State
Of Rajasthan & Anr Vs. Kulwant Kaur [2006] Insc
235 (25 April 2006)
S.B.
Sinha & P.P. Naolekar S.B. Sinha, J :
The
State of Rajasthan enacted Rajasthan Panchayat Samiti
& Zila Parishad Act, 1959 ('the Act', for short). The Respondent was
appointed as a Grade-III teacher on 25.11.1983 by the Panchayat Samiti, Padampur.
The terms and conditions of her appointment were governed by Rajasthan Panchayat
Samitis & Zila Parishad Service Rules, 1959 ('the Rules', for short). The
Schedule appended to the said Rules lay down the conditions for appointment,
including basic educational qualification, as also the eligibility criteria therefor
which read as under:
S.No.
Name
of the Post and pay scale Source of Recruitment with percentage _____________
Direct By Recruit- pro ment motion Qualifica- tion and experience for direct
recruit- ment Promotion _____________ Post Qualifi- from cation/ which Expe-
promo- rience tion for will be promo- consi- tion dered Remarks 5.
Primary
School Teacher 100% - Senior Secondary with basis STC course - - Candidates who
possessed Secon- dary or Hr. Seco- ndary examina- tion prior to 1990 shall also
be eligible The minimum qualification required for the post of Primary School
Teacher was the Matriculation and Basic Short Training Certificate (BSTC)
course. The services of the Respondent were terminated in the year 1984 but she
was reappointed on a temporary basis. The Director, Primary and Secondary
Education issued a circular directing termination of the services of temporary
teachers who possessed only diploma in Tailoring. The services of the
Respondent pursuant to the said circular had also been terminated, relying on
the said circular by the appellant herein, by an order dated 11.5.1987. She
filed a writ petition before the Rajasthan High Court wherein an order of stay
was passed. She was allowed to continue in service in view of the said order of
stay. The question as to whether, having regard to the fact that the
authorities of the State Government themselves had not been sending the
Assistant Teachers for training, some directions were issued by the High Court
to the effect that the services of such teachers should not be terminated, but,
they should be sent for obtaining the requisite training.
The
question as to whether the National Training Certificate in Tailoring or any
other craft should be treated to be equivalent to Short Training Certificate or
not, came up for consideration of this Court in State of Rajasthan vs. Shyam Lal
Joshi & Ors. [(1994) 1 SCC 593], wherein the relevant rule, which is as
under, was noticed:
"Secondary
with Basic School Training Certificate (BSTC) or a training qualification
recognized as equivalent to BSTC by State Government." This Court held:
"
A distinction has to be drawn between a general teacher who has received
complete training and is in a position to teach all the subjects and a teacher
who has received training in a particular craft and can, therefore, properly
teach that particular craft only. Under the relevant rules for appointment to
the post of Primary School Teacher it is necessary to have BSTC or a training
qualification recognised as equivalent to BSTC by the State Government. The
BSTC course is a two years' training course wherein the training is given in
various subjects. The NTC is granted by the ITI after a course of training in a
particular craft. By order dated November 8, 1979, the State Government recognised the NTC given by ITI for
teaching vocational subjects in Secondary Schools in certain specified crafts,
namely, wood work, tailoring, leather work and spinning & weaving. This
recognition is limited to teaching the aforesaid vocational subjects only. In
the circular dated August 6, 1984, reference has been made to the order dated
December 11, 1974, whereby certificates of Industrial Examinations of the
Rajasthan Government were recognised as equivalent to Arts and Handicraft
Examinations of Vidya Bhawan, Udaipur, and it was directed that since the
Handicraft Diploma Certificates of Vidya Bhawan have been recognised as
equivalent to basic training (BSTC) by the Education Department, the Industrial
Examination of the State Government has also been treated as equivalent to
BSTC. The said circular does not run counter to the limited nature of
recognition granted to NTC by order dated November 8, 1979. This was clarified by circular
dated January 7, 1985 wherein it has been stated that the
NTC holders have been given recognition to teach industrial subjects in the
secondary schools for conferring NTC and that candidates holding NTC are not
eligible for the post of teachers in the Panchayat Samities. The last circular
dated November 6, 1985 only gives effect to the directions
contained in the earlier circular dated January 7, 1985. It would thus appear that limited
recognition was given to NTC by order dated November 8, 1979 in the matter of
teaching vocational subjects of the certificate and the subsequent circulars
dated August 6, 1984, January 7, 1985 and November 6, 1985 do not detract from
that position. The circular dated August 6, 1984 cannot be construed as giving a fresh recognition to NTC
and, therefore, the question of withdrawal of recognition granted earlier by
the subsequent circulars dated January 7, 1985
and November 6, 1985 does not arise. The principle of
promissory estoppel is not attracted and the decision of this Court in Suresh
Pal v. State of Haryana1 on which reliance has been placed
by the High Court, also has no application.
In
view of the limited recognition that has been granted to NTCs the holders of NTCs
cannot claim appointment as general teachers and can only be appointed to the
post of craft teachers in the craft for which they hold the NTC. For teaching
subjects other than the craft for which they hold the NTC the position of the
holder of NTC is no different from that of an untrained teacher. The need for
appointment of properly trained teachers has been emphasised by this Court in
Andhra Kesari Educational Society v. Director of School Education2 wherein it
has been observed: (SCC p. 399, para 20) "It is, therefore, needless to
state that teachers should be subjected to rigorous training with rigid
scrutiny of efficiency. It has greater relevance to the needs of the day.
The
ill-trained or sub-standard teachers would be detrimental to our educational
system; if not a punishment on our children."" In view of the said
decision of this Court, the services of all the teachers who did not possess
the requisite qualification were directed to be terminated by an order dated
7.4.1994. It is not clear as to whether any order to that effect was served on
the Respondent. Only on 31.5.1995 an order of termination was served on her.
