Karnataka High Court

Mohammedi Begum vs The State And Ors on 26 July, 2024

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                                                        WP No. 201011 of 2018




                               IN THE HIGH COURT OF KARNATAKA,

                                       KALABURAGI BENCH

                             DATED THIS THE 26TH DAY OF JULY, 2024

                                              BEFORE
                           THE HON'BLE MR. JUSTICE UMESH M ADIGA

                           WRIT PETITION NO. 201011 OF 2018 (S-RES)


                      BETWEEN:


                      MOHAMMEDI BEGUM W/O MOHD. HAJI
                      AGE: 36 YEARS, OCC: WORKING AS URDU PANDIT,
                      IN PRINCES FATIMA ESIN GIRLS HIGH SCHOOL,
                      RAICHUR,
                      R/O. RAICHUR.

                                                                    ...PETITIONER
                      (BY SRI BASAVARAJ KAREDDY, ADVOCATE)

                      AND:
Digitally signed by
KHAJAAMEEN L          1.   THE STATE OF KARNATAKA
MALAGHAN
Location: HIGH             BY ITS SECRETARY,
COURT OF                   PRIMARY AND SECONDARY EDUCATION,
KARNATAKA
                           M.S. BUILDING, BANGALORE-560001.

                      2.   THE COMMISSIONER OF PUBLIC INSTRUCTION
                           KALABURAGI-585104.

                      3.   THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTION
                           RAICHUR-584101.

                      4.   NEW EDUCATION SOCIETY
                           TIPPU SULTAN ROAD,
                           RAICHUR BY ITS SECRETARY-584101.
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                                       WP No. 201011 of 2018




5.   THE BLOCK EDUCATION OFFICER
     RAICHUR-584101

                                                ...RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP ALONG WITH;
 SRI MALHAR RAO, AAG FOR R1 TO R3 AND R5;
 SRI S. B. PATIL, ADVOCATE FOR R4)
     THIS WRIT IS PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO I) ISSUE A
WRIT OF CERTIORARI THEREBY QUASHING THE IMPUGNED
ORDER NO.ED/43/SEW/2014, DATED 22.12.2017 PASSED BY
THE 1ST RESPONDENT AS AT ANNEXURE-R TO THE WRIT
PETITION. I) (A) ISSUE WRIT IN THE NATURE OF CERTIORARI
QUASHING    THE   KARNATAKA         EDUCATION     DEPARTMENT
SERVICE    (DEPARTMENT       OF     PUBLIC      INSTRUCTIONS)
RECRUITMENT    RULES-1967,    AMENDED      RULES-2016,   VIDE
NOTIFICATION      DATED           29-09-2016,      IN    FILE
NO.ED:291/LBP/2015, BENGALURU, VIDE ANNEXURE-T, TO
THE EXTENT OF PRESCRIBING A P.G. CANDIDATE BECOMING
ELIGIBLE IF HE/SHE WERE TO HAVE A DEGREE B.ED. IN
EDUCATION IN CONCERNED SUBJECT AS TEACHING METHOD.
(II) ISSUE A WRIT OF MANDAMUS, THEREBY DIRECTING THE
RESPONDENTS TO APPROVE THE PETITIONER'S APPOINTMENT
TO THE POST OF ASSISTANT TEACHER IN URDU I.E, URDU
PANDIT IN THE 4TH RESPONDENT'S HIGH SCHOOL IN THE
LIGHT OF THE LAW LAID DOWN BY THE HON'BLE APEX COURT
VIDE ANNEXURE-S AND ETC.,
      THIS PETITION HAVING BEEN HEARD AND RESERVED ON
05.07.2024, AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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                                           WP No. 201011 of 2018




CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA


                          ORAL ORDER

(PER: HON'BLE MR. JUSTICE UMESH M ADIGA)

This petition is filed under Articles 226 and 227 of the

Constitution of India seeking for the following reliefs:-

"i) Issue a writ of certiorari thereby quashing the impugned order No. Ed / 43 / SEW / 2014 dated 22.12.2017 passed by the 1st respondent as at Annexure-R to the writ petition.

i (a) Issue writ in the nature of certiorari quashing the Karnataka Education Department Service (Department of Public Instructions) Recruitment Rules-1967, Amended Rules-2016, vide notification dated 29-09-2016, in file No. Ed : 291 / LBP / 2015, Bengaluru, vide Annexure-T to the extent of prescribing a P.G. candidate becoming eligible if he / she were to have a degree B.Ed. in education in concerned subject as teaching method.

