UPTET SARKARI NAUKRI News - Uttrakhand TET - Shiksha Mitra Case Nainital Highcourt Order Dated 22 Sept 2014 -
Government of Uttarakhand, struggling with shortage of teachers, approached the Government of India and the Government issued Government Order dated 27.10.2012, by which exercising power under Section 23, it extended till 31.03.2014 the power to make appointments from B.Ed. holders.
Relaxation of Shiksha Mitra is Not Found in This Order.
Acadmic Merit + TET Wtz formula is used in Selection.
Reserved
IN THE HIGH COURT OF UTTARAKHAND AT NAINTAL
SPECIAL APPEAL NO. 390 OF 2014
State of Uttarakhand and another. ………Appellants.
Versus
Keshavanand Jhaldiyal ……Respondent
Mr. U.K. Uniyal, Advocate General with Mr. Subhash Upadhyay, Chief Standing Counsel for the State of Uttarakhand / appellants.
Mr. K.P. Upadhyay, Advocate for the respondent.
Mr. Paresh Tripathi, Advocate for the interveners.
SPECIAL APPEAL NO. 394 OF 2014
Mahendar Singh & others. ………Appellants.
Versus
Keshavanand Jhaldiyal & others. ……Respondents
Mr. Anil Kumar Bisht, Advocate for the appellants.
Mr. K.P. Upadhyay, Advocate for respondent no. 1.
Mr. U.K. Uniyal, Advocate General with Mr. Subhash Upadhyay, Chief Standing Counsel for the State of Uttarakhand / respondent nos. 2 and 3.
SPECIAL APPEAL NO. 395 OF 2014
Deepak Kumar & others. ………Appellants.
Versus
State of Uttarakhand and another. ……Respondents
Mr. Rakesh Thapliyal & Mr. Pankaj Chaturvedi, Advocates for the appellants.
Mr. U.K. Uniyal, Advocate General with Mr. Subhash Upadhyay, Chief Standing Counsel for the State of Uttarakhand / respondent nos. 1 and 2.
Mr. K.P. Upadhyay, Advocate for respondent no. 3.
&
SPECIAL APPEAL NO. 411 OF 2014
Surendra Kumar and others. ………Appellants.
Versus
Keshavanand Jhaldiyal & others. ……Respondents
Mr. Paresh Tripathi, Advocate for the appellants.
Mr. K.P. Upadhyay, Advocate for respondent no. 1.
Mr. U.K. Uniyal, Advocate General with Mr. Subhash Upadhyay, Chief Standing Counsel for the State of Uttarakhand / respondent nos. 2 and 3.
Dated: 22.09.2014
Coram:
Hon’ble K.M. Joseph, C.J.
Hon’ble V.K. Bist, J.
K.M. Joseph, C.J.
Since these Appeals involve common questions of law and facts, we are disposing of the same by this common judgment.
2. Appellants are the State of Uttarakhand as well as the private individuals. The writ petitioner (hereinafter referred to as the petitioner) filed the writ petition seeking the following reliefs:
“(i) Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the advertisement dated 1st February 2014 (Annexure No. 9 to the writ petition) issued by the Director, Elementary Education, Uttarakhand for selection to the post of Assistant Teacher in various Govt. Primary Schools of the State, as the same is contrary to the Service Rules.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to hold the selection for the post of Assistant Teacher in various Govt. Primary Schools of the State in terms of the provisions of Uttarakhand Govt. Primary Education (Teacher) Service Rules, 2012 as amended in 2013.
(iii) Issue writ, order or direction in the nature of Certiorari quashing the clause in the impugned advertisement so far as the same provides horizontal reservation in favor of skilled sports persons, Uttarakhand Rajya Andolankari and the dependants of Rajya Andolankari as the same being in contravention of the judgment and order passed by the Hon’ble Court.
(iv) Issue any other suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case.”
3. As per the Advertisement in question, applications were invited for selection for appointment of teachers in Elementary Schools. Under the impugned advertisement, it is mentioned that the list of selected candidates was to be prepared in descending order. In the Advertisement, it was stated that the list would be prepared not only as per the marks obtained in B.TC. or D.El.Ed or T.E.T., but also the quality points for the marks obtained by the candidates in High School, Intermediate and Graduation. Still further, the advertisement provides that selection would be made on year-wise basis, that is to say the person, who has obtained B.Ed. degree in earlier year will be treated as senior to the one in the list, who has obtained the same in the later year. Reservation has also been provided for sportspersons and Rajya Andolankari. As regards
reservation for sportspersons is concerned, the learned Single Judge took note of the judgment of the Division Bench of this Court in Special Appeal No. 162 of 2013 and found it to be bad. Insofar as reservation for the Uttarakkhand Rajya Andolankari is concerned, the learned Single Judge again found that there is no justification in making reservation for them. Passing on to the year-wise seniority to B.Ed. candidates, it was found to be bereft of any logic and it was also found to diminish the criteria of merit. It was found that the present concession, which was being made for the B.Ed. qualified candidates giving priority to those, who have done B.Ed. earlier, is totally wrong and in violation of Article 14 of the Constitution of India. Also the criteria given in the advertisement for giving marks on the basis of the High School, Intermediate and Graduation was also found de hors the Rules. On the basis of said discussion, appellant / State Government was directed to hold examination in accordance with the Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012 (hereinafter referred to as the Rules) and, on the basis of that, the writ petition was allowed. Feeling aggrieved by the same that the Appeals, four in number, are before us.
4. We have heard the learned counsel Advocate General for the State of Uttarakhand / Appellants in Special Appeal No. 390 of 2014, Mr. Paresh Tripathi, learned counsel for the appellants in Special Appeal No. 411 of 2014, and also Mr. K.P. Upadhyay, Advocate for the petitioner.
5. The learned Advocate General would point out that the learned Single Judge has failed to consider that the advertisement was issued in order to fill up the vacancies of teachers by appointing B.Ed. degree holders. He would submit that under the Rules, made in the year 2012, originally, B.Ed. holders were not qualified. He drew our attention to the Rules, which were made in the year 2012. There was a shortage of qualified hands. There were B.Ed. degree holders, who were available. Originally, in fact, under the Right to
Education Act, enacted by the Parliament, the National Council for Teachers Education was made the competent body to decide the qualifications of teachers. It had made those qualifications by Notification dated 23.05.2010. As per the same, B.Ed. degree holders were enabled to be appointed till 31.01.2012 provided they had 50 per cent marks in graduation. There were proceedings, in fact, taken by the State of Uttarakhand for filling up vacancies by selecting B.Ed. degree holders. Applications were invited pursuant to advertisement dated 15.12.2011. There was a challenge to the same. The challenge was to the order dated 14.11.2011, which laid down the qualifications, pursuant to which, advertisement dated 15.12.2011 was issued. The challenge included the challenge to B.Ed. degree holders being arranged in the descending order, i.e. the earlier one getting the preference in comparison to the person, who acquired B.Ed. degree later. Learned Single Judge, it is pointed out, repelled, the challenge.
6. Though, there was an Appeal, in the Appeal, the issue was relating to district-wise selection. Whatever that be, the Government of Uttarakhand, struggling with shortage of teachers, approached the Government of India and the Government issued Government Order dated 27.10.2012, by which exercising power under Section 23, it extended till 31.03.2014 the power to make appointments from B.Ed. holders. It is on the basis of the same that under the executive order dated 14.11.2011, the persons’ selection was intended to be filled. In fact, it is pointed out by the learned Advocate General that there was a Government Order issued on 31.01.2014 laying down the parameters for selection and it was on the basis of that executive order that the impugned advertisement was issued. He points out that the Government Order dated 31.01.2014, which is the basis for the present advertisement, was not challenged by the petitioner and on that short ground, the writ petitions ought to have been dismissed. He further draws our attention to Part-10 of the Uttarakhand Government Elementary Education (Teacher) (Amendment) Service Rules, 2013.
