Jagannath Singh vs State Of U.P. And 3 Others
2018 Latest Caselaw 3455 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40                                                          AFR
 

 
Case :- SPECIAL APPEAL No. - 1093 of 2018
 

 
Appellant :- Jagannath Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Indal Singh,Shri Ashok Khare
 
Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh,Pankaj Kumar Gupta
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Ajit Kumar,J.

Delivered by Hon'ble Ajit Kumar,J.

This intra court appeal is directed against the judgment and order dated 05.10.2018 passed in Writ A. No. 27410 of 2004 whereunder the learned single judge has rejected the claim of the petitioner qua his appointment as head master in the institution namely Junior High School Hunespur Baudia, Azamgarh being run and managed by the fourth respondent.

Briefly stated the facts are that the petitioner applied against advertisement published by the fourth respondent for the post of head master in the institution. The selection committee was convened and the petitioner faced the selection committee and was adjudged to the best candidate and accordingly was selected. The papers were forwarded to the District Basic Education Officer Azamgarh for necessary approval in respect of the selection made of the petitioner and the District Basic Education Officer vide order dated 23.08.2003 accorded the approval to the selection of the petitioner. As a sequal to the same, the appointment letter was issued to him on 10.09.2003 by the forth respondent while the petitioner submitted his joining in pursuance of the appointment letter, some complaint was made by a teacher of the institution to the authorities that the petitioner did not possess Basic training qualification for appointment to the post of Head Master. While the complainant not only made a complaint but also filed a writ petition before this Court bearing No 20690 of 2002 seeking promotion against the vacancy on which the petitioner had been appointed. The said writ petition was rendered infractuous in view of the order passed in another writ petition No.3173 of 2004 filed by the same Ram Chander Singh directing the concerned respondents to look into the grievances of that petitioner. Thereafter the present petitioner/appellant was not being paid salary and so filed a writ petition being No.20182 of 2004 before this Court which was disposed of vide order dated 24.4.2004 with a direction to the District Basic Education Officer to consider the claim of the petitioner including his educational qualification which was also being questioned by the said Ram Chander Singh. In the backdrop of the above direction issued by this Court, a fact finding inquiry was conducted by the District Basic Education Officer and after giving full opportunity of hearing to all the parties concerned it was concluded that the petitioner/appellant did not possess the requisite qualification for being appointed as Head Master in a recognized junior high school under the 1978 Rules.

Having considered thus, by the order dated 27.06.2004, the District Basic Education Officer also recalled his earlier order of the approval granted to the selection of the petitioner/appellant dated 23.08.2003. This order came to be challenged in the writ petition No.27410 of 2004 out which the present appeal arises. While continuance of the petitioner was protected by the learned single judge in its order dated 28.07.2004 and the question of payment of salary and the direction in that regard was deferred to be considered on the next date. However, thereafter no further order was passed regarding payment of salary to the petitioner/appellant. The petitioner continued under the interim order of this Court in the writ petition.

The learned single judge fully agreed with the fact finding report of the District Basic Education Officer that the petitioner being possessed of B. P. Ed. Qualification was not eligible to be considered for the post of Head Master under the 1978 Rules and having not found any merit in the claim of the petitioner the writ petition was accordingly dismissed and finding of fact has come to be returned that the petitioner was not having requisite certificate of training course as per rules. The learned Single Judge has relied upon a judgment in the case of Mohammad Sartaj and Another Vs. State of U.P. And others, reported in 2006 (2 ) SCC 315 wherein the Apex Court has held that the Moallim-e-urdu of Jamia Milia Aligarh would not be certificate equivalent to B.T.C in the year 1994. Therefore, the petitioner in that case was held to have not possessed of the requisite qualification as required under Rule 8 of 1981 Rules. The appointments of the appellants accordingly were held de-hors the rules. Counsel for the appellant-petitioner has argued that the petitioner had specifically acquired the qualification by getting B.T.C. Certificate subsequently and further from the year 2008, B.Ed. has been included as one of the requisite qualifications and the petitioner having continued in service under the interim direction of this Court, now on date of judgment of his case by the learned single judge, he was possessed of the requisite qualification.

We do not find any merit in the submissions advanced by the learned counsel for the petitioner/appellant. It is a fact admitted to the petitioner appellant himself that he was not having B.T.C. Certificate which according to the Rule 4 of the 1978 Rules it is one of the qualifications in terms of certificate which a candidate must possess.

Merely because the petitioner was selected and thereafter his selection was approved would not render his appointment valid which is otherwise invalid for want of necessary qualification.

In the case of P.M. Latha and Another v. State of Kerala, 2003 (3) SCC 541, the apex court while considering the similar issue held that merely because the candidate possessed of the higher qualification than the qualification under the statute, would not entitle him to be selected for appointment. In that case, the court was considering the appointment of the appellant who was not possessed of B.T.C. Certificate as required under Rule 8 of U.P. Basic Education Teacher (Service Rules) 1981 and was having a B.Ed. Degree. In paragraph 10 and 13 the apex court held as under.

