Basic
Education Board, U.P. Vs. Upendra Rai and Others [2008] Insc 171 (12 February 2008)
H.
K. Sema & Markandey Katju
CIVIL
APPEAL NO. 8034 OF 2001 [with Civil Appeal Nos. 3998/2002, 153/2003, 1207/2006,
2796/2006, 4784/2006, Civil Appeal Nos/2008 (arising out of SLP(Civil) Nos.
4819/2002, 9289/2002 & 20337/2002] MARKANDEY KATJU, J.
1.
Delay condoned.
2.
Leave granted.
3.
Since a common question of law is involved in the appeals filed by the State of
U.P., Civil Appeal No.8034/2001 Basic
Education Board, U.P. vs. Upendra Rai and others is taken as the leading case
for consideration in dealing with these appeals. Civil Appeal No. 8034/2001 has
been filed against the impugned judgment and order dated 18.2.2000 passed by a
Division Bench of the High Court of Judicature at Allahabad in Special Appeal
No. 25 of 2000 by which the Learned Division Bench set aside the judgment of
Learned Single Judge dated 7.12.1999.
4.
Before the Learned Single Judge the challenge was to the advertisement dated
28.4.1999 and the Government Circular dated 11.8.1997. The Learned Single Judge
dismissed the writ petition, but in appeal the Division Bench set aside that
judgment and also the impugned Government Circular and the advertisement and
allowed the appeal. Against the judgment of the Division Bench, this appeal has
been filed by special leave.
5. The
question in this case and the connected appeals is about the qualification of
the respondent for being appointed as Assistant Master in Junior Basic Schools
in U.P. The essential academic qualification prescribed for the post of
Assistant Master or Assistant Mistress of Junior Basic Schools in U.P. is
mentioned in Rule 8 of the U.P. Basic Education (Teachers) Service Rules, 1981
(hereinafter referred to as the Rules) which have been framed under the U.P.
Basic Education Act, 1972.
6. At
the relevant time the said qualification mentioned in Rule 8 was Intermediate
Examination of the Board of High School and Intermediate Education, Uttar
Pradesh or any other qualification recognized by the Government as equivalent
thereto together with training qualification consisting of a Basic Teacher
Certificate, Hindustani Teacher Certificate, Junior Teacher Certificate,
Certificate of teaching or any other training course recognized by the
Government as equivalent thereto.
7. A
perusal of Rule 8 shows that there are two essential requirements for being
appointed as Assistant Master or Assistant Mistress of Junior Basic Schools,
these are
(a)
Intermediate Certificate of the Board of High School and Intermediate
Education, UP (which was later substituted by an amendment of Rule 8 by
prescribing bachelor's degree instead of Intermediate Certificate);
(b)
Training qualification consisting of Basic Teachers Certificate (BTC),
Hindustani Teachers Certificate, Junior Teachers Certificate or Certificate of
Teaching or any other training course recognized by the Government equivalent
thereto.
8. In
the present case, we are concerned with the second essential requirement viz.,
training qualification.
9.
Admittedly, the respondent in Civil Appeal No. 8034/2001 (Upendra Rai) only
holds a Diploma in Education (in short D.Ed.) which was awarded to him after he
completed two years' course from DIET Jabalpur in M.P. He does not hold any of the certificates of training
qualification referred to in Rule 8 of the Rules.
10. It
was submitted by learned counsel for the writ petitioner (respondent in this
appeal) before the High Court that the aforesaid D.Ed. certificate awarded by
the DIET, Jabalpur was earlier recognized as
equivalent to BTC of U.P. However, even if that is so, we find that its
equivalence (if it existed at all) to BTC has been, admittedly, rescinded by
the U.P. Government Circular dated 11.8.1997.
11.
The aforesaid U.P. Government Circular dated 11.8.1997 has been annexed as
Annexure P-5 to this appeal. This Circular dated 11.8.1997 was written by the
Secretary, Basic Education, U.P. Government to the Director of Education
(Basic) & Chairman, Basic Shiksha Parishad, U.P. In this Circular it is
mentioned in paragraph 2 that it has been decided by the Government after
sufficient consideration that in accordance with the provisions of the Uttar
Pradesh Basic Education (Teachers) Service Rules, 1981 the posts of Assistant
Teachers in the primary schools of the Board be filled up only with those
candidates who are trained in U.P. Government Training Institutes and possess
BTC or Hindustani Teaching Certificate or teaching certificate of Junior
Teachers or Teacher. It was also specifically mentioned in the aforesaid
circular dated 11.8.1997 that equivalence to BTC granted earlier to other
certificates was cancelled with immediate effect.