7. He would submit that the perusal of the same would show that B.Ed. degree holders have been rendered qualified for being appointed till 31.03.2014 and selection was proceeded on the basis of the executive order, and there is nothing illegal in the selection. He does not purport to disturb the findings in regard to that part of the judgment, except which sets aside the B.Ed. degree holders being given priority on the basis of year passing the B.Ed. and also the provisions for calculating the marks.
8. Mr. K.P. Upadhyay, learned counsel for the petitioner, in response, would submit as follows. He would submit that the petitioner has challenged the advertisement and there is no need to challenge the Government Order dated 31.01.2014. He would further submit that as far as giving preference to B.Ed. degree holders, who have obtained the degree earlier in point of time is concerned, it is irrational and offen the mandate of Article 14 of the Constitution of India. Mr. K.P. Upadhyay, learned counsel for the petitioner would cite the following case law:
9. Learned counsel for the petitioner would refer to Krishan Chander v. Central Tractor Organisation reported in AIR 1962 SC 602. That was a case, where a ban was imposed on a government employee after his services were terminated in the matter of his employment under the Government. The Court took the view that his constitutional right in Article 16(1) was violated. Therein, the Court, inter alia, took the view that so long as the ban subsisted, any application made by the petitioner for employment would be treated as waste paper.
10. Next, he would rely on Ganga Ram and others Vs. The Union of India and others reported in (1970) 1 SCC 377. That was a case, where the petitioners were officiating Clerks Grade-I and they filed a petition claiming that seniority should be determined from the date of appointment as officiating Clerk, Grade I and not on the basis of their position in the Graduation List of Clerk, Grade II from which they were promoted. The Court took the view that the direct recruits and the promotees like the petitioners clearly constitute different
6
classes and the classification was based on intelligible differentia which has a reasonable connection with the object of efficiency.
11. Learned counsel for the petitioner then sought assistance also from the decision of the Hon’ble Apex Court in the case of Ram Ganesh Tripathi and others Vs. State of U.P. and others reported in AIR 1997 SC 1446. This is to canvass the position that when selection is being done contrary to Rules, it is liable to be quashed.
12. Learned counsel for the petitioner then relied on the decision of the Hon’ble Apex Court in the case of K. Kuppusamy and another Vs. State of T.N. and others reported in (1998) 8 SCC 469. In this case, the Hon’ble Apex Court took the view that statutory Rules cannot be overridden by the executive order or executive practice. That is a case, where the Court took the view that the Government merely because it had taken a decision to amend the statutory rules, could not act contrary to the extant Rules and the executive order cannot override the statutory Rules. A perusal of the judgment does not show what was the relief what was sought for before the Tribunal and whose order was set aside by the Hon’ble Apex Court.
13. Learned counsel for the petitioner then relied on the decision of the Hon’ble Apex Court in DDA and others Vs. Joginder S. Monga and others reported in (2004) 2 SCC 297. In this case, the Hon’ble Apex Court, inter alia, held as follows: “It is not a case where a conflict has arisen between a statute or a statutory rule on the one hand and an executive instruction, on the other. Only in a case of such a conflict, the former will prevail over the latter.”
14. Next, the learned counsel for the petitioner relied on the decision of the Apex Court in Om Prakash Shukla Vs. Akhilesh Kumar Shukla and others reported in 1986 (Supp) SCC 285. In paragraph 24, the Hon’ble Apex Court, inter alia, held as follows:
“24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the
7
candidates in the district of Kanpur also. They were not responsible for the conduct of the examination.”
15. Learned counsel for the petitioner would point out that it is not a case where the petitioner had appeared for any examination or a case where the writ petition was filed only after realising certain failure in the examination. Petitioner had merely applied. There is no examination.
16. In fact, the learned counsel for the petitioner sought to draw support from the judgment of the Hon’ble Apex Court in the case of Radhey Shyam Singh and others Vs. Union of India and others reported in (1997) 1 SCC 60. That is a case, where in a recruitment, zonewise separate merit lists were prepared by the Subordinate Services Commission on the basis of examination conducted in various zones. The Court took the view that there is violation of Articles 14 and 16 and equal chance for equal marks was not observed. This is also a case, where a perusal of Paragraph 5 would show that the Tribunal dismissed the claim of the appellants on the basis of the decision in 1986 Supp SCC 285, which we have already adverted to and found that the appellant had also appeared in the examination. The Court, however, finding violation of Articles 14 and 16 also proceeded to hold as follows:-
“10. The argument advanced by the learned counsel for the respondents that this process of zonewise selection has been in vogue since 1975 and has stood the test of time cannot be accepted for the simple reason that it was never challenged by anybody and was not subjected to judicial scrutiny at all. If on judicial scrutiny it cannot stand the test of reasonableness and constitutionality it cannot be allowed to continue and has to be struck down. But we make it clear that this judgment will have prospective application and whatever selections and appointments have so far been made in accordance with the impugned process of selection shall not be disturbed on the basis of this judgment. But in future no such selection shall be made on the zonal basis. If the Government is keen to make zonewise selection after allocating some posts for each zone, it may make such scheme or rules or adopt such process of selection, which may not clash with the provisions contained in Articles 14 and 16 of the Constitution of India having regard to the guidelines laid down by this Court from time to time in various pronouncements. In the facts and circumstances of the
8
case we make no order as to costs. The appeals and writ petitions are allowed as indicated above.”
17. Mr. K.P. Upadhyay would submit that the earlier practice, notwithstanding ultra vires action may not be supported.
18. As far as the advertisement being ultra vires to the statutory Rules is concerned, he would reiterate the submissions and submit that Part-10 was added to the Rules, in fact, to cater to the persons, who were already selected pursuant to the advertisement, which was issued earlier in 2011. He drew our attention, in particular, to Rule 31(3) and he would submit that actually, Rule 31(3) would make it clear that it is intended to facilitate the appointment of persons, who were selected earlier on the basis of certain executive orders, at a time when the Rules were not in force. But after the statutory Rules were promulgated, he would pose the question, as to how executive orders could override the statutory Rules.
19. Learned Advocate General would point out that apart from the fact that the basic order dated 31.01.2014 has not been challenged, as to how the learned Single Judge could have directed the selection to be made in terms of the statutory Rules, which, in essence, was contained in Rule 15 of the 2012 Rules. Rule 15 of the 2012 Rules reads as under:-
“15. (1) After advertising the vacancies in news papers, the appointing authority shall invite applications from the candidates possessing prescribed training qualification from the district concerned and shall scrutinize the applications received against advertisement and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment:
Provided that for the candidate for appointment to the post referred in clause 9(a) of rule 6 for teaching Urdu, Bachelor’s degree with Urdu as one of the subject or a Master’s degree with Urdu is essential:
Provided further that to test special ability to teach in specific language such as Urdu, the selection committee shall arrange a written examination which shall be of 100 marks. In written examination the candidate will be required to write an essay on a current topic in the language in respect of which the post is to be filled. Minimum pass
9
marks in written examination will be 50 percent and the candidate who will get the minimum pass marks will be eligible for appointment. A candidate who obtains less than fifty percent marks in the written examination shall be disqualified for appointment.
(2) For such female candidate whose home district is changed because of marriage after selection in the training, Regional Additional Education Director (Basic) of the concerned region on her application can order to add the name of such female candidate in her new home district which may be different district of her training.
