Shaik Abdul vs The State Of Telangana
2023 Latest Caselaw 2424 Tel

        THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                                 AND
        THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR


    + WRIT PETITION Nos.1315, 1495, 1741, 4277, 4283,
    5276, 29791, 31250 of 2018; 7878 and 9164 of 2019


%      Date: 15.09.2023


#      Venugopal Charry,
       and others.
                                                        ... Petitioners
                                 v.


$      The State of Telangana,
       Rep. by its Special Chief Secretary to Government,
       the School Education (General) Department,
       Secretariat, Hyderabad,
       and others.


                                                     ... Respondents

! Counsel for the petitioners: Mr. G.Vidya Sagar, learned Senior Counsel, Representing Ms. K.Udaya Sri

Ms. B.Rachna Reddy, learned Senior Counsel

Mr. Jakkula Sridhar,

Mr. S.Rahul Reddy,

Mr.G.V.L.Murthy

and

Ms. P.Sumalatha

^ Counsel for the respondents : Mr. M.V.Rama Rao, learned Special Government Pleader attached to the office of learned Additional Advocate General for the State.

Mr.M.Mehboob Ali, learned Standing Counsel for the National Council for Teacher Education.

Mr. Manoj Kumar Mishra, learned counsel representing Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India.

< GIST:

    HEAD NOTE:

? CASES REFERRED:

1.   (2018) 12 SCC 595
2.   2022 SCC OnLine Bom 3381
3.   (2019) 2 SCC 404

THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE AND THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR

WRIT PETITION Nos.1315, 1495, 1741, 4277, 4283, 5276, 29791, 31250 of 2018; 7878 and 9164 of 2019

COMMON ORDER: (Per the Hon'ble the Chief Justice Alok Aradhe)

The petitioners in this batch of writ petitions have

assailed the validity of Rule 4(I)(G)(i) and Rule 4(III)(B)(i)

notified vide G.O.Ms.No.25, dated 10.10.2017, namely the

Telangana State Direct Recruitment for the posts of

Teachers Rules, 2017 (hereinafter referred to as, "the 2017

Rules").

2. The petitioners seek a declaration that the

qualification of Hindi Vidwan/Madhyama/Visharada is

equivalent to the degree conferred by the University Grants

Commission (UGC) recognised under the University Grants

Commission Act, 1956, for the posts of Language Pandit

(Hindi)/School Assistant (Hindi). The petitioners have also

challenged the validity of the order dated 23.12.2017

passed by the State Government by which the qualification

of Hindi Vidwan/Madhyama/Visharada held by the

petitioners has not been held to be equivalent to the degree

conferred by the UGC.

3. In order to appreciate the grievance of the petitioners,

relevant facts need mention which are stated infra.

4. The petitioners have acquired the qualification of

Hindi Vidwan/Madhyama/Visharada from the recognized

institution from the Government of India for the purposes

of employment as Language Pandit (Hindi)/School

Assistant (Hindi). The qualification held by the petitioners

was treated to be equivalent qualification to the degree

conferred by the UGC under the rules notified vide

G.O.Ms.No.4, dated 09.01.2012, namely the Andhra

Pradesh Direct Recruitment for the posts of Teachers

(Scheme of Selection) Rules, 2012 (hereinafter referred to

as, "the 2012 Rules").

5. The National Council for Teacher Education Act,

1993 (hereinafter referred to as, "the NCTE Act"), is an Act

to provide for establishment of National Council for

Teacher Education (NCTE) with a view to achieve planned

and coordinated development of the teacher education

system throughout the country, the regulation and proper

maintenance of norms and standards in the teacher

education system. The NCTE Act has also been enacted

with the object of prescribing qualifications of school

teachers and for the matters connected therewith. Section

12 of the NCTE Act deals with functions of the NCTE.

Section 12(d) empowers the NCTE to lay down the

guidelines in respect of minimum qualifications for a

person to be employed as a teacher in the recognized

institutions. Section 12A of the NCTE Act deals with power

of the NCTE to determine minimum standards of education

of school teachers. Section 32 of the NCTE Act deals with

powers of the NCTE to make regulations. Section 32(2)(dd)

empowers the NCTE to make regulations for qualification of

teachers under Section 12A.