12.
The aforesaid circular in Hindi is reproduced below :
"la[;k&2657/15.5.97-127/97
Vh0 lh0 iszid] Jh vkyksd jatu lfpo] csfld f'k{kk mRrj izns'k 'kkluA lsok es] f'k{kk
funs'kd <cs0=] y[kuEA ,oa v/;{k] f'k{kk ifj"kn] m0 iz0 y[kuEA f'k{kk
<5=&vuqHkkx y[kuE % fnukad 11.08.1997 fo"k; % m0 iz0 csfld f'k{kk ifj"kn
}kjk lapkfyr fo|ky;ksa esa v/;kidksa dh fu;qfDr ds lEcU/k esaA egksn;] mi;qZDr fo"k;d
vkids v)Z'kkldh; i= la0 cs0 f'k0 i0 537/97-98 fnukad 14.4.97 dh vksj vkidk /;ku
vkdf"kZr djrs gq;s eq>s ;g dgus dk funs'k gqvk gS fd ch0 Vh0 lh0 ds
led{k ekurs gq;s dfri;
'kklukns'kksa
ds }kjk fofHkUu izf'k{k.k izek.k-i=@mikf/k izkIr vH;fFkZ;ksa dks m0 iz0 csfld f'k{kk
ifj"kn }kjk lapkfyr fo|ky;ksa ls lgk;d v/;kid ds in ij fu;qfDr gsrq vgZ ekuk
x;k gSA ifj"knh; fo|ky;ksa esa Hkkjh la[;k esa fjfDr;ksa rFkk izns'k esa miyC/k
ch0 Vh0 lh0 izf'k{k.k vH;fFkZ;ksa dks /;ku esa j[krs gq;s m0 iz0 csfld f'k{kk ifj"kn
v/;kid lsok fu;ekoyh esa lkrosa la'kks/ku }kjk fu;qfDr dh izfX;k ds dfri; la'kks/ku
fd;s x;s gSaA o"kZ 1995 ls jk"V* h;
v/;kid
f'k{kk ifj"kn~ }kjk fofHkUu izf'k{k.k laLFkkvksa dks ekU;rk iznku djus ds lEcU/k
esa foLr`r fn'kk funsZ'k fuZxr fd;s x;s gSa ftuds vkyksd esa vc fofHkUu f'k{kd izf'k{k.k
vgZrkvksa ds lEcU/k esa Fks iquZfopkj dh vko';drk gks x;h gSA
2. mDr
ds vkyksd esa 'kklu }kjk lE;d~ fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd vc izns'k ds
ifj"knh; izkFkfed fo|ky;ksa esa lgk;d v/;kid ds inksa ij fu;qfDr gsrq m0
iz0 csfld f'k{kk <v/;kid= lsok fu;ekoyh] 1981 ds izkfo/kkuksa ds vuqlkj mYkj
izns'k ljdkj }kjk lapkfyr laLFkkvksa ls izf'kf{kr ch0Vh0lh0 rFkk fgUnqrkuh
v/;kid izek.k-i=] twfu;j v/;kid izek.k- i= ,oa v/;kid izek.k-i= izkIr vH;fFkZ;ksa
ls gh Hkjk tk;A rFkk ch0Vh0lh0 ds leku vU; izf'k{k.k ikB~;Xeksa ,oa mikf/k;ksa dks
iznku dh x;h led{krk;sa rkRdkfyd izHkko ls fujLr dj nh tk;A
3. vuqjks/k
gS fd d`I;k 'kklu ds vi;qZDr vkns'kksa dk dM+kbZ ls vuqikyu lqfuf'pr djkus ,os ifj"knh;
fo|ky;ksa esa lgk;d v/;kid ds fjDr inksa dks m0 iz0 csfld f'k{kk <v/;kid= lsok
fu;ekoyh] 1981 ds izkfo/kkuksa ds vuqlkj ch0Vh0lh0 rFkk fgUnqLrkuh v/;kid izek.k-i=]
twfu;j v/;kid izek.k-i= ,oa v/;kid izek.k-i= izkIr vH;fFkZ;ksa ls gh Hkjs tkus
dh dk;Zokgh djus dk d"V djsaA tgka dgha ekuuh; U;k;ky;ksa }kjk ikfjr vkns'kksa
ds vuqlkj dk;Zokgh visf{kr gks ml ij rn~uqlkj dk;Zokgh dh tk;s rFkk mls 'kklu ds
laKku esa rRdky yk;k tk;sA Hkonh;] vyksd jatu lfpoA"
13. We
are concerned here with the second paragraph of the aforesaid circular.