(3) The name of candidates in the list prepared under sub-
rule (1) shall be arranged in the descending order of
qualifying marks obtained in Teacher Eligible Test
(T.E.T.).
(4) No candidate shall be eligible for appointment unless his name is not included in the list prepared under sub-rule (1) and (3).
(5) This list prepared under sub-rule (1) and (3) shall be forwarded by the appointing authority to the Selection Committee.”
20. Rule 15 was amended in 2013. After amendment, Rule 15 (3) reads as follows:
“(3)
The name of candidates in the list prepared under sub-rule
(1) shall be arranged in the descending order of the total of 60
percent of the percentage of marks obtained in BTC / D.El.Ed
and 40 percent of the percentage of marks obtained in TET-1.
”
21. He would point out that a perusal of Rule 15(3), as was amended in the year 2013, would show that it really provided that 60 per cent marks was to be allocated for B.T.C. / D.El.Ed in preparation of the list. He posed the question as to how the direction by the learned Single Judge could be implemented. He would submit that it is not open to the Court to add words to a Statute. It is submitted that the learned Single Judge has not considered these aspects. Learned Advocate General submitted that the learned Single Judge, if he disagreed with the reasoning of another learned Single Judge, he should have referred the matter to a larger Bench.
22. The response of Mr. K.P. Upadhyay to this is that indeed the
fact is that selection is for B.Ed. holders and since Rule 15(3) has to
be applied, the marks obtained in B.Ed. in place of marks obtained in
10
B.T.C. must be taken into consideration. He would also submit that at
any rate, the marks obtained (40 per cent) for TET which is applicable
to B.Ed. degree holders also can be looked into and the list prepared.
He does not fairly dispute that a
casus
-
omissus
is to be rarely supplied
by the Court, but he would submit that this may be a case, where it
may have to be done. At any rate, he would submit that the Court
cannot sustain the arrangement of B.Ed. degree holders in the order of
the year, in which the B.Ed. degree was obtained. When he was asked
as to whether there was any pleading in support of this contention that
there is violation of Article 14 of the Constitution of India, he
submitted that the matter is palpable. No fact finding is necessary and
it is a question of merely applying the principles of Article 14 to the
given fact situation.
23. Mr. K.P. Upadhyay also drew our attention to amendment brought about in the Statutory Rules in the year 2014.
24. He would, therefore, point out that the Rule making authority must be intended as governing the selection of the teachers in the on going process by making it clear that Sub-Rules (2) and (3) of Rule 15 will apply and, therefore, the matter was beyond the region of doubt.
25. The response of the appellants is that the said proviso relates to the appointment of Urdu Teachers and, also, they pose the question as to how the amendment, which has no retrospective effect, could affect the selection pursuant to the impugned advertisement.
26. Learned Advocate General drew our attention to judgment of the Apex Court in the case of Ramesh Chandra Shah and others Vs. Anil Joshi and others reported in AIR 2013 SC 1613. That is a case, where the Apex Court took the view that having taken part in selection with full knowledge that the recruitment is being made under the General Rules, the respondents had waived their right to question the advertisement or the methodoogy adopted by the Board for making selection to the post of Physiotherapist. The contention, which found acceptance, was that the respondents had taken a chance
11
to be selected in the test conducted by the Board on the basis of the advertisement. It was a case, where they had appeared in the written examination and taken a chance to be declared as successful. The Court held, inter alia, in para 18 as under:-
“18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.”
27. The Hon’ble Apex Court, in the above case, referred to Manak Lal v. Dr. Prem Chand AIR 1957 SC 425, Dr. G. Sarna v. University of Lucknow (1976) 3 SCC 585, Om Prakash Shukla v. Akhilesh Kumar Shukla (1986) Supp SCC 285, Madan Lal v. State of J & K (1995) 3 SCC 486, (2010) 12 SCC 576.
28. Learned Advocate General would point out, in response to the contention of the learned counsel for the petitioner, that the petitioner had not come to the Court after participating in the examination and this is not a case, where principle laid down in AIR 2013 SC 1613 will apply as the petitioner had merely applied and he had, at any rate, approached the Court at the earliest that there is no examination contemplated under the advertisement, the criteria based on which the selection was to be done was indicated clearly in the advertisement, which was made pursuant to the Government Order dated 31.01.2014. There is only a question of application of criteria. Therefore, the petitioner when he applied pursuant to the advertisement must be taken to be aware that he was subjecting himself to the selection process as provided in the advertisement and, therefore, it is not necessary that there should be an examination or interview after which if a party comes alone, the principle laid down in AIR 2013 SC 1613 would apply.
29. Per contra, the learned counsel for the petitioner would contend that the petitioner is from a remote area, he only applied and he has approached the Court and, therefore, the application must be taken to have been made accompanied by protest. Petitioner have approached not having failed to get selected.
12
30. The following questions would arise in our view:-
(I) What is the effect of Rule 31(3)?
(II) What is the effect of the petitioner not challenging the order dated 31.01.2014?
(III) What is the effect of the amendment to the Statutory Rules in the year 2014?
(IV) Whether the preference given to B.Ed. degree holders of years offends Article 14 of the Constitution of India?
(V) What is the effect of the petitioner applying pursuant to the advertisement?
31. In order to appreciate the contentions and render our decision in the matter, it is necessary to examine the historical background, which has led to the impugned advertisement.
Parliament enacted The
Right
of
Children
to
Free
And
Compulsory
Education
Act, 2009. Acting under Section 23 (1) of the said Act,
the National Council for Teacher Education, in short NCTE,
brought out Notification dated 23.08.2010. It appears to have been
published on 25.10.2010. As per the same, for appointment of
teachers for Classes 1 to 4, the minimum qualifications were
prescribed as Senior Secondary or its equivalent with at least 50 per
cent marks and two year Diploma in Elementary Education by
whatever name known among various other qualifications.
Paragraph 3, which is relevant for our purpose, provided as follows:
“3. Training to be undergone.-A person-
(a) With BA/B.Sc. with at least 50% marks and B.Ed. qualification shall also be eligible for appointment for class I to V upto 1
st
January, 2012, provided he undergone, after appointment, an NCTE recognized 6-month special programme in Elementary Education.
(b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6-month special programme in Elementary Education.”
32. In fact, the essential qualification, which was being followed apparently under The U.P. Basic Education Act, 1972, was graduation with B.T.C. The U.P. Basic Education Act, 1972 would appear to have been repealed under Section 60 of the Uttarakhand School Education Act. The latter Act came into force in the year
13
2006. The National Council for Teachers Education Act, 1993 had been enacted in 1993 for achieving planned and coordinated developments. Section 23 of the 2009 Act reads as follows:
“Qualifications for appointment and terms and conditions of service of teachers.—
(1) Any person possessing such minimum qualification, as laid down by the academic authority by the Central Government, by notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:
Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.
(3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may be prescribed.”
33. It was pursuant to Clauses (1) and (3) of the Notification dated 23.08.2010 that the order dated 14.12.2011 came to be issued. It, inter alia, provided for Bachelors’ degree from college / university established under law in India, which was recognized by the UGC and who has obtained eligibility for B.Ed / B.Ed. Special Education from an Institute recognized by the National Council of Teacher Education. It further provided that, to be eligible, a person must have passed the Teacher Eligibility Test held by the State Government or the Central Government for Class 1 to 5. Clause 8, inter alia, provided for process of the selection / counseling. Being crucial to resolution of our dispute, we extract the same:-
“(8) Process of Selection / Counselling:-
Entire selection process shall be carried out by the Principal, District Education and Training Institute / District Resource Centre under the supervision and direction of the District Education Officer. Selection shall
14
be made on the basis of seniority of training year and merit of quality points as under.
