Andhra Pradesh High Court - Amravati
K. Naresh, vs State Of Andhra Pradesh, on 12 November, 2021
1
* HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ WRIT PETITION Nos.10474 and 10034 of 2021
% 12th November, 2021
W.P.No.10474 of 2021
# M.R.L. Sankara Rao and 14 others
... Petitioners..
AND
$ The State of Andhra Pradesh and 28
others.
... Respondents.
! Counsel for the Petitioners : Sri Santhapur Satyanarayana Rao
^ Counsel for the 1st & 2nd respondents : Sri P.Sudhakar Reddy
Addl. Advocate General
^ Counsel for the 3rd to 20th respondents : Sri A.Rajendra Babu
^ Counsel for the 21st to 29th respondents: Sri Bobbili Srinivas
< Gist:
> Head Note:
? Cases referred:
1. (2018) 12 SCC 595
2. AIR 1967 SC 1910
3. (2001) 3 SCC 110
4. (2008) 4 SCC 171
5. (2017) 1 SCC 322
6. (2013) 4 SCC 540
7. (2019) 2 SCC 404
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION No.10474 and 10034 of 2021
COMMON ORDER:
In both these Writ Petitions the challenge is to
G.O.Ms.No.70 School Education (Exams) Department, dated
05.11.2018. The prayer in these Writ Petitions is to set aside
the G.O.Ms.No.70, dated 05.11.2018, which is issued 10 days
after the initial G.O.Ms.No.67 School Education (Exams)
Department, dated 26.10.2018.
This Court for the sake of convenience, at this stage itself
is reproducing the first page of the G.O.Ms.No.70, dated
05.11.2018, hereunder to highlight the area of challenge:
"GOVERNMENT OFANDHRA PRADESH
ABSTRACT
The Andhra Pradesh Teacher Recruitment Test(TRT)
for the posts of School Assistants(SAs), Language Pandits
(LPS), Physical Education Teachers(PETS), Music Teachers,
Craft Teachers and Art& Drawing Teachers and Teacher
Eligibility Test cum Teacher Recruitment Test (TETcumTRT)
for the posts of Secondary Grade Teachers(SGTS) Scheme of
Selection Rules, 2018- Amendment- Orders - Issued.
--------------------------------------------------------------------------
SCHOOL EDUCATION (EXAMS) DEPARTMENT
G.O.Ms.No. 70 Dated: 05-11-2018
Read the following:
1. G. O. Ms. No. 67, School Education (Exams)
Department, dt:26.10.2018.
2. From the Commissioner of School Education,
Andhra Pradesh Lr.Rc.No.ESE02-20021/6/2018-
RECTMT-CSE, Dt: 27.10.2018.
*****
ORDER:-
In the Government Order 1" read above, The Andhra
Pradesh Teacher Recruitment Test(TRT) for the posts of
School Assistants(SAs), Language Pandits (LPs), Physical
Education Teachers(PETS), Music Teachers, Craft Teachers
and Art& Drawing Teachers and Teacher Eligibility Test cum
Teacher Recruitment Test (TET-cum-TRT) for the posts of
Secondary Grade Teachers (SGTs)-Scheme of Selection
Rules, 2018 were issued.
2. In the circumstances stated by the Commissioner of
School Education, AP, Ibrahimpatnam in the letter 2nd read
above, Government after careful examination of the matter,
Government hereby issue the following amendments to the
aforesaid Rules issued in G. O. Ms. No. 67, School Education
(Exams) Department, dt: 26.10.2018.
AMENDMENTS
1. Para 4(2)(i)(f) Para shall be substituted as follows.
Existing Para Substituted with
Must possess a Bachelor's Must possess a Bachelor's
Degree with Telugu as the Degree with Telugu as the
main subject or one of the main subject or one of the
three equal optional three equal optional subjects
subjects or Bachelor's or Bachelor's Degree in
Degree in Oriental Oriental Language in Telugu
Language in Telugu (B.O.L) or its equivalent or a
(B.O.L) or its equivalent Post Graduate Degree in
and B.Ed with Telugu as Telugu and B.Ed with Telugu
methodology Subject or as methodology Subject or
Telugu Pandit Training or Telugu Pandit Training or its
its equivalent. equivalent.
