Larger Bench Going To Constitute for Selection of Graduate + B. Ed Candidate in Management College, Where Petitioner Dies Not Possess Requisite Qualification and their appointment cancelled

Larger Bench Going To Constitute for Selection of Graduate + B. Ed Candidate in Management College, Where Petitioner Dies Not Possess Requisite Qualification and their appointment cancelled

See Judgement -

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 35

Case :- SPECIAL APPEAL No. - 1234 of 2013

Appellant :- Ram Surat Yadav And 3 Others
Respondent :- State Of U.P. Thru' Secry. And 4 Others
Counsel for Appellant :- Ashish Kumar Ojha,Radha Kant Ojha
Counsel for Respondent :- C.S.C.,Indra Raj Singh

Hon'ble Laxmi Kanta Mohapatra,J.
Hon'ble B. Amit Sthalekar,J.
This special appeal has been filed by the petitioners/appellants challenging the order of the learned Single Judge dated 30.7.2013 dismissing the writ petition. 
The petitioners filed a Writ Petition No. 41272 of 2013 seeking quashing of the order dated 22.4.2013/13.5.2013 passed by the Director of Education (Basic) U.P., Lucknow, whereby the District Basic Education Officer has been directed to cancel the approval granted previously to the appointment of the petitioners. 
Briefly stated the facts of the case are that an exercise was initiated by the Committee of Management of the Jan Sewa Samiti Madhyamik Vidhyalaya, Naugeera, Mauaima, Allahabad for filling up the posts of Assistant Teachers in terms of the provisions of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the Act, 1978). The vacancies were advertised in the newspaper "Amar Ujala" and a selection took place on 24.12.2006. After selection, the papers were forwarded to the District Basic Education Officer alongwith certain objections, which had been raised. The claim was rejected on 23.5.2007 but the management represented the matter before the District Basic Education Officer and the parties were called and heard and thereafter approval was granted to the appointment of the petitioners on 8.8.2007. This order came to be challenged in Writ Petition No.55818 of 2007 by one Chandra Bali Patel and the said writ petition was disposed of with a direction that if the said petitioner represents his case before the Director of Education (Basic), the Director of Education shall adjudicate the controversy in accordance with law after providing opportunity of hearing to the petitioner as well as to the respondents no. 4 to 8. On re-examination of the matter, the claim of the petitioners has been disapproved by the impugned order dated 22.4.2013/13.5.2013. This order has been challenged in the writ petition giving rise to the present appeal. The claim of the petitioners therein has been rejected inter alia on the ground that the petitioners did not fulfil the eligibility qualification required for the post of Assistant Teacher (Basic) and they did not possess the training certificate of BTC, HTC or JTC. Before the writ court the petitioners contended that their appointments had been validly made in terms of the provisions of Rules, 1978 and they have also been paid salary and therefore, the approval granted could not have been cancelled. 
Per contra, the respondents before the writ court submitted that the petitioners did not possess the requisite minimum qualification at the time when they were appointed and therefore, their appointments were absolutely illegal. Reliance has been placed on the provisions of Rule 4 of the Rules, 1978 as then existing Rule 4 (1) is being extracted below: 
"4. Minimum Qualification(1) The minimum qualifications for the post of Assistant Teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and teacher's training course recognised by the State Government or the Board such a Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training. 
The above Rule 4(1) had also been quoted by the learned Single Judge in the impugned judgment. From a careful reading of the aforesaid Rule, it is apparent that the candidate concerned must have passed Intermediate Examination or equivalent examination with Hindi as one of the subjects and must have also obtained Teacher's Training Certificate recognized by the State Government Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training." 
Rule 4 (1) provides that the minimum qualification for the post of Assistant Teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination with Hindi and teacher's training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training.
Admittedly all the petitioners only possess the educational qualification of B.A. and B.Ed and they did not fulfil the eligibility criteria of having a Teacher's Training Course as prescribed in Rule 4 (1) of the Rules, 1978. The learned Single Judge has recorded a finding that the petitioners did not fulfil the eligibility criteria of having a Teacher's Training Course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training. Before the writ court the petitioners tried to contend that the Rules, 1978 had been amended by the Uttar Pradesh Recognised Basic Schools (Junior High School) (Recruitment of Service of Teachers) (Vth Amendment) Rules, 2008, which came into force on 12.6.2008 and according to which B.Ed. has been accepted as one of the Teacher's Training Certificate and therefore, the petitioners having a B.Ed. qualification, their appointment was valid. This contention has been rejected by the learned Single Judge on the ground that the Amendment Rules, 2008 came into force on 12.6.2008 and whereas, the advertisement had been issued earlier and the selection had also taken place on 24.12.2006, therefore, the Amendment Rules, 2008 would not apply retrospectively.
Across the bar, Sri R.K. Ojha, learned Senior Counsel assisted by Sri Ashish Kumar Ojha has submitted that vide the Amendment Rules, 2008 the Degree of B.Ed. has been recognised as one of the Teacher's Training Certificate and therefore, the petitioners cannot be non-suited on the ground that they did not possess the minimum eligibility qualification of a Teacher's Training Certificate as prescribed by the State Government or the Board. Sri Ojha further submitted that the Amendment Rules, 2008 would apply retrospectively, even to the selection held on 24.12.2006 and therefore, the petitioners having the eligibility of qualification of B.Ed. would be held to be having the requisite Teacher's Training Certificate.
Rebutting the submissions of the learned counsel, Sri Indra Raj Singh has submitted that eligibility qualification of B.Ed. cannot be held to be equivalent to a Teacher's Training Certificate and this controversy is no longer res integra having been settled by the Supreme Court in the case of Mohd. Sartaj and another vs. State of U.P. & others reported in (2006) 2 SCC 315. In the case of Mohd. Sartaj (supra) the appellants-Teachers possessed the Degree of Moallim-e-Urdu but they did not possess a Teacher's Training Certificate. Rule 8 of the U.P. Basic (Teachers) Service Rules, 1981 framed under the U.P. Basic Education Act, 1972 provided that Assistant Masters and Assistant Mistress Junior Basic School must possess the following academic qualifications:
"A Bachelor's Degree from a University established by law in India or a Degree recognized by the State Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto: Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course.
(2) The essential qualification of candidates for appointment to a post of Assistant Master and Assistant Mistress of Senior Basic School for teaching Science, Mathematics, Craft or any language other than Hindi shall be as follow:-
(i) Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh, or any other examination recognized as equivalent thereto by the State Government with Science, Mathematics, Craft or particular language, as the case may be, as one of the subjects in which he or she has been examined for the purpose of such examination; and
(ii) Training qualification consisting of Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by Government as equivalent thereto."

