UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 PART 6

UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 

इस केस ने लाखों टी ई टी अभ्यार्थीयों  को संशय में डाल दिया है 

केस की प्रोसीडिंग कई पेजों की है इसलिये में टुकड़ों में इसके मुख्या अंशों' को पब्लिश करने की कोशिश कर रही हूँ ।

क्योंकि इतने सारे पेजों का इस केस को ब्लॉग पर डालने में परेशानी आ रही है 

*****************

PART 6

*****************

Learned counsel for the appellants have heavily relied on the stand of the State Government as taken in a supplementary counter affidavit filed by I.P. Sharma, Secretary U.P. Board of Basic Education in Writ Petition No.57595 of 2005 (Ramesh Kumar Singh and others vs. State of U.P. and others) which petition had challenged the appointments made by State Government of the Assistant Teachers who had obtained Special B.T.C. Courses 2004 and 2007. The State by filing supplementary counter affidavit in the aforesaid writ petition had defended its procedure adopted and selection made by it of the Assistant Teachers of Special B.T.C. passed candidates. 

Learned counsel for the parties have placed reliance on various judgements of the Apex Court and other High Courts which shall be referred to while considering their respective submissions. 

Two main issues which have to be considered in this bunch of special appeals are:- 

(i) Whether for the candidates who have passed BTC/special B.T.C. after the notification dated 23rd August, 2010 issued under Section 23 of the 2009 Act, the selection process shall be treated to have commenced from the date of issuance of advertisement by DIET/Director, SCERT inviting applications for selection to BTC/Special BTC so as to make them eligible for appointment under Paragraph 5 of the notification dated 23rd August, 2010? 

(ii)Whether the candidates who are BA/BSc with at least 50% marks and possesses B.Ed. qualification are eligible for appointment as Assistant Teacher to teach Class I to V as per clause 3 of the notification dated 23rd August, 2010 without they having passed Teacher Eligibility Test (TET)? 

The recruitment of teachers in basic schools run by Uttar Pradesh Board of Basic Education is governed by statutory rules, namely, Uttar Pradesh Basic Education Teachers Service Rules, 1981 which provides recruitment, qualification and other conditions of service. Rule 8, as quoted above, provides for qualification to be possessed for appointment as Assistant Teacher in basic schools, Rule 14 provides for determination of vacancy and preparation of list for the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools and Rule 15 provides for notification of vacancies and preparation of list for certain posts of Assistant Masters of Senior Basic School and Mistress of Senior Basic Schools. Rule 16 provides for constitution of Selection Committee, Rule 17 provides for procedure for direct recruitment to post of teaching a language and Rule 17A provides procedure for direct recruitment to a post other than languages. As noticed above, there has been shortage of teachers in primary schools due to non availability of candidates possessing teachers training qualification as prescribed under Rule 8. The total number of candidates who are trained by 17 DIETS situate in State of U.P. at the ratio 200 or 100 per institution is much less than the number of Assistant Teachers who retires every year. Apart from above, thousands of vacancies are laying vacant in different institutions and under the scheme implemented by the Central Government and the State Government about 1.26 lacs news posts were sanctioned. The State of U.P. issued various Government orders from time to time, as noted above, initiating process for imparting special basic teachers training to large number of candidates and also imparted the same. In this context references are made to Special B.T.C. 1998, 2004, 2007-08 and 2010. The reference of the Government order dated 14th January, 2004 is also made by which Special BTC was initiated for training 46,179 B.Ed./LT/B.P.Ed./C.P.Ed. passed candidates. Relevant paragraphs of the said Government order dated 14th January, 2004 are as follows:- 

"In exercise of the powers under Section 19 of the Uttar Pradesh Basic Education Act, 1972 (U.P. Act No.34 of 1972), the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (1981-LLT-V-147[117]): 

1. Short title and commencement. - (1) These Rules may be called the Uttar Pradesh Basic Education (Teachers) Service (Tenth Amendment) Ruiles, 2004. 

2. Amendment of Rule 8. In the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 for clause (I) of sub-rule (II) of Rule 8 the following clause shall be substituted, namely:- 

"Academic qualification 

(ii) Assistant Master and Assistant Mistress of Junior Basic Schools.- A Bachelor's Degree from a University established by law in India or a Degree recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Vishisht Basic Teacher's Certificate (BTC), Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other Training Course recognised by the Government as equivalent thereto." 

