Saturday, November 5, 2016

BTC Age Related Case in Allahabad HighCourt -

BTC Age Related Case in Allahabad HighCourt 



HIGH COURT OF JUDICATURE AT ALLAHABAD 

AFR 
Reserved On 1 September 2016 
Delivered on 9 September 2016 
Court No. - 33 

Case :- WRIT - C No. - 39634 of 2016 

Petitioner :- Km. Amrita Yadav 
Respondent :- State Of U.P. And 3 Others 
Counsel for Petitioner :- Amar Nath Singh,Surendra Kumar Chaubey 
Counsel for Respondent :- C.S.C.,Syed Nadeem Ahmad 

Hon'ble Suneet Kumar,J. 
Heard learned counsel for the parties. 
The State Government pursuant to Government Order dated 14 June 2016 initiated the process of conducting Teacher Education Course/D.El.Ed.1 The candidates were to be selected for Government and Private Training Institutions which were duly approved by the National Council for Teachers Education2 and affiliated by the State Government. Pursuant to the notification, advertisement were published inviting applications from candidates having graduation degree with minimum 50% marks, on the last date of registration i.e. 11 July 2016. Paragraph 3(ii) of the notification prescribes the age limit. A candidate must have attained the age of 18 years and should not be over 35 years as on 1 July 2015. Relaxation in the upper age limit was provided to some category of candidates viz. Scheduled Caste, Scheduled Tribe, Other Backward Class, Handicapped etc. 
Paragraph 4 provides for procedure for selection which is based on merit and quality point marks determined on educational qualification. 
The petitioners are assailing the cut of date i.e. 1 July 2015 prescribed for determination of age. All the petitioners before the Court are less than 18 years as on the cut of date and would submit: (i) cut of date being arbitrary and having no nexus with the BTC course, as applications are being invited in 2016 but the cut of date has been fixed in July 2015; (ii) persons having obtained graduation degree as on the last date of registration i.e. 11 July 2016 have been deprived by arbitrarily fixing the cut of date in the preceding year; (iii) as per Rule 1981 the candidate must have attained the age of 18 years and must not have attained the age of more than 35 years on the first day of July following the year in which the vacancy is notified; (iv) candidates who have obtained graduation degree have legitimate expectation of employment upon completing BTC training; (iv) registration form and fee have been accepted, therefore, the respondents are estopped from not sending the petitioners for counselling. 
Learned Standing Counsel appearing for the respondents would contend: (i) BTC being two year training programme, the session being delayed, therefore, the cut of date has been fixed as per the session 2015; (ii) selection are being made for BTC 2015, therefore, cut of date has been fixed on 1 July 2015, the date and year in which advertisement has been issued would, therefore, have no bearing; (iii) State would shortly be inviting applications for BTC 2016, therefore, all candidates who are ineligible as on 1 July 2015 would become eligible for BTC 2016; (iv) upon disturbing the cut of date, would deprive a large number of candidates who have attained the age of 35 years from participating in the selection process; (v) candidates likely to be affected in shifting the cut of date, would disturb the entire selection process, therefore, a fresh advertisement would have to be issued inviting application from such candidates; (vi) the session for 2015-16 is already delayed, therefore, the Government in order to regularize the session would shortly be issuing notification for BTC 2016; (vii) reliance has been placed on a decision rendered in Divyanshi Tiwari vs. State of U.P. And others3. 
Rival submissions fall for consideration. 
I have perused the pleadings, records of the case and considered the rival submissions advanced at the Bar. 
The sole question for determination is, as to whether, the cut of date i.e. 1 July 2015 fixed by notification dated 14 June 2016 for BTC 2015, for determination of age is arbitrary, fanciful and whimsical. 
The facts inter se parties are not in dispute. 
The State Government initiated the processes for selection of candidates for BTC 2015 pursuant to Government Order dated 14 June 2016. Advertisements were published and notified on 23 June 2016 inviting applications from eligible candidates. The last date for registration of the candidates, having educational qualification was fixed for 11 July 2016, thereafter, counselling would commence. 
The Examination Regulatory Authority, Uttar Pradesh Allahabad4 posted on their official website the schedule for registration and filling of form which is as follows: (i) Last date for registration: 11 July 2016 up to 6:00 pm only; (ii) Last date for fee deposit: 14 July 2016; (iii) Last date for complete the form: 18 July 2016; (iv) Last date for correction: 22 July 2016 upto 6:00 pm. 
As per the scheme of the Government Order, a candidate must possess minimum educational qualification on the last date of registration, apart from fulfilling the age criterion as on 1 July 2015. 
The learned counsel for the petitioner would contend that in respect of teachers of primary schools maintained by the Board, the U.P. Basic Education Teachers (Service Rules) 19815 would apply. Rule 6 of Rule 1981 provides that a candidate for recruitment for a post of teacher in a Basic school must have attained the age of 18 years and must not have attained the age of more than 35 years on the first day of July following the year in which the vacancy is notified. 