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(ii) Issue a writ of mandamus, thereby directing the respondents to approve the petitioner's appointment to the post of assistant teacher in Urdu i.e, Urdu Pandit in the 4th respondent's high school in the light of the law laid down by the Hon'ble Apex Court vide Annexure-S."

02. It is the case of the petitioner that the

respondent No.4 had issued notification of recruitment, in

the news paper on 10.10.2012 for filling up of one post of

Urdu Pandit along with recruitment to the other posts,

which are not relevant to the present petition. In response

to the Notification, the petitioner had applied for the said

post. She was selected by the respondent No.4 for the said

post. The respondent No.4 submitted a letter to the

Education Department for approving her appointment as

Urdu Pandit in the said school. The Deputy Director of

Public Instructions by its letter dated 15.06.2013

(Annexure-G) sent a letter to the Commissioner of Public

Instructions, seeking certain clarification. The

Commissioner in turn wrote a letter to Principal Secretary

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to the Education (Primary and High school Education)

Department dated 30.09.2013 (Annexure-M) seeking for

the clarification, quoting the relevant provision of

Karnataka Education Act (for short 'KEA').

03. The Principal Secretary Education Department

(Primary and High School) has written a letter to the

Additional Commissioner of Public Instructions dated

31.12.2013 (Annexure-P) reiterating the provision of KEA

and informed that the petitioner was not qualified and

eligible for appointment to the said post.

04. Being aggrieved by the said letter dated

31.12.2013, the petitioner had filed W.P.No.103713/2013

(S-RES), challenging the letter dated 13.12.2013 (S-RES)

and sought for writ of mandamus directing the

respondents to approve her appointment.

05. The Coordinate Bench of this Court heard the

W.P.No.103713/2013 (S-RES) and directed the

respondents in that case to consider the representation of

the petitioner after hearing her by giving sufficient

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opportunity to her and thereafter suitable orders shall be

passed. The Government of Karnataka, Education

Department, considered the directions of this Court in the

above said writ petition and passed impugned order dated

22.12.2017 stating that she was not qualified for the said

post, as per the Recruitment Rules, 1967.

06. The petitioner has challenged the said order

dated 22.12.2017 and also the relevant provision of

Recruitment Rules, 1967, in the present writ petition.

07. I have heard the arguments and perused the

materials available on record.

08. The admitted facts are that the petitioner had

educational qualification of Degree of B.A., with optional

subject of History, Economics and political Science. B.Ed in

English and History. And M.A. in Urdu from Osmania

University, Hyderabad. She had not studied B.A. Degree,

with optional subject Urdu. And She had not studied B.Ed.

with Urdu as teaching methods.

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09. As per the Recruitment Rules, 1967 the

educational qualification required for appointing the

candidate to the post of language assistant / Urdu Pandit

is as under:-

For Language Assistants :-

(a) Must be holder of a Bachelor degree in Arts with the concerned language as one of the optional subjects, namely Kannada, English, Urdu, Hindi Marathi, Telugu, Tami and Sanskrit or 4 years language Pandit course in Kannada, Vidwan in Sanskrit and Urdu Mushi examination conducted in the Karnataka Secondary Education Board.

AND

(b) Must be holder of a degree in education.

Provided in case of Bachelor Degree holder who has not studied the concerned language as optional subject at the degree level, but shall be considered eligible if the concerned candidate-

(a) Is holder of a post graduate degree in the concerned language.

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(b) For the language Assistant in English, the candidate who holds a post graduate Diploma Certificate in English language from Regional Institute of English, South India shall also be considered eligible for appointment.

AND

Must be holder of degree in Education with the concerned subject or subjects as teaching methods.

(d) In case of language Assistant in English, candidate who have not studied English as a teaching method at B.Ed. Degree level but is a holder of Post Graduate Diploma Certificate in English language from Regional Institute of English, South India, shall also be considered eligible for appointment.

Provided further that in case of Language Assistants in Hindi, candidate-

(i) Who has passed Rashtrabhasha Praveen and Shiksha Shatak (with Hindi and one other language as teaching method) courses

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conducted by the Dakshina Bharat Hindi Prachar Sabha and Pre-University Course with Kannada or any other regional language as medium of instructions at P.U.C. level; OR

(ii) Who possesses any other qualification as may be declared equivalent by the State Government.

May also be considered for selection.