After issuance of the said Government order advertisement dated 17th July, 2004 was issued inviting applications for Special BTC. The candidates were selected and were imparted Special BTC course. Large number of teachers were appointed on the basis of Special BTC 2004. Similarly, the State Government looking to the further requirement of teachers in the institutions, submitted a proposal on 22nd June, 2006 to the NCTE for approving its proposal for training 50,000 B.Ed., L.T., B.P.Ed., C.P.Ed. The NCTE approved the proposal vide letter dated 17th July, 2007 and thereafter Government order dated 10th July, 2007 was issued. The Government order dated 10th July, 2007 also provided in paragraph 15 that after completion of six months training they shall be treated eligible for appointment as Assistant Teachers in Primary Schools. In this context Government order dated 22nd August, 2005 as well as letter of Director of Education (Basic) dated 31st October, 2005 also need to be referred to. The State of U.P. vide Government order dated 22nd August, 2005 decided to allocate the posts according to vacancies in different districts. A chart showing allocation of different vacancies in different districts was enclosed along with the Government order. The Government order contemplated that Principals of DIET shall obtain three options from the candidates who have completed training and forward the same to Director, SCERT who in turn forward the same to the Director (Basic) and the Director (Basic) shall thereafter proceed to allocate their place of posting. The said Government order further provided that appropriate directions be issued to concerned authorities to take necessary action. Although the object of imparting Special BTC was clearly to train candidates to impart training to the candidates so as to make them eligible for appointment as Assistant Teacher to fill up the vacant posts but can the advertisement inviting applications for admission in BTC be treated as initiation of process of appointment. As noted above, Clause 5 of the notification dated 23rd August, 2010 provides as follows:- 

"5. Teacher appointed after the date of this Notification in certain cases:- Where an appropriate Government or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of this Notification, such appointments may be made in accordance with the NCTE (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulation, 2001 (as amended from time to time)." 

The key words which are used in Clause 5 are "issued an advertisement to initiate the process of appointment of teachers". Much emphasis has been laid by Sri Khare, learned Senior Advocate, on the word "an" and he submits that use of word "an" clearly indicates that there can be more than one advertisement and the advertisement for admitting candidates in the Special BTC should be treated as an advertisement to initiate the process of appointment. Referring to meaning of "an" he has referred to extract from Word and Phrases (Permanent Edition) which is to the following effect:-

"An" is the indefinite article meaning any. State ex rel. Hurd v. Blomstrom, 37 N.W.2d 247, 249, 72 S.D. 526. 

"An" is synonymous with "any". People v. One 1940 Buick Sedan, Engine No.53795291, 162 P.2d 31S, 320, 71 Cal.App.2d 160." 

As noted above, process of recruitment and appointment is governed by 1981 Rules since 2009 Act and the notification issued therein does not regulate procedure of appointment. A learned Single Judge of this Court had occasion to consider 1981 Rules, the 1993 Act, the 2009 Act and also the notification dated 23rd August, 2010 and has held that manner of recruitment for appointment is to be governed by the 1981 Rules. Following has been laid down in paragraph 34 of the judgment and order dated 14th December,2011 in Writ - A No.72433 of 2011 (Govind Kumar Dixit &others vs. State of U.P. and others):- 

"34. The above discussion makes it beyond doubt that the above notifications issued by NCTE lays down minimum qualification, which would make a person eligible for appointment as a teacher in Primary Schools but the manner in which recruitments for appointment n the post of teacher in Primary School shall be made, and, their terms and conditions of service, for the same, aforesaid notification does not provide anything at all and hence in this regard 1981 Rules shall hold the field and would continue to apply." 

The learned Single Judge of this Court while considering the case of candidates who have completed the Special Basic Teacher Certificate Course 2007 and 2008 for their appointment as Assistant Teachers in Elementary Schools in Writ Petition No.64709 of 2011 (Shailendra Kumar Yadav and others vs. State of U.P. and others), has placed reliance on the judgment of the Apex Court in the case of Devendra Singh and others vs. State of U.P. and others reported in (2007)9 SCC 491 in which case the Government order dated 14th January, 2004 by which Special B.T.C. course 2004 was initiated came for consideration. The candidates who could not be selected in B.T.C. Course 2004 challenged selection claiming that they were entitled for being given preference and further the selection in the Special Basic Training Certificate Course ought to have been made on the basis of yardstick as laid down in 1981 Rules since the selection to B.T.C. Course is nothing but selection process for appointment as Assistant Teacher. The said argument was specifically made before the High Court and thereafter before the Apex Court by unsuccessful candidates. Noticing the Government order dated 14th January, 2002, Apex Court observed following in paragraph 6:- 