6. In exercise of powers conferred under Clause (dd) of

Section 32(2) read with Section 12A of the NCTE Act, the

NCTE has made the regulations which are known as

National Counsel for Teacher Education (Determination of

Minimum Qualifications for Persons to be recruited as

Education Teachers and Physical Education Teachers in

Pre-primary, Primary, Upper Primary, Secondary, Senior

Secondary or Intermediate Schools or Colleges)

Regulations, 2014 (hereinafter referred to as, "the 2014

Regulations"). Regulation 4 provides for qualifications for

recruitment. Regulation 4(a) provides that the

qualifications for recruitment of teachers in any recognized

schools imparting Pre-primary, Primary, Upper Primary,

Secondary, Senior Secondary or Intermediate Schools or

Colleges imparting senior secondary education shall be as

given in the First and Second Schedules annexed to the

Regulations. The relevant extract of the First Schedule is

reproduced below for the facility of reference:

First Schedule {See Sub-regulation (2) of Regulation (4)}

The National Council for Teacher Education (Determination of Minimum Qualifications for Persons to be recruited as Education Teachers in Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014.

                 LEVEL                    MINIMUM ACADEMIC AND
                                       PROFESSIONAL QUALIFICATIONS
     ...                      ...

4. Secondary/High School (a) Graduate/Post Graduate (For Classes IX-X) from recognized University

with at least 50% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed) from National Counsel for Teacher Education recognized institution.

Or

(b) Graduate/Post Graduate from recognized University with at least 45% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 notified on 10.12.2007}

Or

4 years degree of B.A.Ed./ B.Sc.Ed. from any National Council for Teacher Education recognized institution.

5. Senior Secondary/ (a) Post Graduate with at Intermediate (For Classes least 50% marks (or its

XI-XII) equivalent) from recognized University and Bachelor of Education (B.Ed) from National Council for Teacher Education recognized institution.

Or

(b) Post Graduate with at least 45% marks (or its equivalent) from recognized University and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 notified on 10.12.2007.

Or

Post Graduate with at least 50% marks (or its equivalent) from recognized University and B.A.Ed./ B.Sc.Ed. from any NCTE recognized institution.

7. Thus, if Regulation 4(a) and (b) of the 2014

Regulations is read in conjunction with the First Schedule,

it is evident that the qualification which has been

prescribed for recruitment to the posts of teacher is

Graduate/Post Graduate from any recognized University

with at least 50% marks either in Graduation or Post

Graduation. From a close scrutiny of the First Schedule

entry made at serial Nos.4 and 5, it is evident that a person

holding an equivalent qualification of Graduation/Post

Graduation from a recognized university with at least 50%

marks either in Graduation or Post Graduation is also

entitled for recruitment as teacher. However, the State

Government has issued G.O.Ms.No.25, dated 10.10.2007,

by which the 2017 Rules had been notified. Rule 4(I)(G)(i)

and Rule 4(III)(B)(i) read as under:

4(I)(G).School Assistant (Hindi):-

(i). Must possess Graduation with Hindi as one of the Optional/Graduation in Literature in Hindi/Bachelor's Degree in Oriental Language (BOL) in Hindi/Post Graduation Degree in Hindi from a University recognized by UGC with 50% (in case of SC/ST/BC/Differently abled candidates, the minimum marks shall be 45%) and pass in Bachelor of Education (B.Ed.) course with

Hindi as a Methodology subject or Language Pandit Training in Hindi or Hindi Shikshan Parangat from any institution recognised by NCTE.

4(III)(B). Language Pandit (Hindi):-

(i) Must possess Graduation with Hindi as one of the Optional/Graduation in Literature in Hindi/Bachelor's Degree in Oriental Language (BOL) in Hindi/Post Graduation Degree in Hindi from a University recognised by UGC with 50% (in case of SC/ST/BC/Differently abled candidates, the minimum marks shall be 45%) and pass in Bachelor of Education (B.Ed.) course with Hindi as a Methodology subject or Language Pandit Training in Hindi or Hindi Shikshan Parangat from any institution recognised by NCTE.

