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Court No. - 34
Case :- CONTEMPT APPLICATION (CIVIL) No. - 1226 of 2010
Petitioner :- Furqan Ali And Others
Respondent :- Sri Anup Chandra Pandey, Secy. Basic Education And Others
Petitioner Counsel :- Shailendra
Respondent Counsel :- B.P.Singh,S.C.
Hon'ble Vikram Nath,J.
Heard Sri Shailendra, learned counsel for the applicants and Sri K. S. Kushwaha, learned counsel appearing for the opposite party.
The writ petition filed by the applicants being Writ Petition No.1393 of 2009 was allowed by the learned Single Judge vide judgement and order dated 5.11.2009. The operative operation of the judgement read as follows :
"Writ petition is allowed and the respondents are commanded to consider the claim of the petitioners and such other candidates possessed of Diploma in Teaching granted by the Aligarh Muslim University provided they satisfy all other conditions for appointment as Assistant Teachers in Basic School against the posts covered by Rule 8(4) of 1981 Rules. The respondents are further directed not to make appointment on the posts covered by Rule 8(4) of 1981 Rules from the candidates who have or who may obtain training under the Special BTC Training (Urdu). In the facts of this case it is further necessary to direct the State respondents to initiate proceedings for appointment of Assistant Teachers in primary institutions for teaching Urdu language qua posts covered by Rule 8(4) in as much as it is admitted to the State Government that large number of such posts are lying vacant as per the letters dated 16.02.2005 and 12.04.2005 on record, of the Secretary of the Department. It is to be noted that these letters were written prior to addition of Rule 8(5) to 1981 Rules and, therefore, posts referred to as Urdu teachers therein, are those covered by Rule 8(4) only. The petitioners will be at liberty to apply. Let the entire exercise as indicated above qua both the directions be completed by the respondents concerned from the date a certified copy of this order is filed. "
The State of U.P. assailing the correctness of the order of the learned Single Judge filed an intra court appeal registered as Special Appeal No. (416) of 2010. The Division Bench vide judgement and order dated 27.10.2010 dismissed the said appeal filed by the State. The State further took the matter to the Apex Court by way of Special Leave to Appeal (Civil) No.2541 of 2011, which was dismissed by the Apex Court vide order dated 11.7.2011. Thus, the judgement of the learned Single Judge dated 05.11.2009 became final and binding interse parties. As the declaration made in the judgement dated 05.11.2009 and the directions contained therein were not being complied with the present contempt application was filed in which notices were issued on 18th March, 2010. Affidavits have been exchanged between the parties.
The operative portion of the judgement of the learned Single judge is in four parts. Firstly, there is declaration that the applicants who possessed the Diploma in teaching from the Aligarh Muslim University were eligible for being appointed as Assistant Teachers in the Basic School against the post covered by Rule 8(4) of the U.P. Basic Education Teachers Service Rules 1981 (hereinafter referred to as the 1981 Rules). The second part was a direction to the respondents not to make appointments on the post covered by Rule 8(4) of the 1981 Rules from the candidates who have undergone Special B T C Training (Urdu). Third part was a further directions to the State respondents to initiate proceedings for appointment of Assistant Teachers in Primary institution for teaching Urdu language against the post covered by Rule 8(4) of the 1981 Rules as it was an admitted situation that large numbers of such posts were lying vacant. There was further a declaration that the post referred to in the letters dated 16th February, 2005 and 12th April,2005 issued by the Secretary of the Department were posts referable to Rule 8(4) of the 1981 Rules and were to be filled up accordingly.
Non-compliance / disobedience has been alleged in this contempt application in the following manner.
(I) Despite the fact that applicants had been held to be eligible for being appointed as Assistant Teacher in Basic School against posts of Rules 8(4) of the 1981 Rules, the opposite parties have not considered the claim of the applicant on such posts.
(II) The opposite parties have made appointments on the post covered by Rule 8(4) of the 1981 Rules from the candidates who have undergone Special B T C Training (Urdu).
(III) The directions for initiating proceedings for appointment of Assistant Teacher against the posts covered by Rule 8(4) of the 1981 Rules had still not been initiated despite lapse of more than two years.