Heavy reliance has been placed on the Rule to impress that training is an essential qualification for appointment of a teacher, therefore, determination of age for training course should be in terms of Rule 6 of Rule 1981, it is therefore, urged that the cut of date fixed under the notification for BTC 2015 is against the statutory provision. 
In my opinion, this matter has been dealt in detail in Divyanshi Tiwari (supra), wherein it has been held: 
Recruitment to a post of teacher and admission to undergo BTC Training course are two different things and it appears that the petitioner is confused that she is being appointed for BTC. As a matter of fact, for obtaining BTC certificates by the candidates, the State Government has issued Government Order dated 14.06.2016 and in pursuance thereof, the advertisement was issued. The successful candidates are required to undergo training for BTC training and after being declared successful in the training, they are issued BTC certificate, which is one of the requisite qualification for being appointed as a Teacher in Basic Schools. Therefore, the stand of the petitioner that the age is to be determined as on the 1st July, 2016 and not on 1st July, 2015 is not legally acceptable. 
I have no reason to take a different view, Rule 1981 would not apply to selection of candidates for a training course. Recruitment for the post of a teacher and selection of candidates for training course are entirely different and are governed under different provisions. Rule 1981 is not directly or indirectly, even remotely connected with the method of selection of candidates for undergoing training, which is dependent upon the terms and conditions and the criterion determined by the State Government and the Regulatory Authority from time to time. It is upon acquiring the training certificate, a candidate would, thereafter become eligible for applying for the post of a teacher upon successfully qualifying Teachers Eligibility Test (TET). The plea, that the cut of date for determining the age is in violation of Rule 6, therefore, is rejected. 
The other contention, as to whether, the State Authorities have committed an error in fixing the cut of date on 1 July 2015 for determination of age being arbitrary, whimsical or capricious. 
It is sought to be urged on behalf of the petitioners that the advertisement was notified in June 2016 but the cut of date for determination of age has been fixed in the preceding year i.e. 2015, whereas, if not fixed as per Rule 1981, then in that event, it should have been fixed on 1 July 2016. It is not in dispute that all the petitioners before the Court have obtained graduation degree and are having the requisite qualification on the last date of registration i.e. 11 July 2016, but for the cut of date fixed in the preceding year i.e. 2015 a large number of meritorious candidates have been eliminated, therefore, it is contended that the cut of date is arbitrary. Further, it is contended that selection for BTC training course is not a recruitment process, it is merely, a selection to undergo training which is not linked with employment or selection of teachers, therefore, fixing the cut of date in 2015 has no reasonable nexus with the purpose sought to be achieved. All the candidates otherwise qualified would loose one year and would have to wait for the subsequent advertisement. 
In rebuttal learned Standing Counsel would contend that the session for BTC training, in the State, is delayed, the process for BTC 2015 which should have been initiated and concluded in 2015 has spilled over to the subsequent year, therefore, it is sought to be urged that the State Government in its wisdom while fixing the cut of date for determination of age, has fixed it on 1 July 2015 as the training programme is for 2015 and not for 2016. It is further contended that for BTC 2016 a notification would shortly follow, petitioners can apply and that would not prejudice them. The cut of date is justified for the reason that all candidates who have already attained the age of 35 years as on 1 July 2015 would be deprived, in case, the cut of date is shifted to 2016. All such affected candidates are not before the Court, even otherwise, it is not possible at this stage to modify the cut of date, for the reason that the session is already delayed and in the event of the cut of date being shifted, a fresh advertisement would have to be notified so as to permit all such candidates who are not before the Court to enable them to apply. 
In Baba Shiv Nath Singh, Shikshan Evam Prashikshan Sansthan vs. National Council for Teacher Education and others6 the petitioner institution therein was granted recognition by the NCTE for 2015-16 for conducting the Teacher Education Course/BTC course. The plea of the institution before the Court was that the session for 2015-16 is yet to be commenced and such commencement will be inordinately delayed as the academic session for the previous year i.e. 2014-15 is yet to start, therefore, it was prayed for ante-date the recognition of the institutions either to the academic session 2013-14 or academic session 2014-15, as may be. The Court inter alia directed that academic session for 2015-16 (BTC 2015) would commence on 22 September 2016 and in respect of the said academic session "affiliation and admissions etc. in respect of the academic year would stand concluded well in time to enable the commencement of the session from the date mentioned i.e. 22 September 2016". It was further provided that the academic session 2015-16 similarly will be brought to its earliest conclusion so that the next academic session "can begin as per the original academic calendar i.e. July 2017 and thereafter, each academic session will strictly upheld to the academic calendar of the State". 
