as well, by dismissing the Special Leave Petition, filed by the State of U.P. against the judgment dated 03.10.2007, rendered in above cited case of Gyanendra Kumar Sharma & 49 others (supra) by its judgment and order dated 18.11.2014 in the SLP (Civil) No. 9968-9969.

10. Learned standing counsel appearing for the Basic Shiksha Adhikari has however opposed the petitioner's submission by saying that the judgment rendered by this Court in Gyanendra Kumar Sharma and 49 others. Vs. State of U.P. & others, was related to eligibility criteria for attending special BTC course being introduced by the State Government for training of B.Ed. candidates to fulfill the requirement of primary teachers in the State. The judgment rendered by the Division Bench of this Court should be confined to the facts of the case. The petitioner had himself admitted in his writ petition that he had obtained B.Ed. Degree in 1994 from Maharshi Dayanand University, Rohtak, Haryana through distant education or through correspondence and under Rule 4(2)(b), the qualification prescribed is of having a regular B.Ed. Degree from a duly recognised institution.

11. I have considered the submissions made by the learned counsel for the petitioner and the learned counsel for the Basic Shiksha Adhikari.

12. The issue involved in this writ petition is with regard to the interpretation given to Rule 4(2)(b) of the Rules of 1978 as amended in 2008. Rule 4(2)(b) prescribes the minimum qualification for appointment on the post of Headmaster of a recognised Junior High school. As per rule a candidate must possess: (a) a Degree from a recognised University or an equivalent examination recognised as such; (b) a teacher training course recognised by the State Government or UGC or Board as follows:- (i) Basic Teaching Certificate (ii) a regular B.Ed. Degree from a duly recognised Institution (iii) Certificate of Teaching (iv) Junior Teaching Certificate (v) Hindustani Teaching Certificate; and (c) five years teaching experience in a recognised school.

13. The B.Ed. Degree issued by Maharshi Dayanand University, Rohtak, Haryana is duly recognised by the UGC by its letter dated 26.4.1994, so the first condition regarding recognition either by the State Government or by the UGC or by the Board is met by the said qualification. The term "a regular B.Ed. Degree" has not been defined under the Rules of 1978.

14. The Division Bench of this Court in Gyanendra Kumar Sharma (supra) was considering the difference between B.Ed. Degree granted through face to face education method and a B.Ed. Degree granted by distance mode of education.

15. The Division Bench considered the observations of the learned Single Judge comparing the two courses. The learned Single Judge had noted that whereas in the face to face method, B.Ed. students have to put in 200 hours in a year, whereas those by distance education have to put in 300 hours in two years. Those who are doing regular B.Ed. course are not employed, whereas those taking distance education are usually employed. The regular B.Ed. course is full time training course, whereas the other is correspondence course. The regular B.Ed. course involves face to face training, whereas the distance education is through print, non print (multi media, audio-video) and self learning material. For admission to B.Ed. by regular method, one has to have 50% marks in graduation, whereas there is no such cut off marks for the correspondence course.

16. The Division Bench referred to NCTE recognition granted to special BTC course proposed by the State Government and its clarification issued on 9.8.2007 saying that no difference had been made regarding B.Ed. face to face, and B.Ed. distance mode, and all B.Eds. were to be eligible for special BTC course.

17. The Division Bench after considering the arguments of both parties, rejected the arguments of the learned standing counsel that only regular students or "Sansthagat Abhyarthi" be permitted. It observed that once both types of courses were recognised by the UGC, and the NCTE, as valid Teachers Training Courses, the Government cannot discriminate between candidates who took training by a face to face method and those who had done their B.Ed. course by a distance education method.

18. It is settled law that a judgment cannot be read out of the context and without reference to the facts of the case in which it was rendered. However, this Court finds that in the aforesaid judgment of Gyanendra Kumar Sharma, the Division Bench has considered the difference between B.Ed. course done through regular institution through classroom training and B.Ed. course done through correspondence method or distance education mode. It has observed that there is no difference between the two as both the degrees have been recognised by the UGC and by the NCTE, therefore it was not open for the State Government to discriminate.

19. The B.Ed. Degree by distance mode of education granted by Maharshi Dayanand University, Rohtak, Haryana to the petitioner has been duly recognised by the UGC. Therefore this Court finds the order passed by the Basic Shiksha Adhikari cancelling the approval of appointment of the petitioner to be arbitrary and against the law settled by this Court.

20. In view of the above, the order impugned is set aside. The petitioner be reinstated forthwith as Headmaster of Nirmal Sant Mandal Uccha Prathamic Vidyalaya. However, since, the petitioner has not worked w.e.f. 3.4.2010 i.e. from the date of order impugned and the institution may have been functioning under a Headmaster who would have been given salary from the public exchequer under the Payment of Salaries Act, 1978, this Court is not directing payment of salary to be made to the petitioner for the aforesaid period. However, he may granted continuity in service for the purpose of pay fixation, selection grade/assured career progression, and also seniority, and his services may be deemed to be uninterrupted for the purpose of calculating qualifying service for pension, gratuity and other retiral benefits.

21. The writ petition is allowed to this extent.

Order Date:-5.10.2018

SB