8. Thus, the aforesaid Rules do not treat the

qualification of Hindi Vidwan/Madhyama/Visharada as

equivalent to the degree conferred by the UGC.

9. In the aforesaid factual background, the petitioners

have filed the present writ petitions seeking the relief as

stated supra.

10. Mr. G.Vidya Sagar, learned Senior Counsel for the

petitioners submits that qualification for recruitment to the

posts of teacher have been prescribed by the NCTE under

the 2014 Regulations. The State Government, therefore, is

under an obligation to act as per the notification and

cannot give effect to any contrary rule. It is further

submitted that while enacting the 2017 Rules, the State

Government has acted in contravention of the regulations

prescribed by the NCTE inasmuch as the equivalent degree

of the petitioners of Hindi Vidwan/Madhyama/Visharada

has not been treated as equivalent to the degree conferred

by the UGC. It is further contended that the rule enacted

by the State Government is in respect of a field which has

already been occupied by a regulation framed under the

central enactment, namely the NCTE Act. Therefore, the

regulations framed by the NCTE shall prevail in the matter

of educational institutions over the 2017 Rules.

11. Learned counsel for the petitioners in the other writ

petitions have adopted the submissions made by

Mr. G.Vidya Sagar, learned Senior Counsel for the

petitioners, and they contended that the order dated

23.12.2017 passed by the State Government holding that

the qualification held by the petitioners is not recognized

by the UGC and since no equivalence is provided in the

rules, therefore, their qualification cannot be treated at par

with the degree conferred by the UGC, is patently arbitrary

and suffers from the vice of non-application of mind.

Learned counsel for the petitioners in the other writ

petitions have pointed out to the counter affidavit filed on

behalf of the UGC wherein UGC has taken a stand that it is

for the State Government to decide the question of

equivalence and the UGC cannot decide the same. It is,

therefore, submitted that the impugned order dated

23.12.2017 is liable to be quashed. In support of the

aforesaid submission, learned Senior Counsel has placed

reliance on a decision of the Hon'ble Supreme Court in

State of Uttar Pradesh v. Shiv Kumar Pathak 1.

12. On the other hand, learned Special Government

Pleader has submitted that Sections 12 and 12A of the

NCTE Act only empower the NCTE to lay down the

minimum standard of education and the NCTE has

prescribed the minimum standards of education.

Therefore, it is open for the State Government to prescribe

(2018) 12 SCC 595

the higher qualification. It is also submitted that by

enacting the 2017 Rules, the Government has not

prescribed any qualification which is at variance with the

qualification prescribed by the NCTE. It is also pointed out

that the validity of the 2017 Rules was assailed before a

Division Bench of this Court and the Division Bench by a

common order dated 18.12.2017 passed in W.P.Nos.40590

and 40936 of 2017 has disposed of the writ petitions

directing the respondents therein to examine whether or

not the qualification secured by the petitioners therein was

equivalent to a Bachelor's Degree in Hindi. Learned

Special Government Pleader has also placed reliance on the

decision of the High Court of Bombay in Abhijit

Madhavrao Patil v. State of Maharashtra 2.

13. We have considered the rival submissions made on

both sides and perused the record.

14. In Zahoor Ahmad Rather v. Imtiyaz Ahmad 3, it was

held by the Hon'ble Supreme Court that prescription of a

particular qualification to the concerned post is solely a

2022 SCC OnLine Bom 3381

(2019) 2 SCC 404

matter of recruitment policy and it is not the duty nor the

function of the judiciary to delve upon the validity of the

prescribed qualifications. In paragraphs 26 and 27 of the

said decision, it was held as under:

26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] in the subsequent decision in Anita [State of Punjab v. Anita, (2015) 2 SCC 170 : (2015) 1 SCC (L&S) 329] . The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on the provisions of Rule 10(a)(ii). 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. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] 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 present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] 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 [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench.

27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must be understood in the context of a specific statutory rule under which the holding of a

higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned.