(Highlighted portion is
the area of dispute)
This Court has heard Sri S.Satyanarayana Rao, learned
counsel for the petitioner in W.P.No.10474 of 2021 and Sri
P.V.Krishnaiah in W.P.No.10034 of 2021, learned Additional
Advocate General Sri P.Sudhakar Reddy for the respondent-
State and Sri A. Rajendra Babu, learned counsel for the
implead petitioners/respondents 3 to 20 in W.P.No.10474 of
2021 and for implead petitioners/respondents 3 to 18 in
W.P.No.10034 of 2021; Sri Bobbili Srinivas, learned counsel
for the implead petitioners / respondents 21 to 29 in
W.P.No.10474 of 2021 and for the implead
petitioners/respondents 19 to 24 in W.P.No.10034 of 2021.
Both the learned counsel for petitioners very vehemently
argued with great passion that the initial G.O.Ms.No.67, dated
26.10.2018 is issued under the powers delegated under Article
309 of the Constitution of India and that the same cannot be
amended by way of executive instructions. It is also argued
that if the State wishes to prescribe additional qualifications it
had to amend the rules that were prevailing as on the date of
the notification. It is argued that these are statutory rules
which can only be changed by way of amendment only and new
qualifications cannot be introduced by way of Executive
instructions. This is the substratum of the challenge. In
addition, it is also argued that the rules of the game cannot be
changed after the game has begun. Both the learned counsel
submits that new qualifications cannot be prescribed or
introduced for selection of candidates after the notification is
issued. Last but not the least it is also argued that
G.O.Ms.No.70 was the subject matter of the challenge in
W.P.No.9118; 9164; 11961; 17367 and 17864 of 2020, which
was ultimately allowed on 25.03.2021. The earlier order
passed in O.A.No.2516 of 2018 was also brought to the notice
of this Court. It is, therefore, submitted that in view of this
legal position of law the petitioners are entitled to the relief.
Therefore, the prayer is made in both these writ petitions for
declaring the action of the respondents in issuing
G.O.Ms.No.70, dated 05.11.2018 as arbitrary, illegal and ultra
vires and to set aside the same. A consequential direction
prayed for is to direct the respondents to complete the selection
process for appointment to the post of School Assistant
(Telugu) and Language Pandit (Telugu).
Sri P.V. Krishnaiah also argues that by prescribing
higher qualifications greater higher competition is introduced
after the Notification has been issued.
In reply to this, the essential argument advanced by the
learned Additional Advocate General is that the State has
ample power to issue a clarificatory or supplementary G.O. He
points out that the G.O. was issued on 05.11.2018 only to fill
up an obvious gap in the regulations. He points out that the
NCTE regulations (which are mandatory and have to be
followed by everyone), prescribed a Post Graduate Degree also
as a qualification. Therefore, in order to bring in uniformity
and to improve the standards of education the State
Government decided to follow the NCTE regulations. It is
submitted that the subsequent G.O. dated 05.11.2018 is only
issued to fill up the gap / omission. He submits that this is
only supplementing the existing regulations and it does not
amount to changing the rules of the game. It is also submitted
that the rules of a game have not been changed at all. Further
submissions are also made that these are matters which are
best left to the experts and the experts have decided to fix the
educational qualifications. Therefore, a submission is made
that the Courts should lightly interfere in this matter.
On behalf of the implead petitioners Sri A.Rajendra Babu
and others have argued in line with supporting the case
advanced by the learned Additional Advocate General. It is
pointed out that merely by including Post Graduates and
permitting Post Graduate Degree holders to participate in the
selection, the petitioners are not deprived of any rights and that
they could participate in the process. It is also argued that the
implead petitioners-present respondents participated in the
process by virtue of the interim orders granted in O.A.No.2516
of 2018 and that, therefore, the procedure should be allowed
to go to its logical conclusion. There is a review petition
pending i.e., I.A.No.1 of 2020 in W.P.No.19757 of 2020 and as
per the orders passed in W.P.No.9118 of 2020 and Batch no
further orders can be granted as the learned single Judge has
already hold that since I.A.No.1 of 2020 in W.P.No.19757 of
2020 is pending no directions can be issued. Learned counsel
submits that all these facts are suppressed in the present Writ
Petitions and that on the ground of suppression of facts the
Writ Petition can be dismissed.