The decision pertains to BTC 2015, therefore, the cut of date fixed for commencement and conclusion of the course by the Supreme Court is binding upon the State and the Institutions. The notification of the State has adhered to the cut off date which cannot be altered by this Court. 
As to whether the cut off date for determination of age as notified is arbitrary, Supreme Court in National Council for Teachers Education vs. Sri Shaym Shiksha Prashikshan Sansthan7 declared that the cut of dates would not be declared illegal unless "it is shown to be capricious or whimsical in the circumstances". The Court held that a reasonable degree of latitude was required to be provided to be law-makers and thus when a cut-off date was fixed, it was ordinarily not to be interfered with by the judiciary. 
In Union of India vs. Parameswaran Match Works8 wherein the Court relied upon following judgments, viz., Louisville Gas Co. vs. Alabama Power Co.9 and M. Match Works vs. Assistant Collector, Central Excise10, the Court observed as follows: 
The choice of a date as a basis for classification cannot be always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegate must be accepted unless we can say that it is very wide off the reasonable mark. 
In State of Bihar vs. Ramjee Prasad11, the Court reversed the judgment of the Patna High Court which had struck down the cut off date fixed for receipt of the application. After adverting to the judgments in Union of India vs. Parameshwaran Match Works (supra) and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitikaran Abhiyan Samiti, Varanasi vs. State of U.P.12, the Court observed: 
In the present case as pointed out earlier the past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement. ........... As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark. The choice or the date for advertising the posts had to depend on several factors, e.g. the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc. It is not the case of anyone that experienced candidates were not available in sufficient numbers on the cut-off date. Merely, because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from January 31, 1988 to June 30, 1988 is no reason for dubbing the earlier date as arbitrary or irrational. 
Having due regard to the statement of law, it cannot be said that fixation of date for determination of age on 1 July 2015, Government has acted whimsically or capriciously. It cannot be brushed aside that all candidates who are at the brink of upper age limit i.e. 35 years would be deprived from participating in the selection process in the event the cut of date is shifted to the year of notification i.e. 2016. Merely, because some eligible candidates who have obtained graduation degree in 2016 are not eligible due to the cut of date fixed for the determination of age would not mean that the action on the part State Government is whimsical or arbitrary. Further, the State Government has to strictly comply with the directions issued in Baba Shiv Nath (supra). 
Finally, the argument that academic year 2015-16 or 2016-17 be declared "zero" year and merge academic session for both the years into one i.e. 2017-2018, so as to regularize the session. A similar plea was raised before the Supreme Court in Baba Shiv Nath (surpa) which was rejected in the absence of all the institutions and the representations of the students who may be affected, therefore, this Court would not dwell upon the issue for the same reason, but it would be appropriate for the State Government in consultation with the Regulatory Authority and the Institutions, to take a decision in that regard upon deliberation. The plea falls within the ambit of policy decision, therefore, no positive direction can be issued, however, it is always open for the State Government to dwell upon the issue and take an appropriate decision. 
Reliance has been placed on several Government Orders pertaining to previous selections issued for BTC training course to demonstrate that the cut of date for age determination was fixed in the year of notification. The Government Orders relied upon by the petitioners is of no help for the reason that the session was regular and not delayed as in the facts of the present case. 
For the reasons and law stated herein above, the Court is not inclined to take the different view from Divyanshi Tiwari, consequently, the writ petition fails, accordingly, stands dismissed. 
It is provided that interim orders directing provisional counselling for BTC 2015 granted in all similar writ petitions shall stand vacated even in respect of those petitions which are not before the Court and shall not bind the Regulatory Authority or the Principals of District Institute of Education and Training. 
No cost. 
Order Date :- 9.9.2016 
S.Prakash 




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