(b) Name of the candidates will be placed, on the basis of the total quality point marks obtained in TET and the Education and training qualification, in descending order as per seniority of their year of training. However, if the year of training and the quality points of two candidates are the same, the candidate senior in age will be given preference. Calculation of quality points would be as under:-
1. High School
The percentage of Marks X 0.75
10
2. Intermediate
The percentage of Marks X 1.5
10
3. Graduation
The percentage of Marks X 2.25
10
4. Training B.Ed / D.Ed. (Special Education)
5. Theory
The percentage of Marks X 3
10
6. Practical
The percentage of Marks X 1.5
10
7. T.E.T.
The percentage of Marks X 1
10
Combined Seniority List shall be prepared at the State level and the districts shall be allotted to the candidates on the basis of options.”
34. Thereafter, the order provides for six months special training after posting in the district-wise schools. The State Level Counseling / Selection Committee was to consist of (A) Additional Director, SCERT, Narendra Nagar, (B) Principal, DIET nominated by the Director, Elementary Education; (C) Joint Director, SCERT, (D) one member belonging to SC / ST nominated by the Director Academic Research and Training and (E) the Deputy Director, SCERT, who was to be Member Secretary. After successful completion of training programme approved by the NCTE, the candidate shall be given selection by the Appointing Authority of the allotted district under the provisions of the Uttarakhand Primary Education Service Act, 2012 being amended from time to time. It was pursuant to the same that the advertisement dated 15.12.2011 came to be issued and a batch of writ petitions came to be filed, which were heard by the learned Single Judge. The learned Single
15
Judge directed, inter alia, to proceed with the selection and appointment of teachers in accordance with the advertisement dated 15.12.2011 and complete the process at the earliest. This is by judgment dated 8
th
May, 2012. There was an intra-Court Appeal being Special Appeal No. 360 of 2012, wherein the Court was persuaded to hold that the advertisement and the conditions so far as it imposes a restriction of ‘place of residence’ is bad and was declared as violative of Article 16 to the Constitution.
35. While so, in the year 2012, the State of Uttarakhand brought out with Uttarakhand Government Elementary Education (Teachers) Service Rules, 2012 under Notification dated 28.08.2012 in exercise of the powers under proviso to Article 309 of the Constitution of India and in continuation of the power under Section 58 of the Uttarakhand School Education Act, 2006. The following provisions being relevant, we will refer to the same. Rule 3(a) defines the Appointing Authority. The same reads as under:
“3.(a) ‘Appointing Authority’ means Deputy Education Officer (Elementary Education) in case of Assistant Teacher, Government Primary School / Attached Primary School and District Education Officer (Elementary Education) in case of Head Teacher, Government Primary School, Assistant Teacher, Government Upper Primary School / Government Model School and Head Teacher of Government, Upper Primary School / Government Model School.”
36. ‘Government Primary School’ is defined in Rule 3(p) to mean a school imparting education from class I to V. ‘Government Upper Primary School’ has been defined in Rule 3(l) to mean a school imparting education from class VI to VIII. ‘Selection Committee’ is defined in Rule 3(t) to be the Selection Committee constituted under rule 16 and sub-rule (1) of rule 19. ‘Teacher’ is defined in Rule 3(w) to mean Assistant Teacher / Head Master / Head Mistress of Government Primary School, Government Upper Primary School, Government Model School and Attached Primary School.
16
37. Rule 4 of the 2012 Rules reads as follows:
“4. These rules shall apply to :-
All ‘teachers employed in Government Primary Schools, Government Upper Primary Schools, attached Government Primary Schools and Model Schools in Rural Local Area and Urban Local Area, as mentioned in section 58 of Uttarakhand School Education Act, 2006.”
38. The ‘source of recruitment’ is provided in Rule 6, which reads as under:-
6. The procedure of recruitment to the various categories of posts mentioned below shall be as follows:--
(a)
Assistant Master / Mistress Government Primary School / Attached Government Primary School.
By direct recruitment as provided in rules 14 and 15.
(b)
Head Master / Head Mistress Government Primary School
By promotion as provided in rule 18
(c)
Assistant Master / Assistant Mistress Government Upper Primary School / Government Model School
By promotion as provided in rule 18
(d)
Head Master / Head Mistress Government Upper Primary School / Government Model School
By promotion as provided in rule 18.
39. Rule 7 deals with age; Rule 8 provides for the nationality qualifications.
40. Since we are concerned with only the appointment to the post of Assistant Teachers in a Primary School (Class I to V), we extract 9(a) of the 2012 Rules as follows:
Sl. No.
Post
Educational Qualification
(a)
Assistant Master / Assistant Mistress Government Primary School / Attached Government
(i) Graduate from the University established by law in India:
Provided that for appointment of Assistant Teacher (Urdu) graduations with Urdu as a main subject shall be compulsory.
17
Primary School (Class I-V)
(ii) Two years Diploma in Elementary Education (D.El.Ed.) known as B.T.C. in Uttarakhand from the concerned District Institute of Education and Training / District Resource Centre.
and
Must have passed the Teacher Eligibility Test (TET), conducted by the State Government / Central Government in accordance with the Guidelines framed by the NCTE for the purpose.
41. Rule 9(b) deals with Assistant Master, etc. for Classes VI to VIII. Part-V deals with procedure for recruitment. Rule 14 deals with determination of vacancies. The Appointing Authority has to determine the number of vacancy and also the number of vacancies to be reserved for candidates belonging to Scheduled Caste, Scheduled Tribe, Other Backward Classes and to intimate to the Selection Committee.
42. Rule 15, on which the petitioner, has built up his case, has already been extracted above.
43. The ‘Selection Committee’ is provided in Rule 16. It is to consist of Principal, District Institute of Education and Training / District Resource Centre as Chairman; District Education Officer (Elementary Education) as Member; A Class-II Officer nominated by the Chief Education Officer as Member; the Deputy Education Officer (Elementary Education) of the concerned Block as Member Secretary; An officer from any department of the District nominated by the District Magistrate as Member. It provides for nomination of an officer belonging to the Scheduled Castes / Scheduled Tribes, Other Backward Classes or the Minority Community to the State of Uttarakhand then by the District Magistrate. Under Rule 17, the Selection Committee under Rule 16 is to consider the candidates on the basis of list referred to in sub-rules (1) and (2) of Rule 15 and prepare a list of selected candidates in the order, in which their
18
names appear in the merit list. If two or more candidates have equal merit points, the name of the candidate, who is senior in age, shall be placed higher in the list. The selection committee, thereafter, is to scrutinize the certificates. It has to prepare a waiting list of candidates of each category having not more than 25% of the total vacant posts. The Committee is to forward the list prepared to the Appointing Authority. Part-VI deals with the procedure for recruitment by promotion, with which we are not concerned. Part-VII deals with appointment, probation, confirmation and seniority. Rule 20, in particular, is relevant as it provides as follows:
“20. (1) The appointing authority shall appoint the candidates in the order they stand in the list prepared under rule 15.
(2) If more than one appointment orders are issued against one selection, a combined order bearing the names of the persons selected in order of seniority as determined in the select list as it stood in the cadre from which they are promoted shall also be issued.
(3) All appointments are made under these rules shall be in written.”
