UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 PART 7

UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 

इस केस ने लाखों टी ई टी अभ्यार्थीयों  को संशय में डाल दिया है 

केस की प्रोसीडिंग कई पेजों की है इसलिये में टुकड़ों में इसके मुख्या अंशों' को पब्लिश करने की कोशिश कर रही हूँ ।

क्योंकि इतने सारे पेजों का इस केस को ब्लॉग पर डालने में परेशानी आ रही है 

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PART 7

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Learned counsel for the appellant has also submitted that no advertisement was issued by the District Basic Education Officers for appointment and as and when the names of trained candidates were forwarded to the District Basic Education Officers by Principals of DIET, appointments were made. In this context much reliance has been placed on the supplementary counter affidavit of Mr. I.P. Sharma, Secretary, U.P. Board of Basic Education, Allahabad filed in Writ Petition No. 57595 of 2007 which has been brought on the record as Annexure-17 to the Special Appeal No.2366 of 2011. In the said supplementary counter affidavit following has been stated in paragraph 16:- 

"That so far as the compliance of Rule 14(4) of Rules, 1981 in the process of selection of Assistant Teachers is concerned, as stated above, the

trained eligible candidates is not available in any of the district in the State of U.P., 

therefore a policy decision was taken by the State Government by government order dated 22.8.2005 for appointment of Assistant Teachers in conformity with the list of successful candidates of Special BTC Training Program sponsored by the SCERT to the District Level Selection Committee as provided under the Rules, 1981. The said selection committee scrutinized the candidates for the post of Assistant teachers and after verification of the records, the recommendations were made by the selection committee and thereafter the appointment was made by the competent authority as per Rules, 1981." 

The said supplementary counter affidavit of Secretary,U.P. Board of Basic Education, Allahabad was dated 17th December, 2009 and can at best be treated to a statement of prevalent practice for issuing appointment to the Assistant Teachers. The said affidavit cannot be read to be an affidavit in context of Clause 5 of the notification dated 23rd August, 2010 nor it can be treated to be an admission on the part of the State that advertisement for selecting the candidates for Special BTC Course should be treated as initiation of process of appointment. 

Another limb of argument advanced by learned counsel for the appellants to support the claim of the appellants for appointment as Assistant Teachers without they having clearing TET is that even after 29th August, 2010 the State proceeded to make appointment of candidates who have obtained B.T.C. subsequent to 29th August, 2010. It is submitted that State issued those appointment letters since it correctly understood the legal position that by 

Clause 5 of the notification dated 23rd August, 2010 the minimum qualification as laid down by notification are not applicable for those candidates for whom process of recruitment has already begun. 

It is submitted that denying the appointment to the appellants and appointing similarly situated candidates is nothing but hostile discrimination by the State. Copies of the appointment letter of several candidates, who were appointed subsequent to 29th August, 2010, has been brought on the record in the supplementary affidavit filed in Special Appeal No.2347 of 2011 (Smt. Anjana Singh vs. State of U.P. and others). The appointment letter dated 9th August, 2011 of 131 candidates by District Basic Education Officer, Behraich and appointment letter dated 24th September, 2011 issued by District Basic Education Officer, Saharanpur of one candidate have been brought on the record. There cannot be any dispute to the appointments which have been made by the State of the candidates having Basic Teacher Certificate even after 29th August, 2010 but issuance of appointment letter even after 29th August, 2010 cannot be treated as establishment of fact that process of their appointment has begun prior to 29th August, 2010 and secondly when the case of appellants are not covered by Clause 5 of the notification dated 29th August, 2010 no direction can be issued to the State to give appointment to the candidates who claimed their appointment on the basis of Paragraph 5. The learned Single Judge in this context has rightly relied on the judgment of the Apex Court in the case of Yogesh Kumar and others vs. Government of NCT, Delhi and others reported in (2003)3 SCC 548. 