14.
The respondent admittedly got appointment after the Circular dated 11.8.1997
and hence this Circular applies to him. Admittedly, the respondent does not
possess the qualification mentioned in the said Circular.
He does
not either possess BTC, Hindustani Teaching Certificate, JCT or Certificate of
Teaching. The D.Ed. Certificate is no longer regarded as equivalent to BTC
after the circular dated 11.8.1997. This was a policy decision of the U.P.
Government, and it is well settled that the Court cannot interfere with policy
decisions of the Government unless it is in violation of some statutory or
constitutional provision. Hence, we are of the opinion that the respondent was
not entitled to be appointed as Assistant Master of a Junior Basic School in U.P.
15.
Grant of equivalence and /or revocation of equivalence is an administrative
decision which is in the sole discretion of the concerned authority, and the
Court has nothing to do with such matters. The matter of equivalence is decided
by experts appointed by the government, and the Court does not have expertise
in such matters. Hence it should exercise judicial restraint and not interfere
in it.
16.
Learned counsel for the respondent, however, submitted that the respondent has
the requisite qualification in view of the National Council For Teacher
Education Act, 1993 (hereinafter referred to as the NCTE Act).
He has
invited our attention to various provisions of the said Act. In particular he
has referred to Section 2(m) of the NCTE Act which states as under:
"(m)
"teacher education qualification" means a degree, diploma or
certificate in teacher education awarded by a University or examining body in
accordance with the provisions of this Act;"
17.
Learned counsel also submitted that the NCTE Act overrides the UP Basic
Education (Teachers) Service Rules 1981 in view of Article 254 of the
Constitution read with Entry 25 of List III of the Seventh Schedule to the
Constitution.
18.
Learned counsel submitted that if a person has the qualification mentioned in
section 2(m) of the NCTE Act he has the necessary qualification for being
appointed as an Assistant Master or a Teacher in any educational institution in
India. We regret, we cannot agree.
19. A
perusal of the NCTE Act shows that this Act was made to regulate the teachers
training system and the teachers training institutes in the country. It may be
mentioned that there are two types of educational institutions
(1) ordinary
educational institutions like primary schools, high schools, intermediate
colleges and universities and
(2) teachers'
training institutes. The NCTE Act only deals with the second category of
institutions viz. teachers' training institutes. It has nothing to do with the
ordinary educational institutions referred to above.
Hence,
the qualification for appointment as teacher in the ordinary educational
institutions like the primary school, cannot be prescribed under the NCTE Act,
and the essential qualifications are prescribed by the local Acts and Rules in
each State. In U.P. the essential qualification for appointment as a primary
school teacher in a Junior Basic School is prescribed by Rule 8 of the U.P.
Basic Education (Teachers) Service Rules, 1981 which have been framed under the
U.P. Basic Education Act, 1972. A person who does not have the qualification
mentioned in Rule 8 of the aforesaid Rules cannot validly be appointed as an
Assistant Master or Assistant Mistress in a Junior Basic School.
20.
Learned counsel for the respondent then referred to section 12(d) of the NCTE
Act which states that the National Council for Teacher Education established
under sub-section (1) of section 3 can lay down guidelines in respect of
minimum qualifications for a person to be employed as a teacher in schools or
in recognized institutions. He also invited our attention to section 14(1) of
the NCET Act which states as under:
"(1)
Every institution offering or intending to offer a course or training in
teacher education on or after the appointed day, may, for grant of recognition
under this Act, make an application to the Regional Committee concerned in such
form and in such manner as may be determined by regulations:
Provided
that an institution offering a course or training in teacher education
immediately before the appointed day, shall be entitled to continue such course
or training for a period of six months, if it has made an application for
recognition within the said period and until the disposal of the application by
the Regional Committee."