44. Rule 21 provides for probation and Rule 22 deals with confirmation, while Rule 23 provides for seniority. Rule 23 reads as follows:
“23. (1) Except as hereinafter provided, the seniority of persons in any category of post shall be determined according to the Uttarakhand Government Servants Seniority Rules, 2002. The seniority of persons in any category of post shall be determined from, the date of the orders of substantive appointment and if two or more persons are appointed together, by such order in which their names are arranged in the appointment order:
Provided that the appointment order specifies a particular back date with effect from which a person substantively appointed, that date, will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of issue of the order:
Provided further that if after a selection, more than one appointment orders are issued, the seniority shall be such as, is mentioned in the combined appointment order issued under sub-rule (2) of rule 20.
19
(2) The Seniority inter se of persons appointed directly on the result of any selection shall be the same as determined by the Selection Committee:
Provided that a candidate recruited directly may lose his seniority if he fails to join the post offered, without valid reasons and his appointment will also be cancelled.
(3) The Seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted.
(4) The name of the persons, appointed through direct recruitment on the posts mentioned clause (b) of under rule 9 shall be placed just below the last name of the combined seniority list of the Head Teacher Government Primary School and Assistant Teacher Government Upper Primary School / Government Model School, who are promoted just before the substantive appointment of the persons appointed through direct recruitment.”
45. Rule 27 provides as follows:
27. In regard to the matters not specifically covered by these rules of special orders, persons appointed to the Service shall be governed by the rules, regulations and orders, applicable generally to Government servants serving in connection with the affair of the State.”
46. It is after this that another development took place and that is noticing the shortage of trained teachers and the availability of B.Ed. degree holders, the State of Uttarakhand made a request to NCTE to invoke its power under Section 23 of the 2009 Act. The NCTE found favour with the request and issued proceeding dated 17.10.2012. As per the same, the NCTE extended till 31.03.2014 right of a B.Ed. degree holder to be appointed as an Assistant Teacher in Primary School. The relevant portion of the said Notification issued by the Government of India reads as follows:
“NOW THEREFORE, in exercise of the powers conferred by sub-section (2) of section 23 of the said Act, the Central Government hereby relaxes in respect of the State of Uttarakhand, the minimum qualifications laid down by the Council under sub-section (1) of section 23 of the said Act in so far as they relate to classes I to V, and allows persons referred to in sub-clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, eligible for appointment as teacher for classes I to V beyond the 1
st
January, 2012, subject to fulfillment of the conditions specified under the said sub-clause.
20
2. The relaxation granted under this notification shall be valid for a period upto the 31
st
March, 2014, subject to fulfillment of following conditions, namely:-
(i) the State Government shall conduct the Teacher Eligibility Test as specified in the said notification as amended from time to time, in accordance with the Guidelines for conducting Teacher Eligibility Test, under the said Act, issued by the Council vide its letter dated the 11
th
February, 2011 and those persons who pass the Teacher Eligibility Test be considered for appointment as teacher in classes I to VIII;
(ii) the State Government and other school managements shall amend the recruitment rules relating to appointment of teachers so as to provide for the minimum qualifications required for appointment of teachers, laid down under the said notification as amended from time to time;
(iii) the State Government shall in the matter of appointment of teachers give priority to those eligible candidates who possess the minimum qualifications specified in the said notification as amended from time to time and thereafter consider other candidates eligible with the qualifications referred to in sub-clause (a) of clause (i) of paragraph 3 thereof;
(iv) advertisement for appointment of teachers shall be given wide publicity, including outside the State;
(v) the State Government and other school managements shall ensure that teachers employed or engaged by them who possess the minimum qualifications referred to in sub-clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, under go, after appointment, a National Council for Teacher Education (NCTE) recognized six month Special Programme in Elementary Education;
(vi) the relaxation specified in this notification shall be one-time and no further relaxation under sub-section (2) of Section 23 of the said Act shall be granted to the State of Uttarakhand; and
(vii) the State Government shall take steps to increase the institutional capacity for preparing persons with specified qualifications so as to ensure that only persons possessing qualifications laid down under the said notification are appointed as teachers for classes I to V after the 31
st
March, 2014.
3. The persons referred to in sub-clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, shall also be eligible for appearing in the Teacher Eligibility Test conducted by the State Government in respect of teacher appointments made in the State up to 31
st
March, 2014, in accordance with sub-paragraph (iii) of paragraph 5 of the guidelines for conducting Teacher Eligibility Test under the said Act issued by the Council vide its letter dated the 11th February, 2011.”
47. Apparently, it was in compliance of the same that an amendment was carried out making the B.Ed. degree holders qualified as will be seen hereinafter.
48. The Rules came to be amended in the year 2013. By virtue of the amendment, as far as the Assistant Teacher in Primary School covered by Rule 9 (a) is concerned, the provisions as substituted after the amendment, reads as follows:
Sl. No.
Post
Educational Qualification
(a)
Assistant Master / Assistant Mistress Government Primary School / Attached Government Primary School (Class I-V)
(i) Graduate from the University established by law in India:
Provided that for appointment of Assistant Teacher (Urdu) graduation with Urdu as a main subject shall be compulsory.
(ii) Two years Diploma in Elementary Education (D.El.Ed.) known as B.T.C. in Uttarakhand from the concerned District Institute of Education and Training / District Resource Centre.
OR
SHIKSHA MITRA (para teacher) working in Government Primary School and has passed two years D.El.Ed. Course from Indira Gandhi National Open University (IGNOU).
OR
(iii) Must have qualified the Teacher Eligibility Test (TET-I) for Class I-V conducted by the State Government / Central Govt. in accordance with the guidelines framed by the NCTE for the purpose.
49. Under the Note, which relates to post in 9(b), we notice that B.Ed. is introduced. Under the same amendment, Part-10 under the heading ‘Trainee Teacher’ was also introduced. The English translation of the Rules as was made available to us reads as follows:-
“Part-10 Trainee Teacher
22
After Rule 30 of part 9 to make existing provisions as it is mentioned in the Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012, the provisions of part 10 shall be substituted as follows:-
31 (1) A candidate for direct recruitment must have attained the age of 21 years and must not have attained the age of more than 40 years on the first day of July of the calendar year in which the vacancies are advertised:
Provided that for those trainees teachers selected according the Government Order No. 1283/XXIV(1)/2011-28/2010 dated 14
th
December 2011, the maximum age may be relaxed up to three years for all categories.
31(2)
Sl. No.
Post
Educational qualification
(a)
Assistant Master / Assistant Mistress Government Primary School / Attached Government Primary School (Class I-V)
1. B.Ed. qualified trainee teacher will be eligible upto 31.03.2014, according the para 3rd of notification no. 215 dated 25-08-2010 and amended notification no. 158 dated 02-08-2011 of NCTE and also as the notification no. 2515 (E) dated 17-10-2012 of Govt. of India.
2. Qualified-Teacher Eligibility Test (TET-1) for Class I-V conducted by the State Government / Central Govt. in accordance with the guidelines framed by the NCTE for the purpose.
31(3) The trainee teacher selected in accordance with notification dated 25-08-2010 and amended notification dated 02-08-2011 of NCTE and GO no. 1283/XXIV(1) /2011-28/2010 dated 14 December 2011 will be eligible for appointment as Asstt. Master / Asstt. Mistress in Government Primary School / Attached Government Primary School and their seniority and reservation shall be same as in their selection list as a trainee teacher.
32. The trainee teacher must pass a six month special programme in elementary education recognized by NCTE as mentioned in the notification dated 25-08-2010 and amended notification dated 02-08-2011 of NCTE. Periodical increment shall not be sectioned until and unless
23 the trainee teacher not pass successfully six month special training.”