Thus the fact that certain candidates who have obtained their Basic Teachers Certificate after 29th August, 2010 have been given appointment, cannot be a ground to issue any mandamus to the State specially when notification dated 23rd August, 2010 issued under Section 23 of the 2009 Act creates a prohibition. Thus this Court cannot issue any mandamus to the State Government to violate statutory provisions. We are of the view that the appellants are not entitled for the benefit of Clause 5 of the notification dated 23rd August, 2010 and for them it cannot be held that process of appointment has begun before the date of notification dated 23rd August, 2010. 

Sri Ashok Khare, learned Senior Advocate, appearing for the appellants, in support of his submissions, has placed reliance on the judgment of the Apex Court in the case of N. Suresh Nathan vs. Union of India reported in 1992 Suppl.(1) SCC 584, Division Bench judgment of this Court dated 4th May, 2009 in Special Appeal No.377 of 2008 (Prem Chandra & others vs. State of U.P. and others), judgment of the Apex Court in the case of State of U.P. vs. Satish Kumar Mishra reported in 2010(9) SCC 52, judgment of the Apex Court in the case of State of Bihar and others vs. Mithlesh Kumar and judgment of the Himachal Pradesh High Court dated 21st August, 2012 in Writ Petition No.11746 of 2011 (Meena Kumari and others vs. State of Himachal Pradesh). 

In N. Suresh Nathan's case (supra) interpretation of recruitment rules for the post of Assistant Engineer in Public Works Department was under consideration. The dispute in the case was whether a diploma holder Junior Engineer who obtains a degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of three years' service including therein the period of service prior to obtaining the degree or the three years' service as a degree holder for this purpose is to be reckoned from the date he obtains the degree. The Apex Court after considering the submission held that if the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. Following was laid down in paragraph 4 of the said judgement which is as under:- 

"4. In our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents Diploma-holders that the practice followed in the Department for a long time was that in the case of Diploma-holder Junior Engineers who obtained the Degree during service, the period of three years' service in the grade for eligibility for promotion as Degree-holders commenced from the date of obtaining the Degree and the earlier period of service as Diploma-holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents Diploma-holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6,1968 extracted at pages 99-100 of the paper book in the counter affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined." 

In the aforesaid case the past practice in the department to treat diploma holders eligible for promotion after expiry of three years from the date they obtained the degree was one of the possible interpretation of the rules and since the said interpretation was backed by practice, the same was accepted. 

Against the Division Bench judgment of this Court in Prem Chandra's case (supra), the matter was taken in the Apex Court which is reported in 2010(9) SCC 52; State of U.P. and others vs. Santosh Kumar Mishra. It is sufficient to note the relevant observations of the Apex Court to find out the ratio of the aforesaid judgment. The issue, which was involved in the aforesaid case, has been noted in paragraphs 1 and 5, which are quoted below:- 

"1. The same criteria differently applied at two different points of time leading to different results and consequences, is the problem we are faced with in these Special Leave Petitions. The same principles which were applied in the case of the Respondents to deny them the benefit of appointment, were not given effect to when it came to their turn to get the benefit thereof. 

5.  According to the Respondents, on an interpretation of Rule 15(2) of the 1980 Rules by the State Government, they were entitled to be selected and appointed first on the vacancies advertised, as they belonged to previous batches and were denied appointment by the State Government earlier on the plea that notwithstanding their merit being superior to those of some of the diploma holders, who had obtained diploma prior in point of time, the latter candidates were to be given appointment first. As a result, those diploma holders, who had obtained diploma before the Respondents, were adjusted against the vacancies first, irrespective of their merit vis-`- vis the diploma holders of subsequent batches and the said practice was continued till 2002. However, when the fresh vacancies were declared and the Respondents were to be appointed on the same principle and practice, they were denied the benefit of the same citing the Rules of 1980 read with Rules of 2002, as amended by the Rules of 2003." 