10. The educational qualification required for the

appointment to the post of language assistant / Urdu

Pandit, is referred above. Admittedly The petitioner has no

such educational qualification as on the date of the

notification. It is not in dispute that in view of the said

reasons her appointment was not approved by the

Education Department of Government of Karnataka.

11. This is second round of litigation by the

petitioner. As stated above, she had filed

W.P.No.103713/2013 (S-RES) and that was disposed of on

02.03.2016, wherein the similar contention was taken. The

Coordinate Bench of this Court, though came to conclusion

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that the "This Court has neither expertise nor the

equipment to decide and hold that the holder of B.A.,

B.Ed, M.A. in Urdu and M.Ed is equivalent to the holder of

B.A. with Urdu as one of the optional subjects and to the

holder of B.Ed with Urdu method. It is for the concerned or

the competent authority to work out the equivalence, if

any."

12. Therefore, the Court did not quash the letter of

Principal Secretary Educational Department (Primary and

High School) dated 31.12.2013. The liberty was given to

the Government to consider the representation of the

petitioner. Thereafter, the impugned order was passed.

13. Holding of higher educational qualification than

the required qualification for recruiting to particular post is

sufficient or not, cannot be decided by the court. As

observed by the Coordinate Bench of this Court in the

W.P.No.1013713/2013, the Court cannot consider whether

holding of a Master Degree in Urdu is equilant to holding of

B.A., degree with optional subject of Urdu and B.Ed with

Urdu teaching method to appoint for the post of Urdu

Pandit.

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14. It is pertinent to note that the petitioner has

applied to the post of Urdu Pandit to teach high school.

The work of a teacher is to educate students who are

future of this Country. Even for preparing a syllabus to

teach in the classes of Primary or High School,

Government would appoint committee of experts and

taking their opinion form a syllabus to the classes to be

studied by the students. Therefore, even for prescribing

certain educational qualification of a teacher, teaching in

the primary school or high school, the government would

have taken expert opinion and thereafter, drafted a KEA

Rules. This Court is not equipped with relevant materials

to consider the same.

15. The petitioner is not seeking an appointment to

the post of clerk, such as second division assistant or first

division assistant in government offices or school, wherein

the specific educational qualification is not required, even

holding of a degree / PUC or SSLC, may be sufficient

depending upon the Recruitment Rules, but that is not

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case with the Education Department. Looking to the

qualification stated above prima-facie, it does not appear

that there is no illegality or ultra-virus any law or

provisions of the constitution.

16. The learned Additional Advocate General

submits that in a B.Ed course if a candidate studied in the

concerned language, teaching methods, then the mode

and manner in which he / she has to teach to the students

of primary school or high school would be given to such

persons in the college. By virtue of the said knowledge and

education, they can teach the students properly and make

them to understand with the concerned subject. In the

Master Degree they do not have such an opportunity of

teaching methods. Therefore, even though Master Degree

is a higher qualification, if we look into point of view of the

students, the said qualification is not at all relevant or

required or could help in any way for teaching of the

students in the primary or high school. Therefore, merely

the petitioner studied in the Master Degree with Urdu as

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one of the subject, is not sufficient to teach the student

studying in the high school or primary school level. The

submission of learned Additional Advocate General is

tenable.

17. When the candidate as on the date of

appointment has no prescribed educational qualification,

the Court cannot direct the Government to appoint such

person to the concerned post. If that is done, it would be

injustice to the candidates having similar education

qualification. If the said fact is stated in the notification

they could have also applied for the said post and they did

not apply to it, since they had no required qualification. It

will deprive an opportunity for such candidates.

18. Moreover, the Hon'ble Apex Court in the case of

Zahoor Ahmad Rather and Others vs. Sheikh Imtiyaz

Ahmed and others, reported in (2019) 2 SCC 404, it is

held as under:-

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"We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K. in the subsequent decision in Anita, The decision in Jyoti K.K. turned on the provisions of Rule 10 (a) (i). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti K.K. turned on a specific statutory rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a rule in the

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present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench of the High Court was justified in reversing the judgment of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision of the Division Bench."

19. Therefore, even though the petitioner had

higher qualification of M.A. in Urdu, but her candidature

cannot be considered for the post of Urdu Pandit.

Therefore, the submission of learned counsel for the

petitioner that the petitioner is more qualified and having

more experience to teach to the students who are

studying in the primary school and high school, cannot be

considered, as equivalent to the education qualification

required for the said post.

20. The learned counsel for the petitioner would

submit that in the previous writ petition, the petitioner has

not challenged the provision of Recruitment Rules, 1967.

