UPTET / ALLAHABAD HC on Recruitment of Teacher in 2001

 ALLAHABAD HC decisions on Recruitment of Teacher in 2014

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

RESERVED
Court No. - 3
Case :- SERVICE SINGLE No. - 1375 of 2004
Petitioner :- Anil Kumar Shukla and others.
Respondent :- State Of U.P.Through Secy Basic Education And 3 Ors Counsel for Petitioner :- Dr L.P.Misra,N.R.Tripathi,Sanjay Mishra
Counsel for Respondent :- C.S.C.,M.M. Asthana
And
Court No. - 17
Case :- SERVICE SINGLE No. - 1294 of 2003
Petitioner :- Arun Kumar Shukla
Respondent :- State Of U.P.Through Secy. Basic Education Lko. And Ors.
Counsel for Petitioner :- Sanjay Mishra,N.R. Tripathi
Counsel for Respondent :- C.S.C..,R.K.Katiyar
Hon'ble Shri Narayan Shukla,J.

Heard Dr.L.P.Mishra, learned Advocate and Mr. Prafull Tripathi, learned counsels for the petitioners as well as Mr.M.M. Asthana, learned counsel for opposite parties 2 and 4, and Mr. Ghaus Beg, learned counsel for the District Basic Education, Officer Baharaich.
Since in both the writ petitions the same controversy is involved, those are decided by following common order.
The petitioners possessing the two years diploma in education from the various institutions of State of Madhya Pradesh claimed their eligibility for appointment as Assistant Teachers in the Primary Schools in District Baharaich. Their claim have been rejected by means of order impugned i.e. (Annexure No.1, 2 and 3) on the ground that they do not possess the eligibility for appointment as Assistant Teacher under U.P. Basic Education (Teachers) Service Rules, 1981 (herein after referred to as Service Rules, 1981). Since they have completed the diploma course through correspondence courses, they have also challenged the government order dated 27 March 1998 which excludes such trained teachers from the eligibility criteria for appointment on the post of Assistant Teacher.
They also claim their eligibility under the qualifications prescribed by the National Council of Teachers Education as it recognizes the distant courses for the purpose of admission in training courses. The controversy for appointment of Assistant Teachers in Primary Schools of the State of U.P. had come for consideration before this Court in several cases as well as before the Hon'ble Supreme Court, the leading one was Basic Education Board, U.P. Vs. Upendra Rai and others 2008 (1) ESC 160 (SC) in which Hon'ble Supreme Court held that the NCTE Act has no over riding effect over U.P. Basic Education Act and the rules made therein. In fact the two acts operate in altogether two different fields. The NCTE, deals with the teachers training institution while the Basic Education deals with ordinary Primary Education in U.P. and not any Teachers' Training Institute.
In the case on hand the advertisement does not entail the qualification of diploma in education from outside the State as a eligible qualification, rather it provides the eligibility for appointment as Assistant Teachers in two years BTC Course completed from the institution situated in the respective districts. Rule 8 of Service Rules, 1981 also does not recognize such qualification for appointment on the post of Assistant Teacher. The Division Bench of this Court in Mr. Vinod Kumar Singh Vs. District Basic Education Officer, (Writ A No. 58 of 2003) and other connected matters has elaborately discussed this issue and ultimately expressed its opinion that the petitioners did not fulfill the qualifications as prescribed under Rule 8 of 1981 and they are not eligible for the post of Assistant Teachers in the institutions. In this case also the petitioners had obtained the diploma certificate of two years course from the State of Madhya Pradesh.
The learned Counsel for the petitioners placed reliance upon a decision of the full bench of this Court in the case of Jitendra Kumar Soni and others Vs. State of U.P. and others (2010) 3 UPLBEC 2351. A bare perusal of this decision shows that the facts of the said case are distinguishable to the case on hand as in that case the Division Bench has dealt with the qualification for the teachers training courses. Another Full Bench decision of this Court dealing with the case of Ram Surat Yadav and others Vs. State of U.P. and others 2014 (1) ADJ 1(FB) has discussed the issue in detail. In this matter the Division Bench doubting the correctness of the judgment of another Division Bench given in the case of Rishi Kant Sharma Vs. State of U.P. and others 2008 (6) ADJ (DB) referred the matter to the Full Bench. In this case the vacancy of the Assistant Teacher was advertised and pursuant to that selection took place in 2006. Since none of the appointees possessed the Certificates of Training prescribed by the Rules, such as HTC, JTC, BTC or CT, their appointment were held to be invalid.
In Rishi Kant Sharma's case an advertisement was issued for the post of Head Master, appellant was selected, a year later his appointment was challenged. The writ petition was allowed consequently the approval of his appointment was cancelled. In Appeal the Division Bench held that the appointment of the Appellant was made by following due process of law, after an appointment was issued and selection was processed on the point of qualification it distinguishes the decision rendered in the case of Mohd. Sartaj and another Vs. State of U.P. and others (2006) 2 SCC 315 on the ground that in that case the cancellation of order for appointment was issued within very short span of time giving no probability for any legitimate expectations to the appellants regarding their qualification of his service, however, in the present case the Division Bench held that the appellants had continued in service for eight years during the pendency of the writ proceedings. On this ground the Division Bench set-aside the judgment of Learned Single Judge Considering the several decisions rendered on the point. The Full Bench of this Court expressed its view that the Division Bench in Rishi Kant Sharma's case cannot be regarded as lying down the correct law, the relevant paragraph 18 is extracted below:-