The Division Bench of this Court took the view that when candidates were not permitted on the ground that candidates of earlier batches have to be promoted first irrespective of their merit, while considering those candidates for promotion the said practice cannot be departed with. The Apex Court laid down following in paragraph 41 of the said judgment:- 

"41.  It is on account of a deliberate decision taken by the State Government that the private Respondents were left out of the zone of consideration for appointment as Pharmacists in order to accommodate those who had obtained their diplomas earlier. The decision taken by the State Government at that time to accommodate the diploma- holders in batches against their respective years can no doubt be discontinued at a later stage, but not to the disadvantage of those who had been deprived of an opportunity of being appointed by virtue of the same Rules. In our view, the same decision which was taken to deprive the private Respondents from being appointed, could not now be discarded, once again to their disadvantage to prevent them from being appointed, introducing the concept of merit selection at a later stage. The same may be introduced after the private Respondents and those similarly-situated persons have been accommodated." 

The ratio of the above judgment of the Apex Court can be culled out from the above observation where it laid down that the decision of the State Government to accommodate diploma holders in batches against their respective years can no doubt be discontinued at a later stage, but not to the disadvantage of those who had been deprived of an opportunity of being appointed by virtue of the same Rules. The present is not a case where at any point of time the appellant, who have obtained B.T.C. after the date of notification dated 29th August, 2010 were considered and not appointed. Thus the judgment in the case of State of U.P. and others vs. Santosh Kumar Mishra was on its own facts and is clearly distinguishable. 

The judgment of the Apex Court in the case of State of Bihar vs. Mithlesh Kumar laid down that norms or rules as existing on date when process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect. There cannot be any dispute to the proposition laid down by the Apex Court in the aforesaid judgment. However, the question which is relevant in the present case is as to when process of selection begins. As noted above, the benefit of clause 5 of the notification dated 23rd August, 2010 could be available only when an advertisement has been issued initiating the selection process. In the case of State of Bihar vs. Mithlesh Kumar requisition was sent by the Government of Bihar to the Bihar Public Service Commission on 12th March, 1999 and the respondent was also interviewed but subsequently the policy was changed and the Commission did not sent any recommendation as the State Government requested the Commission not to recommend any further name. Following was observed by the Apex Court in paragraph 19 of the said judgment:- 

"19.  Both the learned Single Judge as also the Division Bench rightly held that the change in the norms of recruitment could be applied 14 prospectively and could not affect those who had been selected for being recommended for appointment after following the norms as were in place at the time when the selection process was commenced. The Respondent had been selected for recommendation to be appointed as Assistant Instructor in accordance with the existing norms. Before he could be appointed or even considered for appointment, the norms of recruitment were altered to the prejudice of the Respondent. The question is whether those altered norms will apply to the Respondent." 

The above case is thus clearly distinguishable since selection was complete and after completion of selection the process was changed. 

Learned counsel for the appellant has also relied on a judgment of the Himachal Pradesh High Court in Meena Kumari's case (supra). Learned Single Judge in the aforesaid case laid down following in paragraphs 6 and 7:- 

"6. Independently, it be also observed that respondents themselves have been adopting a policy of pick and choose, with regard to certain similarly situated persons, who approached this Court by way of CWP No.2994 of 2008, titled as Avinash Chander Sharma and others versus State of H.P. and others, wherein vide judgment dated 3.6.2011, the following observations were made: 

"Consequently, there will be a direction to respondent No.1 to take a decision with regard to filling-up of the backlog of posts of JBT in entire State of Himachal Pradesh, in accordance with the Reservation Policy and also procedure prescribed under the Rules. It is the grievance of the petitioner that no requisition is being sent by the Government to the ex-servicemen Cell for sponsoring the names mentioned in their roles. All posts to be filled-up by ex-servicemen or their dependants are to be identified and notified accordingly. It is clarified that till such time this procedure is not complied with, no posts of JBT shall be filled-up. The process of identification of the posts in question, if required, shall positively be completed within a period of four months from the receipt of copy of this judgment. Only thereafter, process for selection and appointment shall take place, which in any even must complete within a reasonable period, in accordance with statutory rules, guidelines and instructions." 

7. Significantly, while complying with such directions, respondents themselves have given appointment to the petitioners therein without insisting upon the condition of clearance of TET. Hence, this discriminatory approach cannot be allowed to be adopted by the Government in the case of the present petitioners. A uniform policy and approach has to be adopted qua all similarly situated persons. There cannot be any pick and choose. The actions of the State in the instant cases are thus arbitrary, whimsical and illegal." 