The advertisement in that case was issued on 15.10.1984 and 19.6.1985 the list of selected candidates was published which included the names of Mohd. Sartaj and another. However, on 7.8.1985 the Urdu Advisory Director of Education issued Direction regarding cancellation of the appointment of the appellants on the ground that they did not possess the Basic Training Certificate and on 9.8.1985 their appointment was cancelled. In the meanwhile, Mohd. Sartaj and another acquired B.T.C. in 1993 and 1995 respectively.
The Supreme Court held that the requisite qualification for appointment of Assistant Teacher (Urdu) is High School Examination of Board of High School and Intermediate Education, U.P. or equivalent qualification recognised by the State Government together with training qualification which conceded either one among the Basic Teacher's Certificate (B.T.C.), Hindustani Teacher's Certificate and held that the admitted position is that the qualification of Basic Teacher's Certificate or Hindustani Teacher's Certificate or Junior Teacher's Certificate or Certificate of Training was not possessed by the appellants Mohd. Sartaj and another at the time of their appointment as Assistant Teachers as prescribed in Rule 8 of the Rules, 1981.
A Division Bench of this Court in the case reported in 2005 (1) ESC (All) 713 interpreting the provisions of Rule 4 (1) of the Rules, 1978 has held that the Teacher's Training Course referred to in Rule 4 (1) is a requisite training qualification for teaching small children and therefore B.Ed./L.T./B.Ed/C.P.Ed. Or D.P.Ed. certificates cannot be taken into consideration in the matter of teaching small children keeping in mind the provisions of Rule 4 (1). Paras 15 and 16 of the judgment read as follows:
"15. It cannot be disputed that the Teacher's Training imparted to teachers for B.Ed. course equips them for teaching higher classes whereas the Basic Teaching Certificate (hereinafter referred to as B.T.C.') is given to teachers for teaching small children and the two cannot be compared with, as has been clearly observed by the Supreme Court in the case of Yogesh Kumar and others v. Government of N.C.T. Delhi and others, (2003) 3 SCC 548. The duration of courses of B.T.C. and L.T./.Ed. are entirely different and have been devised keeping in view the stages through which the students pass. In the case of B.T.C. the method of Training Course is devised so as to meet the requirement of teaching at a formative stage for a student who enters the School. Thus it is evident that the training qualification for teaching small children is B.T.C. While the training qualification for teaching children in High Schools and Intermediate Colleges is B.Ed. or L.T.
16. We should, therefore, interpret Rule 4(1) of the 1978 rules keeping in mind the observations made by us above and if we do so then there can be no manner of doubt that the Teacher's Training Course referred to in the said Rule should be confined to such Training Course which are imparted to teach small children only. This is the reason why the Legislature has specifically referred to four such Training Courses which are specifically confined to Specialised Training for imparting education to small children and if we interpret it in such a manner then the question whether the four Certificates referred to in Rule 4 (1) of the 1978 Rules are exhaustive or illustrative may not assume much significance since even if it is held that they are merely illustrative then too we are of the opinion that only such other certificates can be taken into consideration which relate to Specialised Training for imparting education to small children. The B.Ed./L.T./B.P.Ed/C.P.Ed. Or D.P.Ed. Certificates cannot, therefore, be taken into consideration." 
Another Division Bench judgment of this Court in Special Appeal No. 995 of 2007 (Chandra Prakash Singh Vs. State of U.P. & others) considering the earlier judgment of this Court in Sanjay Kumar Tyagi (supra) and the judgment of the Supreme Court in Mohd. Sartaj (supra) has affirmed the view taken in the case of Sanjay Kumar Tyagi that the Degree of B.Ed. is not equivalent or at par with Teacher's Training Course Certificate contemplated by Rule 4 (2) (b) of Rules, 1978.