"18. In our view, the decision of the Division Bench in Rishi Kant Sharma's case cannot be regarded as laying down the correct principle of law. First and as a matter of fundamental principle, when a requirement of eligibility is prescribed in statutory Rules which govern a selection, appointment of a person who does not fulfill the norm of eligibility cannot be regarded as lawful. Secondly, when a selection process is initiated in pursuance of an advertisement and the advertisement lays down the conditions of eligibility, a person who does not fulfill the required qualifications can have no legitimate entitlement to hold the post. Thirdly, the view which has been taken by the Division Bench is clearly contrary to the law laid down by the Supreme Court in a line of authority. We have already adverted to the decisions in P.M. Latha, Yogesh Kumar, Dilip Kumar Ghosh and Pramod Kumar. Once the Rules which have been framed under the Statute prescribe the eligibility qualifications, those qualifications have to be adhered to. A candidate who does not fulfill the required qualifications has no entitlement to the post and even if such an appointment is made, it would be contrary to law. Fourthly, the ground on which the decision in Mohd. Sartaj has been distinguished is, with respect, erroneous. Mohd. Sartaj's case was sought to be distinguished on the ground that the appointment of the appellant in that case as an Assistant Teacher in Urdu was sought to be cancelled within a short span of time from the date of his appointment. Now, a careful reading of the decision in Mohd. Sartaj's case would indicate that the cancellation of the order of appointment in that case was questioned on the ground that it had been effected without allowing to the appellant a due opportunity of being heard. The argument in regard to the non-observance of the principles of natural justice was repelled by the Supreme Court, holding that the case fell within the exception carved out in the decision in S.L. Kapoor Vs. Jagmohan & Ors.12, that where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue a writ to compel the observance of natural justice, not because it is not necessary to observe it but because Courts do not issue futile writs. Since the appellant did not possess the BTC, HTC, JTC or CT or any other training course recognized by the government of Uttar Pradesh, it was held that the case fell within the exception to the principles of natural justice. Moreover, in that context, it was also held by the Supreme Court that the cancellation order had been issued within a short span of time giving no probability for a legitimate expectation regarding the continuance in service. Hence, it is clear that the issue as to whether a short span of time had elapsed since the date of the appointment was a factor which was considered by the Supreme Court in relation to the argument that there had been a breach of the principles of natural justice. This point, with respect, has been missed in the judgment of the Division Bench in Rishi Kant Sharma's case. Again, the decision in Rishi Kant Sharma's case cannot be regarded as laying down the correct principle in law when it holds that there was a long standing dispute as to whether the BEd degree course can be taken as a superior course to the BTC. Such a contention has been expressly turned down in the judgments of the Supreme Court in P.M. Latha, Yogesh Kumar and Dilip Kumar Ghosh. The Division Bench in Rishi Kant Sharma's case relied upon a Government Order. But it is well settled that a Government Order cannot override statutory Rules. For all these reasons, we are of the view that the judgment in Rishi Kant Sharm'a case cannot be regarded as laying down the correct principle of law."
In the mean time the Right of Children to Free and Compulsory Act, 2009 has been enacted and in exercise of powers conferred by section 38 of the said Act Right of Children to Free and Compulsory Education Rules, 2010 have also been framed which provides the minimum qualification for appointment of teachers in Primary Schools to the Intermediate Colleges, however, the same has not been given retrospective effect and that has also been taken care by the Full Bench of this Court in the case of Ram Surat Yadav (Supra),and the Full Bench of this Court provided that the disputes prior to the enactment of the aforesaid act shall be governed under the relevant statutes.
So far as the issuance of Government Order dated 27th March 1998 which includes the candidates having completed their training from correspondences courses are concerned. I hold that the State Government is fully empowered to regulate the recruitment under the Act, therefore the same cannot be said to be faulty.
The present dispute relates to the recruitment, year 2001, therefore, obviously it shall be governed under the provisions of U.P. Basic Education Act, as well as the rules framed there under. Since the petitioners do not possess the qualification as is prescribed under Rule 8 of the Service Rules,1981 for appointment as Assistant Teachers in the Primary Schools. I do not find error in the orders impugned.
In the result the writ petition is dismissed.
Order Date :- 17.01.2014
A.K. Singh

Source : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=3044052