50. It is on the basis of the same apparently that the Government issued the order dated 31.01.2014. English translation of the order, insofar as it is relevant is referred to hereunder:-
“No. 149/XXIV(1) / 2014-28/2010
Sender,
S. Raju,
Principal Secretary,
Uttarakhand Government.
To,
The Director,
Primary Education, Uttarakhand,
Nanukhera, Dehradun.
Education Department 1 Basic Dehradun: Dated 31
st
January, 2014.
Subject: For selection of B.Ed. Eligible Candidates, having qualified the Teachers’ Eligibility Test (TET-1), for being appointed in the Government Primary Schools on the post of Assistant Teacher.
Sir,
Kindly take reference of your letter No. Pro.Shi.Seva 2/30200/B.Ed. Appnt./2013-14 dated 21.01.2014.
2. It is to be brought to the notice that under the Right to Education Act, 2009, vide the notification dated 23
rd
August, 2010 as well as the modified notification dated 29
th
July, 2011, issued by the N.C.T.E. which is an Institute of the Government of India, under Section 3, the candidates have obtained the requisite educational and training eligibility and the Teachers’ Eligibility Test (TET-I), as per the provisions mentioned in the Notification no. 2512-E dated 17.10.2012 of the Government of India, there is a provision for appointment of Assistant Teachers in the Government Primary Schools with the condition that after the appointment, it would be necessary for such candidates to qualify a special training course of six months from the NCTE approved institutes.
3. For the appointment of B.E.D. and T.E.T. approved candidates, vide the government order issued earlier no. 1283/XXIV (1) 2011-28/2010 dated 14.12.2011, the prescribed district-wise selection process was challenged before the Hon’ble High Court, Nainital and the Hon’ble High Court in the judgment dated 25.11.2013 passed in Special Appeal No. 380 /2010, did not find the district-wise selection process, to be justified. As such, the directions issued from time to time as also in view of the modified provisions under the Uttarakhand Government Primary Education Service Teachers Services Regulation, 2012, before making appointments of these candidates, it would be required to
24
select them on the basis of a joint seniority list at the State level. After selection, on the basis of submission of their option as also on the basis of their seniority, the districts shall be allotted to the candidates so that as per the provisions of the Regulations, the Appointing Authority can provide the appointment on the basis of cadre.
4. Hence, the department-wise resolutions, the sanction for selection process of the candidates having been passed the Teachers Eligibility Test (TET-1) /B.Ed. qualified candidates, is being granted on the post of Assistant Teacher in the Government Primary School to be performed under the following directions.
(1) Education & Training Eligibility:
As per the prescribed standards of National Teachers Education Council, the educational and training eligibility are as under:-
1. Bachelors’ Degree from the established College / University established under the law in India / University which is recognized by the University Grants Commission and who has obtained the eligibility of B.Ed./B.Ed. Special Education from an Institute being recognized by the National Teachers’ Education Council.
2. For the Teachers of Class 1 to 5, who have qualified the Teachers Entrance Test from Uttarakhand Government or the Central Government.
(2) Age of candidates:-
As on 1
st
July, 2013, the date of a candidate should be minimum 21 years and maximum 40 years but in case of scheduled caste and scheduled tribe and that of other backward class candidates, there would be age relaxation of five years in maximum age limit, but in any condition, a candidate of more than 50 years of age on the cut off date, would not be entitled for appointment.
(8) Selection Process:-
The entire selection process shall be performed under the guidance / supervision of the Additional Director, State Educational Research & Training Council, Uttarakhand, Dehradun. The selection training shall be done on the basis of seniority and merit of marks. The calculation of marks shall be done as under:-
A. The names of candidates shall be kept in the order of total marks received in the Educational Training Eligibility and Teachers Eligibility Test and those shall be kept in descending order on the basis of seniority of training year. But if the total marks and training year of two candidates is the same, then the seniority in age shall be given preference for the selection of a candidate. The calculation of marks shall be done as under:-
Serial No.
Exam/ Name of Degree
Marks
1
High School
Percentage of Marks x 0.75/10
25
2
Intermediate
Percentage of Marks x 1.5/10
3
Graduation
Percentage of Marks x 2.25/10
4.
Training B.Ed./D.Ed. Special Education /B.Ed. Special Education A. Theoretical
B. Practical
Percentage of Marks x 3/10
Percentage of Marks x 1.5/10
5
Teachers’ Eligibility Test: I-V)
Percentage of Marks x 1/10
Joint Seniority List shall be prepared at the State level and the districts shall be appointed to the candidates on the basis of options.
B. Against the total number of vacancies available in a district, the selection of 50 percent shall be from science side and the selection of 50 percent science category candidates shall be done under the prescribed rules.
C. Whatever the information mentioned in the application forms received from the candidates, on its basis only, the Seniority List shall be prepared. Along with the application form, the Teachers’ Education Test being organized by the Uttarakhand Government or the passed mark-sheet of C.T.E. for Class 1 to 5, the passed out mark-sheets of High School, Intermediate, Graduate examination and B.Ed./Special Education / D.Ed. Special Education issued from a recognized Board / College/ University and the caste certificate issued by the competent authority and the copy of special reservation certificate shall be submitted self-attested. The waiting list in excess for more than 25 percent shall be prepared separately.
D. The entire prescribed eligibility should be complete by the concerned candidates by the last date of applying in the advertisement.
E. The verification of the documents of the selected candidates shall be got done by the Appointing Authority from the Institutes issuing such certificate. In case of finding any difference in verification, the selection / enquiry / appointment / training, at any stage, the candidature of the candidate shall be cancelled and the legal action shall be initiated against the candidate by lodging a first information report against him.
(9) Six months’ Special Training:-
After selection, the candidates shall be sent for six months’ training in the District Education & Training Institute of the concerned district wherein three months’ practical training shall be required to be received by the applicant in the college of his posting.
(10) Committee for State Level Selection:-
1. Additional Director, State Educational Investigation & Training Council, Uttarakhand Head.
26
2. Principal, District Education & Training Institute.
Member nominated by the Director, Academy of Investigation and Training.
3. Joint Director, State Educational Institute & Training Council, Uttarakhand. Member.
4. One Officer Member of Scheduled Caste/ Scheduled tribe being nominated by the Director of Academy, Research & Training.
5. Deputy Director, State Educational Investigation & Training Council, Uttarakhand- Member Secretary.
(11) Original Appointment:-
After the State level selection, the candidates shall be given selection by the Appointing Authority of the allotted district under the provisions of the Uttarakhand Government Primary Education Teachers’ Service Act, 2012, being amended from time to time.
(12) The district-wise expected number of vacancies (which can be increased / decreased) are as under:-
Serial No.
Name of District
Allotted Seats
1
Uttarkashi
660
2
Chamoli
60
3
Rudraprayag
50
4
Haridwar
46
5
Pauri Garhwal
86
6
Dehradun
70
7
Tehri Garhwal
100
8
Almora
120
9
Udham Singh Nagar
130
10
Bageshwar
86
11
Pithoragarh
110
12
Champawat
50
13
Nainital
0
Total
980
51. It is on the basis of the same that the impugned advertisement has been issued dated 01.02.2014. It is appropriate to notice that it is clear on the basis of the provisions as contained in the Government Order dated 31.01.2014 that the provisions are modeled in particular on Clause (8) of order dated 14.11.2011. Yet we must refer to one last development, which took place and that is the enactment of the amendment, which is brought about. English translation of the same was made available to us. The relevant portion of the amendment is reproduced as under:
“1. Amendment of Part.10 rule 1(Age Limit)—In place of existing provision in rule 31 of the Uttarakhand
27
Government Education (Teacher) Service Rules, 2012, the following provision shall be substituted-
For direct recruitment the age of a candidate should be anywhere from 21 to 42 years as on 1
st
July of the calendar year in which posts are advertised.