15. In the light of the aforesaid legal position, we may

advert to the validity of the order dated 23.12.2017 passed

by the Government of Telangana. The relevant extract of

the order dated 23.12.2017 reads as under:

4. This makes it very clear that it should be Graduation from a recognized University or its equivalent which means that whichever qualification is claimed, it should be equivalent to Graduation from a recognized University. In this case, Hindi Vidwan Course/Examination conducted by Hindi Prachara Sabha, Hyderabad or the Hindi Sahitya Samelan, Allahabad or the Dakshin Bharat Hindi Prachar Sabha, Madras, if these are recognized Universities by the UGC, wherein this Course is treated by UGC as Graduation, then only the petitioners can be treated as eligible. In G.O.Ms.No.25, School Education (General) Department, dt.10.10.2017, it is clearly mentioned that the applicants must possess Graduation in Hindi from a University recognized by the UGC. Thus, if the petitioners' qualification of Hindi Vidwan is from a recognized University of the UGC as 'Graduation' and the course has the recognition of the UGC, then only

they will become eligible as per G.O.Ms.No.25, School Education (General) Department, dt.10.10.2017, to apply in the Teachers' Recruitment, 2017.

16. Thus, from a perusal of the aforesaid order, it is

evident that the aforesaid order has been passed on twin

grounds. Firstly, that the qualification acquired by the

petitioners is not recognized by the UGC and secondly, that

the 2017 Rules do not provide that the qualification of

Hindi Vidwan/Madhyama/Visharada held by the

petitioners is equivalent to the degree conferred by the

UGC.

17. In the counter affidavit filed by the respondents, at

paragraph 10(3) it is stated as under:

The University Grants Commission has clarified that the equivalency of a qualification is to be determined by the employer but not by the UGC. Therefore, it is for the employer to determine the equivalency in qualification for a post for the purpose of employment.

18. It is evident that the UGC itself has clarified that the

equivalency of a qualification cannot be decided by the

UGC, but the same has to be adjudicated by the State

Government. Therefore, the State Government cannot take

a view against the petitioners on the ground that the UGC

has not recognized the qualification held by the petitioners.

It is pertinent to note that in the 2012 Rules, the

qualification held by the petitioners was treated as

equivalent to the degree conferred by the UGC. However,

in the 2017 Rules, the aforesaid requirement has been

deleted. There is no explanation on record as to why the

aforesaid qualification has been deleted. By not treating

the qualification of Hindi Vidwan/Madhyama/Visharada as

equivalent to the degree conferred by the UGC, the State

Government has not prescribed any higher qualification.

19. The issue of equivalence has to be considered by the

State Government. The impugned order dated 23.12.2017

suffers from the vice of non-application of mind and has

been passed in a casual and callous manner without even

adverting to the stand taken by the UGC. The impugned

order dated 23.12.2017 therefore cannot be sustained in

the eye of law. It is accordingly set aside.

20. The inevitable result is that the matter has to be

remitted to the State Government for deciding the issue of

equivalence of the qualification of Hindi Vidwan/

Madhyama/Visharada held by the petitioners. The State

Government is required to decide whether the Hindi

Vidwan/Madhyama/Visharada is equivalent to the degree

conferred by the UGC.

21. It is also pertinent to mention here that the 2017

Rules are no longer in force and by G.O.Ms.No.25, dated

05.09.2023, new Rules, namely the Telangana State Direct

Recruitment for the posts of Teachers (Scheme of Selection)

Rules, 2023, have come into force. The order dated

23.12.2017 has been set aside and issue of equivalence

has to be decided by the State Government. We, therefore,

are not inclined to examine the validity of the 2017 Rules.

The issue with regard to the validity of the 2017 Rules as

well as the 2023 Rules is kept open to be agitated in

appropriate proceedings. The State Government is directed

to decide the issue of equivalence of Hindi

Vidwan/Madhyama/Visharada to the degree conferred by

the UGC on or before 15.11.2023 by a speaking order.

22. Accordingly, with the aforesaid directions, the writ

petitions are disposed of. Needless to state that in case the

qualification held by the petitioners is found to be

equivalent to the degree conferred by the UGC, the case of

the petitioners for appointment to the post of teachers,

subject to vacancy, shall be considered.

Miscellaneous applications pending, if any, shall

stand closed. However, there shall be no order as to costs.

______________________________________ ALOK ARADHE, CJ

______________________________________ N.V.SHRAVAN KUMAR, J

15.09.2023

Note: LR copy to be marked.

B/o.

vs