Para 10 and 13 of the juddgment (supra) read as under:

"10. We find absolutely no force in the argument advanced by therespondents that B.Ed. qualification is a higher qualification than TTC and therefore, the B.Ed. candidates should be held to be eligible to compete for the post. On behalf of appellants, it is pointed out before us that Trained Teachers Certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed. degree, the training imparted

is to teach students of classes above primary. B.Ed. Degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for post

of primary teachers as only TTC and not B.Ed. Whether B.Ed. Qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates, for the present vacancies advertised, as eligible.

13.Equity and law are twin brothers and law should be applied and

interpreted equitably but equity cannot over-ride written or settled law. The division bench forgot that in extending relief on equity to B.Ed. Candidates who were unqualified and yet allowed to compete and seek appointments contrary to the terms of the advertisement, it is not redressing the injustice caused to the appellants who were TTC candidates and would have secured a

better position in the Rank List to get appointment against the available vacancies, had B.Ed. candidates been excluded from the selections. The impugned judgment of the division bench is both illegal, inequitable and patently unjust. The TTC candidates before us as appellants have been wrongly deprived of due chance of selection and appointment. The impugned judgment of the division bench, therefore, deserves to be set aside and of the learned single judge restored. "

Further a Division Bench of this Court in the case of Snjay Kumar Tyagi v. State of U.P. And others 2005 (1) AWC 824 has repelled the argument that LT and B.Ed being higher qualification better than that of BTC, the candidates possessing such qualification would not be disentitled to selection and appointment herein in this case, the Court was considering the Rule 4(1) of the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978, with which we are concerned in the present case. Vide Rule 4(1) minimum qualification of post of Assistant Teacher of recognized Junior High School has been given. Rule 4(1) prior to its amendment in the year 2008 read as under: 4(1)

"4. Minimum Qualification.--(1) The minimum qualifications 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 a teacher's training course recognised by the State Government or the 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 recognized 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."

Vide para 16, 17 and 18 relevant this court held thus :-

"16. It cannot be disputed that the Teacher's Training imparted to

teachers for B.Ed. course equips them for teaching higher classes whereas the Basic Teaching Certificate (hereinafter referred to as 'B.T.C.') is given to teachers for teaching small children and the two cannot be compared with, as has-been clearly observed by the Supreme Court in the case of Yogesh Kumar and Ors. v. Government of NCT Delhi and Ors., 2003 (3) AWC 1823 (SC) ; 2003 (2) SCCD 812 : (2003) 3 SCC 548. The duration of courses of

B.T.C. and L.T./B.Ed. are entirely different and have been devised keeping in view the stages through which the students pass. In the case of B.T.C. The method of Training Course is devised so as to meet the requirement of teaching at a formative stage for a student who enters the School. Thus, it is evident that the training qualification for teaching small children is B.T.C. while the training qualification for teaching children in High Schools and Intermediate Colleges is B.Ed. or L.T.

17. We should, therefore, interpret Rule 4 (1) of the 1978 Rules keeping in mind the observations made by us above and if we do so then there can be no manner of doubt that the Teacher's, Training Course referred to in the said Rule should be confined to such Training Course which are imparted to teach small children only. This is the reason why the Legislature has specifically referred to four such Training Courses which are specifically

confined to specialised training for imparting education to small children and if we interpret it in such a manner then the question whether the four Certificates referred to in Rule 4 (1) of the 1978 Rules are exhaustive or illustrative may not assume much significance since even if it is held that they are merely illustrative then too we are of the opinion that only such other certificates can be taken into consideration which relate to specialised Training for imparting education to small children. The B.Ed./L.T./B.P.Ed./C.P. Ed. or D.P. Ed. Certificates cannot, therefore, be taken into consideration.

18. The Legislature was conscious of the distinction between Training Course Certificates received by candidates to teach small children and the certificates received to teach higher classes as is apparent from the fact that those who had obtained the B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. Certificates were required to complete a special B.T.C. Training Course under the Government order dated 9.1.1998. If such trained candidates having B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. Certificates were eligible to be

considered for appointment as Assistant Teachers or Headmasters of a Junior High School, there would have been no necessity at all for them to have undergone the special B.T.C. Training Course. This again emphasises what we had observed earlier that to teach small children a Specialised Training Course is necessary. In this respect reference may also be made to the provisions of Rule 6 of 1981 Rules referred to above wherein also while providing for the age limit of the candidates it has been clearly provided that there shall be no upper age limit in case of B.Ed./ L.T./B.P.Ed./C.P.Ed. or

D.P. Ed. Certificates candidates who had completed the Special B.T.C. Training course in the year 1999. The Legislature was, therefore, clearly conscious of the fact that for such candidates a special B.T.C. course was required to be undertaken before they could be considered eligible for appointment."

In view of the above exposition of law, we find ourselves in full agreement with the judgment of the learned Single Judge.

The appeal lacks merit and is, accordingly, dismissed with no order as to cost.

Order Date :- 31.10.2018

saqlain