COURT:
As mentioned earlier the first Notification was issued on
26.10.2018. The second Notification, which is the subject
matter of the challenge, is issued on 05.11.2018. In this
second Notification, Post Graduate Degree in Telugu is
prescribed as an additional qualification. The stand taken by
the petitioners is that this is only possible by amending the
rules framed under Article 309 of the Constitution of India.
While the respondent-State urges that it has the power to issue
the supplemental notifications to supplement an obvious error.
This Court notices that on 19.11.2014, G.O.Ms.No.38
was issued for the purpose of framing the rules for the
A.P.Teacher Eligibility Test. In this G.O.Ms.No.38, dated
19.11.2014 it is clearly specified that the norms and conditions
of the eligibility criteria provided by NCTE are being followed.
For a School Assistant in Telugu a Post Graduate Degree in
Telugu is prescribed. Similarly, for the Language Pandit
(Telugu) also Post Graduate Degree in Telugu is one of the
qualifications. There are the two tests for which the petitioners
are agitating. This is the recruitment G.O. prior to the
impugned GOs under challenge. This Court also notices that
G.O.Ms.No.67, dated 26.10.2018 clearly states that the rules
are framed under Article 309 of the Constitution of India and
The Right of Children to Free and Compulsory Education Act,
2009 (in short "the Education Act") by duly incorporating the
norms and conditions of eligibility prescribed by the NCTE.
This fact is clearly asserted in paragraph 19 of the counter
affidavit filed by the respondent-State. This aspect of
incorporating the Post Graduate Degree in Telugu in line with
the NCTE regulations etc., is not denied by way of filing any
rejoinder etc. Similarly, on 04.05.2018, G.O.Ms.No.25 was
issued. In this case also for the language teachers, Post-
Graduation in the language concerned and Language Pandit
Certificate etc., was prescribed. This G.O. was also issued
pursuant to the NCTE Notification dated 23.08.2010 and the
NCTE guidelines. Learned Additional Advocate General also
relied upon the judgment reported in State of Uttar Pradesh
and Others v Shiv Kumar Pathak and Others1 to argue that
the State Government was under the obligation to act as per
the Notifications of the NCTE and not to prescribe anything
contrary. It is also argued that the qualifications prescribed by
the NCTE are binding.
This Court also notices that the NCTE has been formed
under the Central enactment called NCTE Act. The power to
fix the minimum standards of education for school teachers is
granted expressly under Section 12 (A) of the NCTE Act. These
statutory provisions viz., Section 12 which deals with the
functions of the NCTE and Section 12 (a) of the NCTE Act were
considered by the Hon'ble Supreme Court of India in the
judgment referred to above. Section 23 of the Education Act
was also considered by the Hon'ble Supreme Court of India in
the judgment referred to above. Thereafter, the Hon'ble
Supreme Court of India held that the NCTE acting as an
academic authority under Section 23 of the Education Act as
well as Section 12 and 12 (A) of the NCTE Act was empowered
to issue the Notifications. It is held that these Notifications are
(2018) 12 SCC 595
binding on the State. The Council's power to prescribe the
educational qualification for Teachers (Section 12) and to
maintain the standards (Section 12-A) is very clear. The pan-
India application of the Act and its purpose are clear from the
aim and objects also (Act 73 of 1993).
In view of the fact that the Notifications are issued under
Central enactment and the power of the authority constituted
under the Central enactment has been upheld by the Hon'ble
Supreme Court of India, this Court is of the opinion that the
respondent-State was also bound by law to follow the same.
The NCTE and Education Acts are both Central enactments
and as such they would prevail over the State made laws.
There is no "State" law holding this field also. Even for earlier
selections the Post Graduate Degree was prescribed as is
apparent.
The next question that arises was even if the Central
enactment and the Notifications prescribed thereunder will
prevail, did the State have the power to amend or to change the
existing Notification? It has been asserted right from the
beginning by the State that they have the power to issue this
subsequent Notification in order to supplement the missing
educational qualifications. Learned Additional Advocate
General argued that the candidates with Post Graduate Degree
should also be allowed to participate in view of the guidelines
issued by the NCTE. It is his submission that the subsequent
G.O. dated 05.11.2018 was issued to substitute and
supplement the gap which occurred in the original Notification.
