Secretary, Board of
Basic Education,U.P. Vs. Rajendra Singh & Ors. [2009] INSC 219 (5 February
2009)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO. 844-846 OF 2002 SECRETARY, BOARD OF BASIC
EDUCATION, U.P ..... Appellant RAJENDRA SINGH & ORS. ....... Respondents ]
O R D E R Application
for impleadment allowed.
1.
Heard.
2.
These
appeals relate to recruitment to the post of Assistant Teachers in primary
schools run by the Board of Basic Education, Uttar Pradesh, regulated by the
U.P. Basic Education (Teachers Services) Rules, 1981 (`Rules' for short). The
qualifications prescribed in Rule 8 of the said Rules, for appointment to the
post of Assistant Master in Junior basic Schools are as follows :
"Assistant
Master and Assistant Mistress of Junior Basic Schools :
Intermediate
Examination of the Board of High Court and Intermediate Education, Uttar
Pradesh 2 or any other qualification recognized by the State Government as
equivalent thereto together with the training qualification consisting of a
Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's
Certificate, Certificate of Teaching or any other training course recognized by
the State Government as equivalent thereto."
3.
The
appellant Board (`Board' for short) issued an advertisement dated 18.1.1997
inviting applications for the posts of Assistant Teachers in its Basic Schools.
The said advertisement reiterated the aforesaid qualification of BTC, HTC, JTC
certificate of teaching or other training courses recognized by state
government as equivalent thereto, (prescribed under Rule 8) as eligibility
criterion for recruitment.
4.
The
private respondents in these appeals have undergone a one year Physical
Education Course and possess CPEd Certificates. The Basic Teacher's Certificate
and other qualifications prescribed under Rule 8 are two years training
Courses. The CPEd was never recognized by the State Government as equivalent to
either BTC, HTC or JTC prescribed as qualifications for the post of Assistant
Teachers/Masters.
5.
On
23.3.1995, the State Government issued a direction under Section 13 of the U.P.
Basic Education Act, 1972 (`Act' for short) to the Board that candidates
possessing CPEd Certificate could be appointed in the schools run by the Board
by treating them as untrained candidates and provide training to them during
the course of their employment. The said letter further directed that the pay
scale applicable to trained teachers should be extended to such appointees only
after they undergo training and necessary examination. The letter also informed
that the State Government had taken a decision to close training of the CPEd in
the State from the 1996-97 Session.
6.
The
State Government issued another direction dated 28.2.1996 under Section 13 of the
Act superseding the Government Order dated 24.8.1978 which had recognized the
CPEd Certificates issued by Shri Hanuman Vyayam Prasarak Mandal, Amravati,
Maharashtra as equivalent to CPEd Certificate issued by the State of Uttar
Pradesh.
Consequently, it was
informed that CPEd Certificate issued by the Amrawati Institute will not be
recognized.
7.
In
view of the directions contained in Government order dated 23.3.1995, the
applications from private respondents 4 who possessed only CPEd Certificates
were entertained for the post of Asstt. Teachers against the advertisement
dated 18.1.1997. The private respondents allege that a select list was also
prepared, which contained their names. The select list, was, however, not given
effect.
8.
On
11.8.1997, the State Government in supersession of the earlier orders, directed
that posts of Assistant Teachers in the Basic Schools run by the Board shall be
filled up, only by those candidates who are BTC trained from U.P. Government
Training Institutes or those possessing HTC/JCT/Teacher's Certificate. The said
order cancelled the equivalence given to other training courses. The said order
dated 11.8.1997 contains a specific direction that the appointment to the posts
of Assistant Teachers in the schools run by the Board shall be made only in
accordance with the Rules, by candidates possessing BTC/HTC/JCT/Teaching
Certificate. According to the government, the said direction dated 11.8.1997
was issued to give effect to the NCTE guidelines and the Rules. In view of the
said direction, the Board abandoned the process of selection commenced in
pursuance of the advertisement dated 18.1.1997 and issued a fresh advertisement
dated 17.8.1997 restricting the qualifications to what was stated in the
direction dated 5 11.8.1997. It also made it clear that those claiming the
benefit of equivalence or those with CPEd Certificate were not eligible for the
post of Assistant Teachers.
9.
Some
of the CPEd candidates from Amrawati Institute approached the Allahabad High
Court and a learned Single Judge by Order dated 11.2.1997 held that CPEd
candidates, either from the State run institutions of Uttar Pradesh or from
Amrawati, should not be treated as disqualified for appointment as Assistant
Teachers, until the CPEd course is brought to an end in terms of the G.O. dated
23.3.1995, that is from the sessions 1996-97 and consequently, the writ
petitioners therein had to be considered for appointment.