2. Amendment of Part 10 rule 3- In place of the existing provision in Part 10 rule 3 in column 1 below rule 31 of the Uttarakhand Government Elementary Education (Teacher) (Amendment) Service Rules, 2013, the following provision in column 2 shall be substituted-
Under the provisions of the notification dated 25-08-2010 and the amended notification dated 02-08-2011 of the National Council for Teacher Education, the candidates possessing B.Edand T.E.T (I-V) shall be eligible for appointment on the post of Assistant Teacher, government primary schools uptil 31
st
March, 2014.
Provided that in the event candidates with training qualification as per rule 9(a) (2) of the Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012 are not available, candidates having B.Ed. from a university established by Law in India and also NCTE recognized T.E.T. (1-V) shall also be eligible for appointment to the post of Assistant Teacher (Urdu), government primary school upto 31
st
March 2014. Clauses 2 and 3 under rule 15 (1) shall continue to be applicable to such selection.
After the State level selection appointment will be given to these candidates by the Deputy Education Officer of the concerned Development Block.”
52. The amendment came into force on 05.03.2014, on which day, it came to be published as it is specifically provided that it shall come into force with immediate effect.
53. We have already set out the factual legal background leading up to issuance of the advertisement. The impugned advertisement was issued exclusively to select the primary school teachers from among those, who had B.Ed. Before the promulgation of the Rules, as we have already noticed, by an executive order dated 14.12.2011, apparently based on the Notification dated 23.08.2010 published by the National Council for Teacher Education, B.Ed. Degree Holders were also enabled to be appointed till 31.01.2012. The selection was challenged. The challenge was repelled by the learned Single Judge of this Court, but at that time, there were no statutory Rules as such. By order dated 17.10.2012, the Government of India again
28
extended the time till 31.03.2014 for appointing the persons with B.Ed. qualifications. A perusal of the same would show that it was conditioned upon the amendment of the Rules. In 2013, the Rules came to be amended. Under Rule 31(2), B.Ed. Degree Holders were rendered qualified for appointment till 31.03.2014. Rule 31(3) provides that trainee teachers, who were selected pursuant to order dated 14.11.2011 shall be eligible to be appointed under the Rules. According to the learned counsel for the petitioners, thus, the position is that the petitioners being B.Ed. Degree Holders became qualified to be appointed on the basis of the decision of NCTE. Rule 31(3) is exclusively meant for those teachers, who were selected pursuant to the executive orders mentioned therein and it is not meant to regulate or control the selection in question.
54. On the other hand, even finding merit in the said argument, we cannot overlook the following features present in this case. Persons passing B.Ed. could be appointed till 31.03.2014 going by the provisions of Rule 31(2). Rule 31(2) if it is understood as referring to the posts and the qualification necessary for the appointment to the post could be said to not as such comprehend also the method of selection to the post. This brings us to the question as to whether the method of selection contemplated under the Rules or the method, which is provided in the order dated 31.01.2014, which is the basis of the advertisement, should prevail. It is in this context that the omission on the part of the petitioners to challenge the Government Order dated 31.01.2014 assumes prominence.
55. It is settled law that even a decision or an order, which may be void as being ultra vires must be questioned and its voidness either got declared or suitable other reliefs sought in this regard. We may refer to the decision of the Hon’ble Supreme Court in the case of State of Punjab and others Vs. Gurdev Singh reported in (1991) 4 SCC Page 1, wherein the Apex Court has held as follows:
“8. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or court. In Smith v. East
29
Elloe Rural District Council Lord Radcliffe observed: (All ER p. 871)
“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”
9. Apropos to this principle, Prof. Wade states: “the principle must be equally true even where the ‘brand’ of invalidity” is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court. Prof. Wade sums up these principles:
“The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the ‘void’ order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another.”
56. This principle has been followed also in subsequent decisions and it is sufficient to notice Krishnadevi Malchand Kamathia and others Vs. Bombay Environmental Action Group and others reported in (2011) 3 SCC 363, wherein the Court, inter alia, held as follows:-
“Even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. Whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
Once an order is declared non est by the court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
Even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the
30
court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.”
57. No doubt, the learned counsel for the petitioner Mr. K.P. Upadhyay drew our attention to the judgment of the Hon’ble Apex Court reported in Bharatidasan University Vs. All India Council for Technical Education and others reported in (2001) 8 SCC 676. Therein, the Hon’ble Apex Court, no doubt, was considering the question whether the Regulation made purporting to be under Section 10 of the AICTE Act could be said to have been made within the scope of its powers. The Court, inter alia, held as follows:
“14. The fact that the Regulations may have the force of law or when made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party is sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It would, therefore, be a myth to state that Regulations made under Section 23 of the Act have “constitutional” and legal status, even unmindful of the fact that any one or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the Regulations in question, which AICTE could not have made so as to bind universities / UGC within the confines of the powers conferred upon it, cannot be enforced against or bind a university in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions.”
31
58. There is also a case for the learned counsel for the petitioner that this is a case, where the petitioner has challenged the advertisement and the provisions are the same, wherein the provisions in the order are incorporated. Before we proceed to finally pronounce on this issue, it also becomes necessary to go into the question, whether there is ultra vires or at least whether we could unambiguously or without the shadow of doubt hold that the order is clearly opposed to the Rules and the Government is prohibited from making selection based on the order. In this connection, we must, first of all, notice that under the Rules, the Selection Committee consists of the Principal, District Education & Training Institute / District Resource Centre as Chairman, District Education Officer (Elementary Education) as Member; a Class II Officer nominated by the Chief Education Officer as Member; the Deputy Education Officer (Elementary Education) of the concerned Block as the Member Secretary; and an officer from any department of the District nominated by the District Magistrate; whereas in this case, the committee for State Level Selection under Clause (11) of order dated 31.01.2014 is to consist of (1) Additional Director, State Educational Investigation & Training Council, Uttarakhand Head, (2) Principal, District Education & Training Institute as Member nominated by the Director, Academy of Investigation and Training, (3) Joint Director, State Educational Institute & Training Council, Uttarakhand as Member, (4) one officer who is the Member of Scheduled Caste / Scheduled Tribe being nominated by the Director of Academy Research & Training and (5) the Deputy Director, State Educational Investigation & Training Council, Uttarakhand is to be the Member Secretary. Therefore, the Selection Committee constituted under the Rules and the order, and the advertisement is completely different. This is an indication that the selection is not being made as such under the Rules. The petitioners have not raised any complaint about that nor has the learned Single Judge pronounced on the same. This means that the petitioners accept
32
selection is to be done by a Committee other than as contemplated under the Rules.
59. Further more, the more important aspect is, if the selection is done strictly under Rule 15(3), the name of candidate in the list prepared is to be arranged in the descending order of the total of 60% of the percentage of marks obtained in B.T.C. / D.EL.ED and 40% of the percentage of marks obtained in T.E.T. We have noticed already that this is a selection being done exclusively for persons, who have B.Ed. qualifications. What the Rule 15(3) would indicate, inter alia, is that the list is to be prepared on the basis of 60% marks obtained in B.T.C/ D.El.Ed. That qualification has absolutely no relevance for this selection. Rule 15(3) in fact becomes unworkable as such if it is to be applied for B.Ed. Degree Holders. In other words, it is not possible as Rule 15(3) stands to provide for a list to be prepared in the descending order of the total of 60% of marks obtained in B.T.C. / D.El.Ed when selection is being made from the B.Ed. Degree Holders. On the face of it, therefore, the said Rule cannot be operated in this selection.