He points out that the 14 clarifications are essentially
"substitutions". Relying upon the literal language in
G.O.Ms.No.70, dated 15.11.2018, learned Additional Advocate
General points out that the words used in Para 4(2)(i)(f) shall
be "substituted" as follows:
"Must possess a Bachelor's Degree with Telugu as the
main subject or one of the three equal optional subjects or
Bachelor's Degree in Oriental Language in Telugu (B.O.L)
or its equivalent or a Post Graduate Degree in Telugu and
B.Ed., with Telugu as methodology Subject or Telugu
Pandit Training or its equivalent."
It is his contention that this is merely supplementing or
adding to the existing qualifications and not supplanting the
same or replacing the same.
Relying upon Sant Ram Sharma v State of Rajasthan
and Others 2 in para-7 learned Additional Advocate General
argued that while the Government cannot amend or supersede
statutory rules by administrative instructions if the rules are
silent on any particular point, the Government can fill up the
gaps and supplement the rules. These rules / instructions
however should not be inconsistent with the rules already
framed. He also relies upon O.P.Lather and Others v Satish
Kumar Kakkar and Others 3 . He essentially relies upon
AIR 1967 SC 1910
(2001) 3 SCC 110
paragraphs 8 and 9 of this judgment. Relying upon this
judgment learned Additional Advocate General submits that a
clarification issued by the Government cannot be considered
as an amendment. He also points out that in this decision the
Hon'ble Supreme Court of India reiterates the earlier words of
caution in paragraph 14 by holding that it is wise and safe for
the Courts to leave the decision on academic matters to
experts. He also relies upon Dhanjay Malik and Others v
State of Uttaranchal and Others4. He points out, in this
judgment the Hon'ble Supreme Court of India reiterated the
legal position that if there is a gap and a silence on any
particular point the Government can issue instructions which
are not inconsistent with the rules already framed. In addition,
learned Additional Advocate General also argues that the
Hon'ble Supreme Court of India commented on the conduct of
the parties, who participated in the examination process and
are then challenging the same. Learned Additional Advocate
General relies on this finding that the people who participated
in the examination cannot challenge the process. In the
opinion of this Court the submissions of the learned Additional
Advocate General are relevant and carry weight. The case law
also supports his contentions. There is a discernable gap in
the first notification, which had to be clarified to bring it in line
with NCTE regulation. The last judgment that this Court finds
of much relevance to the issue which is cited by the learned
(2008) 4 SCC 171
Additional Advocate General is the judgment in V.Lavanya
and Others v State of Tamil Nadu and Others5. In this case
also if the facts are examined the NCTE had laid down certain
minimum questions and the first TET examination was
conducted on 12.07.2012. The supplementary TET was
conducted on 14.10.2012. The third TET was conducted on
17.08.2013 and 18.08.2013. After this third TET was
conducted, the relaxation of 5%marks for passing the
examination was given on 06.04.2014. This was challenged
before the Hon'ble Supreme Court of India. The Hon'ble
Supreme Court of India ultimately held that the Government
has not changed the rules of selection.
As far as the present applicants are concerned also the
marks and the academic qualifications still remain the same.
The age bracket remains the same. All other parameters and
the selection process remains the same. In a similar situation
the Hon'ble Supreme Court of India clearly held as follows in
paragraph 34 "we entirely agree with the view taken by the
Madras Bench that by merely allowing more persons to compete
the petitioners cannot contend that their accrued rights had been
taken away". This court also finds that the rights of the
petitioners have not been taken away by allowing Post
Graduate Degree holders to apply. The contentions of the
Additional Advocate General are thus upheld on this point also.
(2017) 1 SCC 322
One other question that remains to be answered is
whether the rules of the game have actually been changed in
this case? As per the original notification the applications have
to be submitted between 01.11.2018 to 15.11.2018, the last
date for uploading the applications is 16.11.2018. Long before
this last date for uploading the application was reached the
supplementary GO No.70, dated 05.11.2018 was issued.
These dates are evident from a reading of the Notification itself.