She again filed a writ petition, which was marked as W.P. No.2973/94 before the
High Court challenging the said order of termination. An interim order of stay
was passed therein.
Pursuant
to or in furtherance of the said interim order of stay, she continued in
service.
Ultimately
both her writ petitions, namely, W.P.Nos.2973/94 and 1383/87 were dismissed by
a learned Single Judge of the High Court by an order dated 22.8.1995. Letters
Patent Appeals were preferred thereagainst by the Respondent No.1 and by reason
of the impugned judgment, the Division Bench of the High Court directed:
"For
the foregoing circumstances, we are of the opinion that the appellant is
entitled to a direction as made in Neera Joshi's case, Loomb Singh's case. We
therefore, quash the order of termination and direct the Government to
determine whether the qualifications possessed by the appellant entitles her to
be continued in service and in the event of coming to the conclusion that the
appellant does not possess the requisite qualification, to give her training as
had been done in other cases and on her successful completion of the training,
regularize her services. We direct the State Government to determine
Appellant's qualification with a period of two months from the date of receipt
of this judgment and proceed further in accordance with law.
The
High Court noticed that the appointments have been given to the teachers on
contract basis but they did not acquire the qualification in the meantime. The
High Court furthermore noticed that the State has issued a circular on
30.8.2000 in relation to the teachers who underwent the service training and
acquired qualification as vocational teachers for the purpose of grant of
promotion.
The
High Court, however, did not notice that Rules of 1959 were substituted by
Rajasthan Panchayati Raj Rules, 1996, wherein the educational qualification of
temporary teacher was laid down in the following terms:
S. No.
Name
of the Post and pay scale Source of Recruitment with percentage ___________
Direct By Recruit- pro- ment mo- tion Qualifica-tion and experience for direct
recruit-ment Promotion _____________ Post Qualifi- From cation/ Which Expe-
Promo- rience tion will for be con- pro sidered motion Rema- rks 5.
Primary
School Teacher 100%
-
Senior Secondary
under New (10+2) Scheme or Higher Secondary under Old Scheme from Rajas- than
Board of Secondary Education or equivalent.
-
B.S.T.C. Course.
It is
beyond any controversy that the Respondent herein did not pass the Senior
Secondary Examination. She was, therefore, asked to enhance her qualification
by a letter dated 4.12.2003 stating:
"Your
aforementioned examination result has been declared on the condition that
result of second year Teachers Training (Correspondence Course will not be
declared until you pass the minimum qualification of Higher Secondary
Examination or its equivalent examination.
However,
during the pendency of this special leave petition, she was directed to undergo
training and it is not disputed that she had completed the same.
Mr. Aruneshwar
Gupta, learned counsel appearing on behalf of the appellant would submit that
in view of the decision in Shyam Lal Joshi (supra) and further more, having
regard to the amendments made in the Rules within the year 1996, the Respondent
being not possessed of the essential educational qualification, the impugned
judgment cannot be sustained.
Mr.
Manu Mridul, learned counsel appearing on behalf of the Respondent, on the
other hand, would submit that in equity her services should not be directed to
be terminated as she had been continuing therein pursuant to the interim orders
passed by the High Court for a long time. It was also submitted that that there
are large number of teachers who have been allowed to continue in service
despite the fact that they were similarly situated.
The
services of the Respondent had been terminated on the ground that she lacked
essential educational qualification. The High Court passed an interim order in
her favour. Such orders were being passed on the ground that the State had been
making discrimination amongst the teachers in the matter of sending them for
obtaining training; such in-service training being permissible. However, we are
not concerned with such a situation in this case.
The
Respondent herein did not possess the requisite qualification.
Only
because the order of termination of service of Respondent was directed to be
stayed and in obedience of the interim orders passed by the High Court, she was
allowed to continue in services, the same, in our opinion, can not lead to the
conclusion that she had been validly holding the post or the order of
termination was bad in law. After Shyam Lal Joshi (supra), it is not disputed
that the teachers were required to possess a Short Training Certificate. As the
respondent did not possess such essential qualification, she has no legal right
to continue in service. The orders of termination passed, both in 1987 and
1994, which were the subject matter of the Writ Petition No.1383/87 (being
against the order dated 11.5.87) and Writ Petition No.2973/94 (being against
the order dated 31.5.1994), cannot, thus, be held to be bad in law.
In Mohd.
Sartaj & Anr. vs. State of U.P. & Ors. [2006 (1) SCALE 265], this Court
clearly held that possession of an essential educational qualification was
mandatory for obtaining the right to continue in the post.
A
legal right in this behalf cannot be said to be derived by an employee only
because an interim order was passed by the High Court.
Actus
Curiae neminem gravabit is a well known maxim. The orders passed by the
appellant could not, thus, have been directed to be set aside by the High Court
on the grounds stated therein. The High Court did not arrive at a finding that
the Respondent was possessed of basic essential qualification, both as regard
general education as well as the training.
It is
also not a case where equity is in favour of the Respondent. Only because an
interim order was passed in favour of the Respondent, the same would not mean
that despite the fact that she did not possess requisite qualifications, her
services would be allowed to continue. Even the old Rules were not applicable
in her case. The matter would have been different had she acquired the
requisite qualification prior to issuance of order of termination in 1994.
Admittedly, she had not by then completed her training. Even at that point of
time, she was not possessed of the Short Training Certificate. Her services
had, thus, rightly been terminated and in that view of the matter, purported
acquisition of qualification by her in 1996 would be of no significance.
For
the reasons afore-mentioned, the impugned judgments cannot be sustained, the
same are set aside. The appeals are allowed.
No
costs.
Back