60. No doubt, the learned counsel for the petitioners when confronted with this position initially made an attempt to persuade us to substitute the word “B.Ed.” in place of “B.T.C./D.El.Ed”. We found this submission as ill-founded as that would amount to the Court encroaching into the province of the law-giver. Faced with this situation, he would then submit that 40% marks obtained for T.E.T. could be the basis. We would think, that would involve truncation of the Rule, which would again be ultra vires as the Rules would stand not complied with. If the Rule is to be applied, the Rule must be applied as it stands. When the Statute says that the thing must be done in a particular manner, then if it is applied, it must be done in that manner. We have undertaken this exercise of examining the logical culmination of accepting the petitioners’ argument, which apparently found favour with the learned Single Judge that the impugned advertisement is ultra vires the Rules, including Rule 15. As the Rule stands, there is no scope of applying
33
the Rules. It is in this context, therefore, we must appreciate the contention of the appellants that there is no challenge to the Government Order, which provided for a different method of selection, which we have already noticed. We may also notice that it was this very method of selection, which gained acceptance at the hands of the learned Single Judge when the selection process was set in motion by advertisement dated 15.12.2011. Apparently the State wished to apply the very same yardstick to the selection of B.Ed. Degree Holders, be they selected earlier pursuant to advertisement issued in 2011 or subsequently in the year 2014.
61. In this context, we must notice the argument of the learned counsel for the petitioner that the case law submitted by the learned Advocate General to the effect that the person, who participates in a selection, cannot resile from the terms of the selection will not apply.
62. It is noted that this is not a case, where there is any examination or interview as such under the selection process. The Advertisement was issued on 01.02.2014. The petitioner applied pursuant to the same within the specified time. Even without having perused the order dated 31.01.2014, under which the Advertisement was issued, quite obviously the terms of the advertisement spelt out a completely different method of selection besides a different selection body from the Rules. It is with eyes wide open that the petitioner applied. On the one hand, while it may be true that it is a case, where the petitioner did not participate in an examination or interview and realizing failure therein, he turns around and challenges the selection, but it is, at once, pertinent to note that there is no examination or interview involved in this process under the advertisement. What is involved is application of the criteria to the applicants and preparation of the list as provided therein and that is where the learned Advocate General would argue that the fate of the petitioner would be known on the basis of the criteria being applied to him and it is known to him and the petitioner must be treated as having applied and, thereafter, it is not open to resile from that
34
position and seek to challenge the provisions. We notice that the case law, which is submitted before us, invariably involved a selection process containing examination and interview; petitions were filed after petitioners having sat on the fence and gambled for a favourable decision and things being otherwise, seeking to overturn the selection process. But, at the same time, we cannot disregard the nature of the selection process involved in this case. It does not involve any examination or interview. Therefore, in this case also, the petitioner by his conduct disentitled himself from claiming relief. But we would not like to rest our decision essentially on this as we would think we are on surer foundations in the nature of discussion we have made in the preceding paragraphs, about the nebulous foundations for the plea of ultra vires itself and in which circumstances, absence of a challenge to the foundational order, namely, the order dated 31.01.2014, which is specifically referred to in the advertisement and the ground taken in the counter affidavit (though the order is allegedly not produced), would be sufficient in our view to disentitle the petitioner from grant of any relief.
63. There is no doubt, the plea of the petitioner that even applying the provisions relating to the marks as contained in the advertisement and executive order and, also, disregarding the Rule 15(3) as amended, the Court may sustain the striking down of preparation of the list based on descending order of the year in which B.Ed. degree was obtained. This is on the plea of Article 14 which found favour with the learned Single Judge. Though, we scanned the pleadings, we found no case at all built by the petitioner based on violation of Article 14 in the writ petition. There is no serious dispute regarding absence of pleadings, but the case set up is that it is a question of law and application of principles of Article 14 to the given admitted fact situation and no objection could be taken due to lack of pleadings. We are afraid this approach is difficult to sustain. Article 14 frowns upon unreasonable classification and also permits reasonable classification. Likewise Article 14 strikes at arbitrariness in State action. But we must remember that in regard
35
to the very same matter, another learned Single Judge has already in a batch of writ petitions sustained the principle of B.Ed. degree holders being arranged in the order of seniority in obtaining the B.Ed. degree. No doubt, we notice that the Division Bench in Special Appeal No. 360 of 2012 held that even though the petitioner therein had applied for the post of Primary School Teacher as he had prayed that his candidature be considered for selection to the post from other district besides his home district, the decision in (2008) 4 SCC Page 171 would not apply. It is also found that the petitioner had raised the matter of extreme importance as there is violation of the fundamental rights alleged. We may notice in this case that there is no case of fundamental rights’ violation set up by the petitioner and while we are not oblivious of the principle that the fundamental rights cannot be waived as held by the Hon’ble Apex Court in Basheshar Nath v. Commr. of Income-tax, Delhi reported in AIR 1959 SC 149, however, in the absence of any case as such for the petitioner based on fundamental rights, such a principle would not apply. The Division Bench did not disturb the findings of the learned Single Judge repelling challenge to the arranging of persons with B.Ed. on the basis of the year of acquisition of B.Ed. Violation of Article 14 in our view at least in the facts of this case should not have been found by the learned Single Judge, when the petitioner did not even have such a case as such. Is violation of Article 14 admitted by the other side? The answer is obviously in the negative. There is a logic also, which is offered to sustain the year-wise preference given to the B.Ed. degree holders, which found favour with this Court once. It is not a matter, which was entirely free of ambiguity or in the region of being indisputable. In such circumstances, we feel that the petitioner not having challenged the order dated 31.03.2014 which provides for a different method and which was the basis of the advertisement and which also contained the very same provision cannot at any rate be permitted to be challenged the matter on the basis of violation of Article 14. We
36
have already noticed that the Rule 15(3) is inapplicable. The selection committee is different.
64. Regarding the amendment to the Rules brought about in March, 2014 in the very first place, the proviso appears to refer to selection of ‘Urdu teachers’ and, according to the respondents, the selection does not relate to ‘Urdu teachers’ as such. The reference to sub-rules (2) and (3) of Rule 15 being applicable to the said selection appears in the proviso. No doubt, the learned counsel for the petitioner would point out that the main provision itself provides for appointment to primary teachers from among the B.Ed. degree holders, and therefore, the Rules will apply. He would also, no doubt, point out that the permission, as granted by NCTE, would expire on 31.03.2014 and he posed the question, if it is not meant to be applied to this selection, what is its relevance. There is a response by the appellants by pointing out that there can be future extension given. We have already referred to the fact that the petitioner has not challenged the Government Order. The Government Order appears to comprehensively provide for selection by a different agency and a different method. That apart, we cannot overlook the salutary principle that after the selection process set in motion, a change cannot be brought about in the method of selection. The amendment does not operate with retrospective effect from the date of issuance of the impugned advertisement. On the other hand, the amendment would come into force only in March, 2014, which means it would have prospective effect.
65. The upshot of the above discussion is that we cannot sustain the judgment of the learned Single Judge, except insofar as the learned Single Judge frowns upon reservations to sportspersons and Rajya Andolankaris. We sustain the judgment to the extent that reservation in favour of sportspersons and Rajya Andolankaris has been frowned upon. Except as aforesaid, the judgment of the learned Single Judge will stand set aside. In the circumstances of the
37
case, the Appeals stand disposed of as above. There will be no order as to costs.
66. Let a copy of this judgment be issued today itself.
(V.K. Bist, J.) (K.M. Joseph, C.J.)
22.09.2014 22.09.2014
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