Ramesh Singh Bhandari vs State Of Uttarakhand And Others
2021 Latest Caselaw 3615 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL
                 Writ Petition (S/S) No. 649 of 2021

Ramesh Singh Bhandari                                   .......... Petitioner


                                    Vs.

State of Uttarakhand and others                     ............ Respondents



                                    With
                Writ Petition (S/S) No. 2288 of 2019

Ranveer Singh Rana and another                          .......... Petitioner


                                    Vs.

State of Uttarakhand and others                     ............ Respondents


Mr. V.B.S. Negi, Senior Advocate assisted by Mr. Ayush Negi, Advocate for the
petitioners.
Ms. Indu Sharma, Brief Holder for the State/respondents.

                               JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Since common questions of law and facts are involved in these two petitions, they are being decided by this common judgment.

2. Petitioners were appointed as Assistant Teachers in the Government Primary Schools and subsequently, two of them were promoted as Assistant Teachers (CT Grade). The petitioners are eligible for their absorption on the post of Assistant Teacher (LT Grade). When the petitioners were not absorbed, some of them, filed writ petitions in this Court, pursuant to which, the matter was considered again by the authorities and by the impugned order, the benefit of the Rules, by which, they could have been absorbed, were denied to them on the ground that they are not eligible for their absorption. In the impugned order dated 24.06.2019, reference has been made to Rule 16(3) read with Rule 8(6) of the Uttaranchal Subordinate

Education (Trained Graduate Cadre) Service Rules, 2006 (for short, "2006 Rules"). Petitioners seek directions, so that candidature of the petitioners may be considered for absorption on the post of Assistant Teachers, LT Grade (Physical Education) from the date, juniors to the petitioners have been promoted. Petitioners have also sought quashing of the impugned order denying the benefit to them.

3. The State has filed the counter affidavit. In nutshell, what the State has stated is that the petitioners are not eligible for their absorption on the post of Assistant Teachers (LT Grade). In their supplementary counter affidavit, the State has further referred to Rule 8 (6) and Rule 16 (3) of the 2006 Rules. It is the stand of the State that for the appointment to the post of Assistant Teachers, Physical Education (LT Grade), a candidate, must possess a B.P.Ed. Degree, which is essential. The relaxation as provided under Rule 16 Sub-Rule (3) of the 2006 Rules is applicable to the other teachers in other subjects, but it is not available to the physical education teachers.

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

5. Learned counsel for the petitioners would submit that without any reasons, the petitioners have been denied absorption, to which, they are entitled in view of Rule 16 Sub-Rule (3) of the 2006 Rules.

6. Learned Senior Counsel would submit that, in fact, the CT Cadre has been declared as a dying cadre and all the teachers in CT Grade were to be absorbed in LT Grade as Assistant Teachers. Since, the requisite qualification for appointment to the post of Assistant Teachers (CT Grade) in Physical Education was BA and C.P.Ed., in order to remove any anomaly that might occur in the absorption of such teachers to the post of Assistant Teachers (LT Grade), a provision has been made in Rule 16 Sub-Rule (3) of the 2006 Rules, requiring such candidates to acquire requisite educational

qualification within three years with consequences laid down therein. It is also argued that, in fact, in the Kumaon Mandal, Uttarakhand, this benefit has already been given to the similarly situated teachers, but the same has been denied to the petitioners. Hence, the writ petition.

7. On the other hand, learned State counsel would give the two-fold arguments. They are as hereunder:-

(i) Petitioners are not eligible for their appointment/absorption to the post of Assistant Teachers (LT Grade) in view of Rule 8(6) read with Rule 16(3) of the 2006 Rules. In this regard, learned State counsel would submit that the benefit of 16(3) is available to the subjects like Hindi, English, Sanskrit, Urdu, Social Studies, Mathematics, Science, Home Science, Commerce, but it is not available to the Physical Education and;

(ii) The 2006 Rules have not been challenged by the petitioners.