(IV) After the dismissal of intra Court appeal filed by the State and Special Leave to Appeal filed before the Apex Court in October, 2010 and July 2011 respectively, the opposite parties have continued to make appointments from the Special B.T.C. Training (Urdu) candidates against the post covered by Rule 8(4) of the 1981 Rules. (V) The opposite parties are adding further eligibility condition for the applicants on the basis of certain amendments brought in the year 2010 compelling the applicants to appear for the Teacher Eligibility Test, which test does not apply to the applicants.
The only affidavit filed after dismissal of Special Leave to Appeal of the State is dated 9.12.2011 filed by opposite party no.5 / Ramesh Chandra Verma, presently posted as District Basic Education Officer, Bulandshahr. The basic objection taken in the said affidavit is that after dismissal of the Special Leave to Appeal the State has started the process and in that regard the eligibility test as provided by the NCTE and as adopted by the State of U.P., is being conducted and successful candidates would be considered. No explanation has come forward with regard to the appointments made by the opposite parties of those candidates who had under gone Special B.T.C Training (Urdu) and who have been appointed against the post covered by Rule 8(4) of the 1981 Rules. In order to appreciate the controversy with regard to the post covered Rule 8(4) and Rule 8(5) of 1981 Rules it would be relevant to refer to the said provisions in brief.
Rule 8 defines the eligibility for appointment of Assistant Teachers in primary / basic schools.
Rule 8(4) of 1981 Rules deals with the eligibility conditions of Assistant teachers to be appointed in Primary schools in general.
Rule 8(4) of 1981 Rules provides qualification of candidates for appointment as Assistant Teachers to impart teaching of Urdu language i.e. to teach Urdu as a subject.
Rule 8(5) of 1981 Rules which was inserted in the year 2007 provides essential qualification for candidates having proficiency in Urdu i.e. to teach all subject in Urdu medium. The qualification for having proficiency in Urdu to be eligible to teach in Urdu medium was a Bachelor's Degree from a University established by Law in India or a Degree recognized by the Government as equivalent thereto, a training qualification of two years BTC Urdu special training course, and the qualification for proficiency in Urdu will be such as may be prescribed from time to time by the Government.
So from the above discussion, it is apparent that for appointment to a post covered by Rule 8(5) of the 1981 Rules, there were three educational qualification to be possessed, firstly a Bachelor Degree, secondly a training qualification of two years Special BTC (Urdu) and lastly the qualification for proficiency in Urdu was to be prescribed by the Government.
On a query being made from Sri K. S. Kushwaha, learned Counsel appearing for the opposite parties as to whether or not the Government has prescribed the qualification for proficiency in Urdu, the answer was no i.e. the Government has still not defined as to what would be the qualification for proficiency in Urdu. Until and unless such qualification was prescribed, no candidate would be eligible to be appointed against Rule 8(5) of 1981 Rules. Despite the same in District Bulandshahr alone as many as 175 Assistant Teachers are said to have been appointed to teach in Urdu medium i.e. on a post covered by Rule 8(5) of the 1981 Rules.
There is also an issue as to whether any posts have been earmarked to be covered by Rule 8(5) of 1981 Rules. Admittedly the 1981 Rules had been amended in 2007 whereby Rule 8(5) had been inserted. The training in the Special B.T.C Urdu had been started pursuant to the Government order dated 18th March, 2006 and 5th September, 2006 at a time when Rule 8(5) had not been inserted. Subsequent to the insertion of Rule 8(5) of 1981 Rules in the year 2007 there is no Government order on record declaring or identifying the posts to be filled up by candidates possessing qualification as required by Rule 8(5) of the Rules.
The training is imparted by the SCERT as such the response of its Director is also necessary.
All these questions need to be answer by the State authorities as otherwise the State would be indulging into misrepresentation and concealment of material facts in an attempt to circumvent the judgement of the writ Court.
Accordingly, let this matter be listed on 13th February, 2012. On the said date whoever is posted as Principal Secretary / Secretary Basic Education, Government of U.P., Director, Basic Education and the Director, State Council for Education, Research and Training U.P. shall remain present before this Court along with their respective parawise response to the averments contained in the affidavit filed in support of the contempt application the other affidavits filed by the applicant and also the observations made in this order.
A copy of this order may be furnished to Sri K. S. Kushwaha, learned counsel for the opposite party, within 48 hours for necessary compliance.
Order Date :- 17.1.2012