Rule returnable on 08.10.2012.
(1) Mr.
K.K. Pujara learned counsel for the petitioners has contended that either the petitioners should be considered for the post of Head Teacher or the respondents may be restrained from taking any action pursuant to the advertisement issued by the State Government, which is contrary to the decision of this Court rendered in Special Civil Application No. 3592 of 2012 and allied matters.
(2) Mr.
Pujara submitted that it is nowhere mentioned in the Advertisement dated 22.03.2012 and 18.05.2012 that the petitioners would require the experience of five years after completing B.ed, for being considered to be appointed as Head Teacher.
(3) Mr.
Pujara further contended that degree of B.Ed for primary teachers followed by Teachers Eligibility Test (TET) is made compulsory only after implementation of the Central Act of 2009. Prior thereto, as per the Primary Education Act and Rules, teachers with a degree of PTC were qualified to teach in the Primary Schools. Therefore, now to expect that all the teachers teaching in the private primary schools need to have experience of five years after B.Ed. is contrary to the Gujarat Primary Education Act and Rules famed there under. He submitted that B.Ed. is not compulsory to be qualified and eligible to become primary teacher in the Government school or in the private primary school prior to 2009 and therefore, now to expect degree of B.Ed. compulsory in the year 2012, when the Central Act has come into force from and after 2009 is illegal and unlawful.
(3) Mr.
Pujara, has drawn the attention of this Court to judgment dated 08.05.2012 rendered by this Court in Special Civil Application No. 3592 of 2012 and allied matters, more particularly para 12.26, which reads as under:-
"12.26 In this view of the matter, the provision under Rule-4(b)(1) which prescribes requirement of bachelor degree as minimum qualification for the post of Head Teacher will, so far as the lower primary school is concerned, result into drastic consequence of rendering teachers teaching in lower primary school and possessing prescribed minimum qualification ineligible for making application for post of Head Teacher. The said provision, as the foregoing discussion demonstrates, is made without taking into account relevant aspects and facts, is unsustainable as being arbitrary and unreasonable. Since the said provision under Rule 4(b)(1) can be severed, by maintaining the said provision for upper primary school and since the said provision is, in view of the reasons discussed above, unsustainable, it is hereby set aside however with clarification that it would be open to the respondent State to prescribe appropriate minimum qualification for the post of Head Teacher in lower primary school, i.e. 1st standard to 5th standard by keeping in focus the clear distinction and division of primary school (in lower primary school and upper primary school) made by Central Act and Rules and the schedule under the Central Act and the State Amendment Act and NCTE Rules and also keeping in focus the minimum qualification for the feeder post prescribed by NCTE with reference to lower primary school.
(4) Mr.
Pujara contended that the State Government amended the Rules vide Circular No. PRE/111/Single File-3 C, dated 16.05.2012 and thereafter, further advertisement was issued by the State Government on 18.05.2012 which is contrary to the decision of this Court rendered in Special Civil Application No. 3592 of 2012 and allied matters.
(5) In support of his submissions, Mr. Pujara has relied upon the decision of Apex Court in the case of P. Mahendran and others V/s. State of Karnataka & Matteesh Y. Annigeri and others, reported in, AIR 1990 SC 405, wherein it is held that selection process is to be completed in accordance with law as it stood at its commencement and that amended Rules would not invalidate selection already made.
(6) Mr.
P.K.Jani, learned Government Pleader, submitted that the contention raised by the petitioners that five years experience after acquiring the degree of B.E. is not required may not be accepted. Mr. Jani has drawn the attention of this Court to Rule 4(d) of Head Teachers, Class-II Rules and contended that for being considered for the post of Head Teacher experience is prescribed and therefore, looking to the nature of work, duties and responsibilities which is required to be performed by a Head Teacher, it cannot be said that Rule 4(d) is in any way arbitrary or bad in law. He submitted that there cannot be any compromise on the requisite experience as required under Rule 4(d) of Head Teacher, Class-III Rules and therefore, the experience of a teacher as specified in Rule 4(d) namely as Vidhya Sahayak in Government or Grant in Aid or Non Grant in Aid Private Lower School or Upper Primary School or Secondary Education or School or Higher Secondary Education School or Primary Education Adhyapan Mandir of District Institute of Education and Training is just and proper. Mr. Jani relied upon the decision of Apex Court in the case of Chandigarh Administration through The Director Public Instructions V/s. Usha Kheterpal Waie and others, reported in, (2011) 9 SCC
645. (8) This Court on 14.06.2012 passed the following order:-
"Draft amendment is granted.
By way of interim relief it is directed that four seats shall be kept vacant. Any appointment which will be made will be subject to the result of this petition.
The respondent-State of Gujarat will file affidavit- in-reply before the next date of hearing. Matter is adjourned to 19.06.2012.
(9) In view of the order, the State Government is directed to keep four posts vacant as directed by this Court on 14.06.2012.
However, Mr. Pujara contended that the case on hand is required to be considered mandatorily. Having heard learned advocate for the parties and having gone through the records, prima-facie, this Court is of the considered opinion that Policy and Circulars issued by the State Government is for the betterment of the students and for the quality of the education that does not require any interference by this Court at admission stage. It shall not be appropriate to allot untrained teachers to primary students who are at the threshold of their academic career. Hence, this Court is of view that the contention raised by the learned Government Pleader is for the betterment of the students at large or teachers without basic degree/training and therefore, the relief, if at all can be granted at final hearing stage. Such a mandatory relief cannot be granted at this stage.
(11) Admittedly, Mr. Pujara is not in a position to show that the petitioners have experience of five years and he contended that experience gained prior to acquiring the degree may also be considered.
(12) Para 21, 22 and 23 of the decision in the case of Chandigarh Administration through The Director Public Instructions (Supra), read as under:-
"21. The Tribunal and the High Court also committed an error in holding that the appellant could not prescribe the qualifications of PhD for the post of Principal merely because earlier the said educational qualification was not prescribed or insisted. The Recruitment Rules were made in consultation with the UPSC, to give effect to the UGC guidelines which prescribed PhD degree as the eligibility qualification for direct recruitment of Principals. In fact, even the 1976 Punjab Rules prescribed PhD degree as a qualification. In several states, PhD is a requirement for direct recruitment to the post of a college Principal. When the said qualification is not unrelated to the duties and functions of the post of Principal and is reasonably relevant to maintain the high standards of education, there is absolutely no reason to interfere with the provision of the said requirement as an eligibility requirement.
22. It is now well settled that tit is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules.
(See.
J.Ranga Swamy v. Govt. of A.P. And P.U. Joshi v. Account General). In the absence of any rules, under Article 309 or statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable.
Therefore, it cannot be said that the prescription of PhD is unreasonable.
23. The Tribunal and the High Court have held that in the years 1989 and 1991, the Tribunal had accepted that the earlier administrative instructions dated 20.08.1987 which required the UT cadre employees to be considered for the post have to be followed. The fact that at that time PhD degree was not insisted upon, does not mean that for all times to come, PhD degree could not be insisted. PhD degree was made a qualification because UGC guidelines required it for direct recruitment post and the UPSC approved the same. Therefore, merely because on some earlier occasions, the posts of Principal were filled by UT cadre lectures without PhD degree, it cannot be argued that the PhD degree cannot be prescribed subsequently."
(13) In view of the above, this Court is not inclined to grant any mandatory relief at this stage.
[K.S.JHAVERI, J] siddharth// Top