"6. In order to resolve the controversy it is just and necessary to notice the salient features of the policy decision of the Government of Uttar Pradesh dated 14.1.2004. It is clear from a bare reading of the policy that the Government had resolved to arrange the Special BTC Training Course spread over a period of six months to all those 46,189 B.Ed./L.T. qualified candidates. The selection is for the purposes of imparting training and not recruitment into any service as such. Only such candidates who completed their training of B.Ed./L.T. as regular students in universities recognized by the National Teachers Education Board, recognized colleges and training institutes conducted by the State Government/ Central Government alone were eligible for the selection into the course. The policy provides the age of the applicant must be minimum of 16 years and not more than 35 years as on 1st July, 2004. However, some relaxation has been made in favour of scheduled caste, scheduled tribe, backward class candidates and others with which we are not concerned in this case. The most important feature of the policy is that a State level merit list is required to be prepared on the basis of percentage of marks obtained in High School considering the rules regarding reservation. The policy directs the payment of stipend of Rs. 2500/- per month to the selected candidates for the special BTC training until "he is duly appointed on the post of Assistant Teacher in the basic school after passing the written and practical examinations conducted by the Registrar, Departmental Examinations, Uttar Pradesh and obtaining the required certificate, under the control of State Council for Education Research and Training, on completing the required training in the merit process." 

Repelling the above argument, following was laid down by the Apex Court in paragraph 10 of the said judgment:- 

"10. The learned counsel for the appellants relying upon the statement made in the counter affidavit filed in these appeals wherein it is conceded that sub-rules (3) to (6) of Rule 14 are not deleted submitted that the matter should be sent back for re-consideration of the High Court by duly applying the effect of sub-rules (3) to 6 of Rule 14 of the Rules. The submission was that the merit list is required to be prepared in accordance with sub-rules (3) to (6) of Rule 14 of the Rules. The submission in our considered opinion is totally misconceived. We have already noticed that the U.P. Basic Education (Teachers) Service Rules, 1981 deal with the post training scenario. The Rules deal with the selection and appointment of teachers from amongst the candidates already possessing the training qualifications. The Rules do not deal with the selection of the candidates into Basic Training Course. The reliance placed upon the said Rules by the appellants in support of their contention is totally untenable and unsustainable. These Rules do not have any bearing in the matter of selection of candidates into Basic Training Course, 2004. The policy decision of the Government dated 14.1.2004 deals with the arrangement of the Special BTC Training Course for the period of six months for those 46,189 B.Ed./L.T. qualified candidates. The process of selection of the candidates for the said training and the arrangement of the training is required to be conducted in accordance with the guidelines, directions, conditions and restrictions incorporated thereunder. None of the appellants qualified themselves for undergoing the said training course inasmuch as they were not selected as they were not found meritorious or over aged as the case may be. It is not demonstrated as to how the appellants were entitled for selection to undergo Special BTC Training Course, 2004. The validity of the policy decision dated 14.1.2004 is not impugned in these appeals." 

The Apex Court in the said judgment laid down that 1981 Rules deals with post-training scenario. The Apex Court thus clearly distinguished in the said judgment the two different process and held that appointment is to be regulated by the 1981 Rules. 

According to Rule 26 of the 1981 Rules, the appointing authority in relation to teachers is the District Basic Education Officer. The advertisements for inviting applications for selection for Special B.T.C. Course were issued by Principals of DIET/Director of State Council of Education, Research and Training (SCERT). Clause 5 of the notification dated 23rd August, 2010 contemplates issuance of advertisement by an appropriate Government, or local authority or School. The advertisement thus issued by DIET or SCERT cannot fall within the advertisement as contemplated by Clause 5. 

Learned counsel for the appellants laid much emphasis on the submission that 1981 Rules does not contemplate any kind of selection and every candidate who obtains Basic Training Certificate has to be given appointment and selection process is undertaken only at the time of admission in B.T.C. Course. The rule making authority which had issued notification dated 23rd August, 2010 was well aware of teachers training course and the process of admission to Special Basic Training Certificate Course since it is the NCTE who has issued the notification and which regulate teachers training course throughout the country and is also well aware of the process for initiating admission in teachers training course and process of appointment of teachers. The use of specific words "issued an advertisement to initiate the process of appointment" have to be given its plain meaning. The object of Clause 5 of the notification dated 23rd August, 2010 was to cover those candidates for whom process of appointment by issuance of advertisement has already begun and on the date when notification was issued i.e. 23rd August, 2010 the said process was in progress so that they may not be subjected to qualification which has been introduced from 23rd August, 2010. The contemplation in the notification that for ongoing process the change of recruitment rules shall not effect the qualification is clearly in accordance with the well settled law as has been laid down by the Apex Court in the case of N.T. Devin Kanti and others vs. Karnataka Public Service Commission and others reported in 1990(3) UPLBEC 1955. But the important factor, which is to be taken note of is that process of appointment has began. When a person is still acquiring qualification for a post, it cannot be count enanced that process for acquiring qualification for becoming eligible for appointment is process for appointment to the post.