Examinations were scheduled to be held between 06.12.2018
to 02.01.2019. The School Assistant examination in Telugu
was scheduled to held on 11.12.2018 and the language Pandit
Examination for Telugu was scheduled to be held on
27.12.2018. Long prior to that itself on 05.11.2018 the second
G.O. was issued. The game has not really "begun" in this case
for this submission to be accepted. In additional the findings
in V.Lavanya and others case (5 supra) support the
respondents' submissions. The issue about "rules of the game"
being immutable / unchangeable is also pending before the
Hon'ble Supreme Court of India (Tej Prakash Pathak and
Others v Rajasthan High Court and others6). The matter
was referred to a Larger Bench.
It is also clearly stated in the subsequent G.O. dated
05.11.2018 that the existing paragraphs shall be "substituted"
with the new paragraph and ultimately in paragraph 15 of the
(2013) 4 SCC 540
G.O., dated 05.11.2018 is clarified that these orders shall come
into force with effect from the date of issue of the G.O.Ms.No.67
dated 26.10.2018. This Court has to agree that the petitioner's
rights are not trammeled or taken away in any manner. The
educational qualifications remain the same; the age criteria
remains the same; the examination remains the same and the
selection process remains the same. Certain number of
additional candidates with a Post Graduate Degree were
allowed to participate in the examination. This may increase
the competition but beyond that there is no tangible direct loss
to the petitioners nor are their vested rights effected.
The ultimate objective of the NCET and TET examination
of selecting the best teachers for imparting of education in the
school level cannot be lost sight off. If the State wishes to
recruit people with higher qualification it cannot be prevented
from doing so. Therefore, this Court is of the opinion that the
supplementary G.O., has not altered or changed the rules of a
game.
This Court while exercising the power of judicial review
is also concerned with the "decision making process". The
need or necessity to prescribe its educational qualifications is
not a matter of judicial review. Who is best suited for the post?
What is the pool from which the selection is to be made etc.,
are matters for the experts alone. The decision making process
alone is the subject of judicial review. In the case on hand,
this Court does not find proper pleading and proof that the
subsequent introduction of PG Degree is for an ulterior motive
or for a mala fide purpose. The State pleaded clearly that in
order to ensure that the NCTE regulations and standards are
followed the supplementary G.O. was issued. This Court does
not find any reason to suspect the explanation given by the
State. No material is placed by the petitioners to doubt the
reason. In addition, as noticed earlier even in the earlier
Notification issued like G.O.Ms.No.38, dated 19.11.2014 a Post
Graduate Degree is prescribed both for School Assistant and
for Language Pandit.
The conduct of the petitioners also disentitles them in
review. As mentioned earlier the Notification was issued in
November, 2018 and these Writ Petitions are filed in April,
2021 and May, 2021, which is long after the procedure has
been completed. The petitioners, who participated in the
examination process and have applied for the same cannot
question the actions of the recruitment agency, and in
particular the selection criteria.
Sri P.V.Krishnaiah learned counsel for the petitioners in
W.P.No.10034 of 2021 also cited a judgment reported in
Zahoor Ahmad Rather and Others v Sheikh Imtiyaz
Ahmad and Others 7 on the issue of lack of fundamental
qualifications etc. This case, in the opinion of this Court, does
(2019) 2 SCC 404
not apply to the facts and circumstances of this case. In
addition, the submission that candidates with any Degree can
acquire a Post Graduate Degree without doing a Bachelor
Degree in Arts in Telugu is not borne out by the record. The
material available with this Court does not lead to a conclusion
that the M.A. Telugu Degree holders have acquired their
Master Degree without possessing a Degree in Telugu as a
main subject.
Therefore, for all these above mentioned reasons, this
Court is of the opinion that the Writ Petitions have to fail.
Accordingly, both the Writ Petitions are dismissed. There shall
be no order as to costs.
However, no further consequential directions can be
issued in view of the fact that in W.P.No.9118 of 2020 and
Batch a learned single Judge of this Court has held as the
review petitions etc., are pending, no further orders can be
granted.
Consequently, the Miscellaneous Applications pending, if
any, pending shall also stand dismissed.
__________________________
D.V.S.S.SOMAYAJULU, J
Date:12.11.2021.
Ssv