When another batch of
petitions filed by some other CPEd candidates came up before another learned
Single judge of the High Court, he did not agree with the reasoning of the
order dated 11.2.1997 and referred the matter to a Division bench by order
dated 10.7.1997. In the reference order, it was observed that the Government
direction dated 23.3.1995 was not of any assistance to the candidates, as the
Rules contemplated only trained teachers, that is teachers possessing BTC or
other equivalent training being considered as eligible and there was no
question of giving appointment to candidates who did not possess the
qualification 6 prescribed under Rule 8 of the Rules. Another learned Single
Judge, who considered the matter after the issue of the Government direction
dated 11.8.1997 made an order dated 23.8.1998 in another batch quashing the Government
direction dated 11.8.1997 and the consequential advertisement dated 17.8.1997
and directed that all candidates who had obtained CPEd Certificates prior to
6.8.1997 should be considered for appointment to the post of Assistant teachers
in Basic Schools.
10.
The
appeals from the orders dated 11.2.1997 and 23.8.1998 of the two learned Single
judges and the writ petitions referred to a larger Bench by another learned
Single Judge, were all considered by the Division bench. By the impugned order
dated 26.6.2000, the Division Bench directed that CPEd candidates trained in
the institutions run by the state, or institutions recognized by state or
trained from any other institutions which had been recognized equivalent to
CPEd Course of Uttar Pradesh should be considered for appointment in terms of
the Government orders dated 23.3.1995 and 28.2.1996. The Division Bench also
directed that CPEd candidates who have obtained certificates from Amrawati
Institute should also be considered on the 7 basis of the judgment dated
11.2.1997 of the learned Single Jude. The said judgment is challenged in these
appeals.
11.
Though
the Division Bench noted that CPEd was never recognized by the State Government
as equivalent to BTC, HTC or JTC, it was of the view that having regard to the
directions contained in the Government letter dated 23.3.1995 issued under
Section 13 of the Act, candidates who possess CPEd Certificates were eligible
to be considered as untrained candidates, who, on selection and appointment
should be subjected to training. But the Division Bench overlooked the fact
that though the government direction dated 23.3.1995, may apply to
advertisement dated 18.1.1997, the said direction dated 23.3.1995 was revoked
and superseded by the subsequent government direction dated 11.8.1997. The
Government direction dated 11.8.1997, is a policy formulated in pursuance of
NCTE guidelines, to make appointments only in accordance with the rules,
without relaxations. It did not suffer from any infirmity. When the said direction
was received, the Board apparently decided not to proceed with the selection
process commenced in pursuance of the advertisement dated 18.1.1997 and issued
a fresh advertisement dated 17.8.1997, which it was entitled to do.
It is now well
settled that merely because a candidate is 8 eligible when the advertisement
was issued or that a candidate's name is included in the selection list does
not confer any right to the candidate to be appointed. It is also well settled
that it is for the rule making authority or the appointing authority to
prescribe the qualifications for recruitment and courts will not interfere with
the qualifications prescribed by such authority. In this case, the Board
decided not to pursue the recruitment advertisement dated 18.1.1997 for good
and valid reasons and issued a fresh advertisement dated 17.8.1997 in terms of
the direction dated 11.8.1997. Therefore, the issue whether the CPEd
Certificate candidates who applied against the advertisement dated 18.1.1997,
were eligible or not, with reference to the said superseded advertisement dated
18.1.1997, becomes academic.
The High Court could
not have, therefore, directed that the CPEd Certificate candidates be
considered in terms of the government directions dated 23.3.1995 after the
Government direction dated 11.8.1997. In the view we have taken, it is not
necessary to examine the other question as to whether the government, by an
executive order, can direct the Board to deviate from the qualifications
prescribed by the rules.
12.
The
appeals are, therefore, allowed and the order of the Division bench is set
aside and the writ petitions by the 9 private respondents are dismissed. The
validity of the Government direction dated 11.8.1997 and consequential
advertisement is upheld.
13.
We
may, however, make it clear that if any candidate with CPEd Certificate had
already been appointed by virtue of any interim or final order of the High
Court, and continues to be in appointment even as on date, after undergoing
training as stated in the Government directions dated 23.3.1995, his service
may not be terminated merely on the ground that the said Government direction
was superseded by the Government direction dated 11.8.1997.
__________________J
[R. V. Raveendran]
_________________J
[J M Panchal]
New
Delhi;
February
5, 2009.
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