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In view of the said Rules prevailing, the Coordinate Bench

of this Court could not quash the Government Order. In

the present case, she has sought for the relief of quashing

the provision of KEA Act, is unconstitutional and

discriminating in the nature. The relief sought regarding

the equivalent in education qualification can be

considered. He relies upon the judgment of the Hon'ble

Apex Court in Civil Appeal No.1612/2018 (arising out

of SLP (Civil) No.11404/2013) in the case of The

State of Karnataka and others vs. Shankar Baburao

Kangralkar and another.

21. The learned Additional Advocate General

vehemently contended that there is no illegality or

discrimination in the Recruitment Rules 1967. What are

qualification required are specifically mentioned in the KEA

Act. It is decided by the Government on the basis of

requirement to a particular post. A person having a

qualification, to teach, degree or post graduate students,

cannot be considered for appointment to the post of

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teacher in the primary school. He may not have the

training or technic to teach students studying in the

primary school, because of various reasons. Under such

circumstances, it cannot be held that it is ultra-virus law or

Constitution.

22. The learned Additional Advocate General would

further submit that, in this case, the candidate ought to

have had B.A. Degree with Urdu as one of optional the

subject and must have studied B.Ed in Urdu teaching

method, then only such candidate will be appointed to the

post of Urdu Pandit. He further submits that the above

referred judgment of the Hon'ble Apex Court, in the case

of Shankar Kangralkar, is more or less helpful to the

State, than the petitioner. In the above said judgment, it

is held that the Court cannot consider pre-requisite of

education qualification for recruiting to a particular post

and hold that such qualification is not required or

educational qualification are equivalent to the said

qualification prescribed in the recruitment notification.

Therefore, he prayed for rejection of arguments of the

learned counsel for the petitioner.

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23. There is some weight in the submission of the

learned Additional Advocate General.

24. The prescribed educational qualification to any

post is a policy matter of the Government. It appears that

there must be some study in this regard. Thereafter,

certain educational qualifications are prescribed, especially

in the case of recruitment to the post of teaching staff in

educational field. There must be detailed study in the

matter and after obtaining the opinion of the expert, the

Government must have prescribed certain qualification to

the post of teacher either in primary school, high school,

college and post graduation.

25. Coming to the present case, the educational

qualification prescribed for the language assistants is that

he / she must be holder of a Bachelor Degree in Arts with

the concerned language as one of the optional subject i.e.,

Urdu. He must be holder of a Degree in Education in

concerned subject, in this case would be as a teaching

method and the provision is given in case of person not

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having degree in the concerned subject, then he / her

education must be post graduate in the concerned subject.

However, there is no such concession is given to the B.Ed.

course. It must be for the reason that, in the B.Ed. course

techniques of the teaching will be provided to persons

studying the said course. Therefore, it cannot be held to

be illegal.

26. In this case, she had not studied Urdu in the

Bachelor Degree as well as in B.Ed. course. Hence, she

had no required educational qualification to consider her

name for appointment to the post of Urdu Pandit, as on

the date of said notification of recruitment. Hence, she

was not eligible to consider her name for appointment.

27. Under these circumstances, the provisions of

Recruitment Rules 1967, is not ultra-virus constitution.

Hence, the said rule cannot be quashed on the ground of

discrimination.

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28. The learned counsel for the petitioner submits

that during the pendency of this petition, she had obtained

B.Ed Degree in Urdu and acquired prescribed qualification.

Therefore, her case may be considered on that point also.

The said submission is not acceptable. The prescribed

qualification must be as on the date of notification and not

later on. On this point the Hon'ble Apex Court in the case

of Ashok Kumar Sharma and Others vs. Chander

Shekhar and Another, reported in (1997) 4 SCC 18,

held as under:-

"Where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued / published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to

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it. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, an impermissible justification. The minority opinion in the 1993 decision in Ashok Kumar Sharma case that the 33 respondents, who were not qualified on the date of submission of the application but had acquired the requisite qualification before the date of interview, could not have been allowed to appear for interview, was right."

29. The notification issued by the respondent No.4

is for post of Teacher in Girls High School. The qualification

of Teacher for the Primary School, High School, Pre-

University and Degree are different, based on the

requirement of a student to learn the subjects prescribed

to the said classes. Merely, a person who had highly

educated, having a Post Graduation or even acquired a

Doctorate, cannot be considered to appoint to the post of

Teacher in a Primary School. Merely, the qualification is

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not sufficient, he must know how to teach the students