Sub-section
(5) of section 14 states as under:
"(5)
Every institution, in respect of which recognition has been refused shall
discontinue the course or training in teacher education from the end of the
academic session next following the date of receipt of the order refusing
recognition passed under clause (b) of sub-section (3)".
21.
Learned counsel has also referred to section 17(1) and (4) of the NCTE Act.
Under section 17(1) the Regional Committee if satisfied that a recognized
institution has contravened any provision of the Act or the rules and
regulations, it can withdraw recognition of such recognized institution after
giving opportunity of hearing. The consequences of withdrawal of such
recognition are given in section 17(4) which states as under:
"
(4) If an institution offers any course or training in teacher education after
the coming into force of the order withdrawing recognition under sub-section
(1) or where an institution offering a course or training in teacher education
immediately before the appointed day fails or neglects to obtain recognition or
permission under this Act, the qualification in teacher education obtained
pursuant to such course or training or after undertaking a course or training
in such institution, shall not be treated as a valid qualification for purposes
of employment under the Central Government, any State Government or University,
or in any school, college or other educational body aided by the Central
Government or any State Government".
22. It
may be mentioned that the word "institution" is defined in Section
2(e) of the NCTE Act to mean an institution which offers courses or training in
teacher education. Thus, the NCTE Act does not deal with the ordinary
educational institutions like primary schools, high schools, intermediate
college or university. The word "institution" as defined in Section
2(2) only means teachers' training institute and not the ordinary educational
institutions. Hence, it is only the teachers' training institutions which have
to seek grant of recognition or continuation of recognition from the Regional
Committee. The ordinary educational institutions do not have to seek any such
recognition or continuation under the NCTE Act. In fact, the NCTE Act does not
relate to the ordinary educational institution at all. We, therefore, fail to
understand how it can be said that the NCTE Act overrides the UP Basic
Education Act and Rules made thereunder. In fact, the two Acts operate in
altogether two different fields. The NCTE Act deals with the teachers' training
institutions while the UP Basic Education Act deals with the ordinary primary
schools in U.P. and not any teachers' training institute. The argument of
learned counsel for the respondent is thus wholly misconceived.
23.
The impugned judgment also proceeds with the same fallacy. The Division Bench,
in our opinion, wrongly relied upon Article 254 of the Constitution. Article
254, as stated above, has no application in this case at all because the two
Acts operate in two different fields. In our opinion, the Division Bench,
therefore, wrongly held that the respondent (the appellant before the Division
Bench) had the requisite qualification for being appointed as an Assistant
Master in a Junior Basic School.
24. In
our opinion the Division Bench also erred in holding that there was violation
of Article 14 of the Constitution. We see no violation of Article 14 by the
impugned circular or the advertisement dated 28.4.1999. This aspect of the
matter has been discussed in detail in the judgment of the learned Single Judge
of the High Court dated 19.12.1997 in writ petition no.33856 of 1997, Hira Mani
vs. District Basic Shiksha Adhikari connected with writ petition no.32184 of
1997 Smt. Kiran Kumari vs. State of U.P., and we see no reason to take a
contrary view. Hence, the view taken by the Division Bench, in our opinion, is
not correct.
25. In
view of the above, the impugned judgment of the Division Bench is set aside and
the writ petition filed before the High Court is dismissed. The appeal is
allowed. There shall be no order as to costs.
Civil
Appeal Nos. 3998/2002, 153/2003 & Civil Appeal Nos./2008(@ SLP(Civil) Nos.
4819/2002, 9289/2002 & 20337/2002)
26. In
view of the decision given above in Civil Appeal No. 8034/2001, these appeals
are allowed. There shall be no order as to costs.
Civil
Appeal No. 1207/2006
27.
Civil Appeal No. 1207 of 2006 was filed against the judgment of the Division
Bench of the High Court in Special Appeal No. 328 of 2001 which was dismissed
both on merits and on the point of limitation. In the special circumstances, we
condone the delay in filing the Special Appeal. The appeal is allowed in view
of the decision given above in Civil Appeal No. 8034 of 2001. There shall be no
order as to costs.
Civil
Appeal Nos. 2796/2006, 4784/2006
28. In
view of the decision given in C.A. No. 8034/2001, these appeals are dismissed.
There shall be no order as to costs.
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