Mrs. Neeta Vaishnav vs School Education Dept.
2023 Latest Caselaw 6249 MP

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IN THE        HIGH COURT OF MADHYA PRADESH
                    AT I N D O R E
                             BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                     &
     HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA



                   WRIT APPEAL No. 1502 of 2019

BETWEEN:-
MRS. NEETA VAISHNAV W/O SHRI PRASAD VAISHNAV, AGED ABOUT 47
YEARS, OCCUPATION: TEACHER 19/1, SIKH MOHALLA, NEAR
KOTHARI MARKET, INDORE (MADHYA PRADESH)
                                                    .....APPELLANT
(SHRI L. C. PATNE, LEARNED COUNSEL FOR THE APPELLANT)

AND
   SCHOOL EDUCATION DEPT. PRINCIPAL SECRETARY VALLABH
1.
   BHAWAN, MANTRALAYA, BHOPAL (MADHYA PRADESH)
   THE COMMISSIONER OF PUBLIC INSTRUCTIONS GOVERNMENT
2. OF MADHAYA PRADESH GAUTAM NAGAR, NEAR CHETAK BRIDGE,
   BHOPAL (MADHYA PRADESH)
   THE DISTRICT EDUCATION OFFICER INDORE DISTT. INDORE
3.
   (MADHYA PRADESH)
                                                 .....RESPONDENTS

(SHRI BHASKAR AGRAWAL,           LEARNED     COUNSEL        FOR   THE
RESPONDENTS/STATE)

          Reserved on            :             17.02.2023
          Pronounced on          :             18.04.2023


      This appeal having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:
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                                  ORDER

Heard finally with the consent of both the parties.

2. In this intra-court appeal under Section 2 (1) of the M.P. Uchcha Nyayalaya (Khand Nyaayapeeth Ko Appeal) Adhiniyam 2005, the appellant assails the final order dated 21.08.2019 passed in W.P. No.8000/2019, whereby the writ petition filed by the appellant was dismissed.

3. The brief facts of the case are that the appellant was appointed under the sports quota in terms of policy dated 26.08.1994 issued by the General Administration Department for the post of Upper Division Teacher. Vide order dated 20.09.1994, in the regular pay-scale of Rs.1400-2640, the appellant joined her duties as Upper Division Teacher on 05.10.1994 and right since then she has been discharging her duties sincerely, diligently and to best of her ability. The appellant sought permission to obtain B.Ed. Degree at her own expenses which was accorded to her on 29.02.1996 and no objection certificate was issued in favour of the appellant. The appellant appeared for B.Ed. Examination in the year 1996-97 and obtained B.Ed. Degree on 09.08.1997. The respondent No.1/department had issued administrative instructions from time to time first being the dated 21.09.1974, which provided for grant of two advance increments to the teacher obtaining B.Ed. Degree after entering into service at their own expenses. Thereafter, another circular dated 24.12.1998 was issued following the judgment rendered by the Apex Court in SLP No.3893 dated 22.07.1996, which also provided for grant of two advance increments to those teachers who had obtained B.Ed. Degree at their own expenses.

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4. Since the respondents did not grant her two advance increments, she had preferred a writ petition i.e. W.P. No.8000/2019 which came to be finally decided on 21.08.2019. Learned Single Judge dismissed the writ petition by virtue of the amendment in Madhya Pradesh Class-III Educational Service (Non-Collegiate Branch) Recruitment Promotion and Condition of Service Rules, 1973, which came into effect w.e.f. 16.03.1993 which provided for B.Ed. Degree as one of the essential qualifications prescribed for the post of Upper Division Teacher. Meaning thereby, at the time the appellant was appointed, the qualification of B.Ed. Degree was a mandatory qualification. Even in the appointment order, it was made clear that the appellant is required to obtain requisite qualification within a period of two years. The appellant acquired the requisite qualification on 09.08.1997. The learned Single Judge held that where the Recruitment Rules provides for a qualification, the appellant cannot claim two increments in absence of the qualification and dismissed the writ petition.

5. Learned counsel for the appellant submitted that the learned Single Judge has erred in dismissing the writ petition. Inasmuch as the circular dated 21.07.1974 as also circular dated 24.12.1998 issued by the respondent No.1 and following the dictum in the case of State of M.P. and others Vs. Badrinarayan, 1996 (10) SCC, 271, the appellant is entitled for grant of two advance increments on account of obtaining B.Ed. Degree at her own expenses while in service.

6. Learned counsel for the appellant relied upon the judgment delivered in the case of State of M.P. and others Vs. Smt. Nisharani Agrawal and others, reported in 2005 (2) MPJR SN 18, in which it has been held that the teachers prior to entering into service passed B.Ed. Examination at their

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expenses are entitled to receive two advance increments in light of the circular 1974 unless same is not superseded. Learned counsel further submitted that the circulars of 1974 and 1998 have not been superseded till date, therefore, benefit ought to have been extended to the appellant. The order passed by the learned Single Judge deserves to be quashed on this ground alone.

7. On the other hand, learned counsel for the State opposed the prayer and submitted that the learned Single Judge has rightly passed the order which requires no interference, hence, the present writ appeal deserves to be dismissed.

8. Heard the learned counsel for the parties and perused the record.

9. The learned Single Judge has rightly relied on the notification dated 16.06.1993 by which the Recruitment Rules were amended which provided that B.Ed. Degree was one of the essential qualifications prescribed for the post of Upper Division Teacher. Admittedly, the appellant did not possess B.Ed. Degree at the time of recruitment, however, the respondents had granted relaxation for a period of two years to obtain the requisite qualification. The appellant was appointed on 20.09.1994 and admittedly, she did not possess B.Ed. Degree at the time of her appointment. Hence, the learned Single Judge has not committed any error apparent on the face of the order so as to interfere. The appeal being devoid of merits and substance is hereby dismissed. No orders as to costs.

                            (S. A. DHARMADHIKARI)              (PRAKASH CHANDRA GUPTA )
                                   JUDGE                              JUDGE
              N.R.

NAREND Digitally signed
         by NARENDRA
RA       KUMAR
KUMAR RAIPURIA
         Date: 2023.04.18
RAIPURIA 19:40:55 +05'30'