In his rejoinder submissions Sri R.K. Ojha, learned Senior Counsel then submitted that the judgment of the Supreme Court in the case of Mohd. Sartaj (supra) has been considered by another Division Bench of this Court in Special Appeal No. 80 of 2011 (Rishi Kant Sharma Vs. State of U.P. and others) and the said Division Bench has distinguished the judgment of Mohd. Sartaj on the ground that the cancellation of the order of appointment of the appellant before the Supreme Court was issued within a very short span of time giving no probability for any legitimate expectation to the appellants regarding continuation of their service whereas in the case before the Division Bench a long span of time has expired and such a long span of time gives rise to a legitimate expectation.
Sri Ojha further submitted that against the judgment of the Division Bench in the case of Rishi Kant Sharma, SLP (civil) No.22132 of 2011 was filed but the same was dismissed with the following observation:-
"No case is made out for interference in exercise of our jurisdiction under Article 136 of the Constitution. The special leave petition is dismissed accordingly."
Sri R.K. Ojha further submitted that another Division Bench judgment dated 9.1.2009 in Special Appeal No. 1461 of 2005 was also dismissed against which S.L.P. (Civil) No. 14907 of 2009 has been filed and in which the Supreme Court has issued notice and granted interim stay. His contention, therefore, is that in view of the two orders of the Supreme Court in the case of Rishi Kant Sharma and the interim order in the case of Savitri Devi and others the appointment of the appellants on the post of Assistant Teacher cannot be held to be bad for deficiency of the eligibility qualification of Teacher's Training Certificate.
So far as the order of the Supreme Court in the case of Rishi Kant Sharma is concerned, the said writ petition has been dismissed by the order which has already been quoted hereinabove and the said order cannot be said to be a speaking order laying down any law which may be a precedent. The Supreme Court in AIR 1986 SC 1780 (Indian Oil Corporation Ltd. Vs. State of Bihar) has held that a mere dismissal of Special Appeal by non speaking order which reads as " The Special Leave Petition is dismissed" does not justify any inference that by implications the contentions raised in the Special Leave Petition on the merits of the case have been rejected by the Court.
The Supreme Court has also held that a stay order granted by the Supreme Court in a case before it is only an order inter parte and does not constitute a judgment or have a binding force of precedent where a similar question may arise before the writ court.
However the moot question before us is that the consistent view of the various Division Benches of this Court in the case of Sanjay Kumar Tyagi (supra) and Chandra Prakash (supra) and in the judgment of Supreme Court of Mohd. Sartaj and others (supra) is that the Teacher's Training Certificate is an absolutely essential qualification for teaching small children in the Basic Schools. This view has not been disputed in the case of Rishi Kant Sharma but the judgment of the Supreme Court in the case of Mohd. Sartaj (supra) has been distinguished only on the ground that in that case the order of cancellation of appointment of the appellants therein was passed within a short span of time whereas, in the case of Rishi Kant Sharma the appellants had continued to work as Assistant Teacher for 8 long years and therefore, a legitimate expectation had been created in their favour. Thus in our view, there is a conflict of decisions between the Division Benches of this Court in the case of Sanjay Kumar Tyagi, Savitri Devi, Chandra Prakash Singh and of the Supreme Court in the case of Mohd. Sartaj (supra) on the one hand and that of the Division Bench of this Court in the case of Rishi Kant Sharma. The Rules, 1978 do not provide any relaxation in the eligibility criteria laid down in Rule 4(1). Therefore, the question would arise as to whether such relaxation could be granted by a judicial opinion and whether the judgment of Rishi Kant Sharma lays down the correct law in view of the legal position settled by several Division Bench decisions referred to above and the Supreme Court in the case of Mohd. Sartaj (supra).
In our view, the matter requires consideration by a Larger Bench as to whether the observations made by the Division Bench in the case of Rishi Kant Sharma Vs. State of U.P. and others passed in Special Appeal No.80 of 2011 lays down the correct law. 
We accordingly direct the Office to lay the papers of this case before the Hon'ble Chief Justice for constituting a Larger Bench for determination of the legal question raised above. 
Order Date :- 4.9.2013
N Tiwari