Hence, the petition deserves to be dismissed.

8. Rule 8 of the 2006 Rules provides the educational qualification for various posts and at serial number 6, the educational qualification for Assistant Master/Assistant Mistress (Physical Education) has been provided. According to it, the educational qualification is:-

"(1) Bachelor's degree from a University established by law in India.

(2) B.P.Ed. or a degree defined as equivalent to B.P.Ed. by National Council of Teacher Education from a University established by law in India."

9. Rule 16 of the 2006 Rules provides for the procedure for recruitment by adjustments/promotions and this recruitment by adjustments, according to Rule 16(1) is to be made by appointing Head Teachers Primary Schools, Assistant Teachers Junior High Schools and Assistant Teachers, Government Modern School, working under Government Elementary Education.

10. Rule 16 Sub-Rule (3) speaks as hereunder:-

"16(3) The candidates recruited by promotion, in case they are not trained graduates, shall have to obtain prescribed certificate from the institution constituted by the State Government or graduate degree in education, or diploma from a university or an institute recognized by NCTE. If such certificate, degree or diploma is not obtained within three years after the year of appointment, next increment shall be allowed only when they obtain such certificate degree or diploma."

11. As to whether the State is discriminating between two set of teachers, one in the Garhwal Mandal and second in the Kumaon Mandal or as to whether the State is reading Rule 16(3) beyond what is written in it, this is the short controversy to be resolved.

12. In para 15 of the Writ Petition (S/S) No.2288 of 2019, the petitioner has categorically stated that in the Kumaon Mandal, the teachers, who are having C.P.Ed. diploma were absorbed in the LT Grade by order dated 01.06.2009. Surprisingly, in para 13 of the counter affidavit, filed by the State, this averment has not been denied. What State has said is that the contents of para 15 of the writ petition need no comment from the answering respondents. Who else will answer?

13. During the course of arguments, the Court wanted to know from the learned State counsel, as to how could they read subjects in Rule 16(3)? How could it be said that Sub-Rule (3) of the 2006 Rules is applicable to subjects like Hindi, English, Sanskrit, Urdu, Social Studies, Mathematics, Science, Home Science, Commerce and not to the Physical Education? There is no response to it. Learned State counsel would repeatedly submit that as per instructions, Rule 16 Sub- Rule (3) does not apply to Physical Education.

14. A bare reading of Rule 16 of Sub-Rule (3) reveals that, in fact, it applies to such candidates, who are recruited by promotions and who did not have the requisite qualifications for their promotional posts and what is required is that such candidates should acquire requisite qualification within three years from the date of appointment, otherwise

next increment shall be allowed only when they obtain such certificate or degree as above. There is no list of subjects, to which, Rule 16 of Sub-Rule (3) of the 2006 Rules will apply. It would definitely apply to all the subjects. It definitely includes Assistant Teachers (Physical Education).

15. This Court is of the view that non-consideration of the candidature of the petitioners on the ground that Physical Education subject does not fall within the purview of Rule 16 Sub-Rule (3) of the 2006 Rules is without any basis.

16. An argument has been advanced on behalf of the State that since 2006 Rules are not put to challenge, the writ petition is not maintainable. There is no question to challenge any of the 2006 Rules. It is a matter of appreciation of Rule 16(3) of the 2006 Rules. As held hereinabove, Rule 16(3) of the 2006 Rules applies to all subjects. Therefore, the argument on this aspect has not merit.

17. In view of the foregoing discussion, this Court is of the view that the impugned order deserves to be quashed.

18. The writ petition is allowed.

19. The impugned order dated 24.06.2019 is hereby quashed. The petitioners are entitled to be promoted/adjustment to the post of Assistant Teacher (LT Grade) from the date, their juniors have been promoted. The respondents are directed to consider the case of the petitioner accordingly.

(Ravindra Maithani, J.) 15.09.2021 Sanjay