In the aforesaid case the State of Himachal Pradesh implemented the direction of the Court to take a decision with regard to filling up the post of JBT in accordance with the reservation policy and procedure prescribed in the rules. In complying with the direction the State adopted a discriminatory approach which was disapproved by the High Court. In the present case the submission of the counsel for the appellants is that when the candidate of first batch of B.T.C. 2004 were appointed subsequent to notification dated 29th August, 2010 without insisting them passing of TET, the same cannot be pressed into service against the appellants who are similarly situated. When prescribing of qualification for appointment of Assistant Teachers in basic schools is regulated by qualification prescribed by academic authority under Section 23 of the 2009 Act, the State is not a free agent to make appointment. The appointment of candidates, according to 2001 NCTE regulation could be made provided their cases are covered by Clause 5. We have already observed that cases of appellants are not covered by Clause 5 since it cannot be held that advertisement initiating process of appointment of teachers had began prior to the date of notification. Thus, as observed above, directing the State to make appointment of the candidates whose cases are not covered by Clause 5 shall be asking the State to act contrary to notification dated 23rd August, 2010 which is not permissible. 

Sri Shailendra, learned counsel appearing for the appellant in Special Appeal No.2391 of 2011, apart from adopting the submissions made by Sri Khare, has also contended that National Council of Teacher Education has no jurisdiction to prescribe qualification for appointment on the post of Assistant Teacher in basic schools. It is contended that under the 1993 Act, the NCTE can only prescribe qualification for teachers to impart teachers training. It is submitted that NCTE can have jurisdiction with regard to training qualifications in an institution and NCTE has no jurisdiction to prescribe qualification for basic schools. The submission of counsel for the appellants is fallacious since while laying down the qualification for appointment of teachers in basic schools vide notification dated 23rd August, 2010, the NCTE was not exercising any jurisdiction under the 1993 Act, rather the NCTE was laying down the qualifications under Section 23 of the 2009 Act as an academic authority as authorised by the Central Government. The Parliament has legislative competence to legislate on education as contained in Entry-25 of Last-III of VIIth Schedule of the Constitution of India. The education obviously includes primary education. The State by virtue of Article 21-A is obliged to provide free and compulsory education to children. Under the 2009 Act the NCTE has every competence to make provision laying down minimum qualification for appointment of teachers in primary schools. The NCTE is an academic authority authorised by the Central Government under the 2003 Act, hence there is no lack of jurisdiction in the NCTE to lay down minimum qualification for appointment of teachers in primary schools as per Section 23 of the 2009 Act and the submission of counsel for the appellant that NCTE has no jurisdiction to lay down the qualification for basic schools is fallacious. 

The submission of Sri Shailendra that notification dated 23rd August, 2010 is invalid since it has not been laid as required by Section 38(3) of the 2009 Act also cannot be accepted. Section 38(3) of the 2009 Act is applicable on rules framed by the appripriate Government exercising power under Section 38. The notification dated 23.8.2010 has been issued in exercise of power under Section 23 of the 2009 Act which can be exercised by the academic authority by notification. The notification dated 23.8.2010 has been published in the Gazette of India dated 25.8.2010 hence fully enforceable. 

Now comes the second issue, as noted above. The claim of the appellants who are BA/BSc with 50% and possesses B.Ed. qualification is that they are eligible for appointment as Assistant Teacher according to Clause 3 of the notification dated 23rd August, 2010 without requirement of having passed TET since the qualification of BA/BSc with at least 50% marks and B.Ed has been provided for appointment as Assistant Teacher to teach Classes I to V with rider that such appointees shall be imparted six months special programme in elementary education. It is 

submitted that qualifications under Clause 3 of the notification dated 23rd August, 2010 are independent qualifications and are not controlled by Clause 1 of the notification which requires passing of TET for appointment as Assistant Teacher to teach Classes I to V and Classes VI to VIII. For answering the question the scheme of the 2009 Act and the scheme as delineated by notification dated 23rd August, 2010 has to be looked into.