(By: Justice Ferdino I. Rebello, C.J.) The appellants are in appeal against the judgment and order of the learned Single Judge dated 14.07.2010. The issue before the learned Single Judge was, whether the holders of Moallim-E-Urdu Certificate, which was recognized by the State Government as well as Union of India, and was treated equivalent to B.T.C. (Urdu), would make them eligible for appointment to the post of Assistant Teachers in Basic Primary Schools. The Government had issued Orders dated 28.01.1985 and 21.10.1988, whereby the degree of Moallim-E-Urdu was treated as equivalent to B.Ed., and vide Government Order dated 13.09.1994, the State Government recognized the degree of Moallim-E-Urdu as equivalent to B.T.C. The said Government Order was operative up to 11.08.1997. Admittedly, the respondents herein (original petitioners) had obtained their Certificates between the years 1995, 1996 and 1997 before the equivalence was withdrawn on 11.08.1997.
A Circular was issued by the Director (Basic Education) on 17.03.2004, directing all the District Education Officers of Uttar Pradesh to appoint left over B.T.C. trained candidates along with others having qualification equivalent to B.T.C. forthwith. As the petitioners were not given appointment, though they were eligible for appointment as per Government Order dated 13.09.1994, they filed the writ petition, which has given rise to the present appeal. They had earlier filed another writ petition, being Writ Petition No. 3169 (SS) of 2004 on 17.06.2004, wherein this Court had directed the State Government to consider their case and pass a speaking order. Apparently, adverse orders were passed against them. The learned Single Judge, on considering various contentions of the parties including the appellants herein, was pleased to hold that the respondents had obtained their certificates before the issuance of Government Order dated 11.08.1997, which cannot have retrospective effect and only have prospective effect. Reference was made to various judgments on the rules of interpretation, including the judgment in Zile Singh Vs. State of Haryana & Ors., (2004) 8 SCC 1. The learned Judge has also placed reliance on the judgment of this Court in Mohd. Nafees & Anr. Vs. State of U.P. & Ors., Civil Misc. Writ Petition No. 19324 of 1999, decided on 11.05.1999, whereby the Court had quashed the Government Order dated 11/13.08.1997 as also the advertisement, and held that the petitioners therein as well as other similarly circumstanced candidates, who had obtained Moallim-E-Urdu Certificate of training prior to 06.08.1997 would be considered for appointment to the post of Assistant Teachers in Junior/Senior Basic Schools to teach Urdu. That judgment of the learned Judge has attained finality. Reliance was also placed on the judgment of the Supreme Court in Suresh Pal & Ors. Vs. State of Haryana & Ors., AIR 1987 SC 2027. The learned Judge also noted that the Uttaranchal High Court in Azad Ahmad & 11 Ors. Vs. State of Uttaranchal & Anr., Civil Misc. Writ Petition No. 794 (SB) of 2002, decided on 02.08.2003, had held that candidates, like the respondents herein, who had obtained Moallim-E-Urdu Certificate before 11.08.1997, could not be deprived of their legitimate rights.
At the hearing of this appeal, once again on behalf of the appellants, learned counsel submits that after issuance of Circular dated 11.08.1997, appointment to any post subsequent to that date cannot be made on the basis of a certificate, which has no recognition after that date and, as such, the learned Judge was not right in allowing the writ petition. It is also submitted that the issue of granting equivalence is a matter of policy and the Supreme Court in the case of Basic Education Board, U.P. Vs. Upendra Rai & Ors., (2008) 3 SCC 432, has upheld the State's contention by holding that once a policy decision is taken, the Courts should exercise judicial restraint.
The judgment in Upendra Rai (supra) was considered by a Full Bench of this Court in Jitendra Kumar Soni & Ors. Vs. State of U.P. & Ors., 2010 (7) ADJ 403 (F.B.). We may gainfully reproduce paragraphs 17, 23 and 25, which read as under:-
"17. The real question for our consideration, before we answer the three questions, is as to whether it is possible to make a distinction between the prescribed educational qualifications for the posts as set out in rule 5 and the criteria for admission to BTC Courses approved by the NCTE to correctly understand the issue.
23. In Basic Education Board, U.P. (supra) again the issue of appointment of Assistant Master in Junior Basic Schools. In paragraph 2 of the impugned Circular, it has been said that the appointment to the post of Assistant Teacher in Junior Basic School will be made from the candidates, who have obtained BTC, Hindustani Teaching Certificate, JCT or Certificate of Teaching from the Institutions situate within the State of Uttar Pradesh, as per the Rules, 1981, and other qualification equivalent to BTC be cancelled with immediate effect. Grant of equivalence and/or revocation of equivalence is for the body empowered and normally it would not be interfered with by the Court. The learned Bench, then referred to the NCTE Act, 1993 and observed that the qualification for appointment as teacher in the ordinary educational institutions like the primary school, cannot be prescribed under the NCTE Act.
25.Having considered the aforesaid judgments, the issue as to whether a candidate can be excluded from consideration for admission to the Special B.T.C. Course on the ground that he had obtained degree/diploma/certificate in LT/B.P.Ed./D.P.Ed. /C.P.Ed. from an institution recognized by the NCTE situate outside the State of U.P. was not under consideration, nor in issue in any of the judgments. In all the judgments considered, what was under consideration, was merely an issue in the matter of essential qualification for appointment to the post of Assistant Teacher. As we have noted earlier, the essential distinction is (1) appointment to a post under the Rules of 1981 and (2) eligibility for admission to Special BTC course, which may result in a candidate becoming eligible for appointment as an Assistant Teacher by acquiring an essential education qualification."
The Full Bench also noted that some of the issues, which arose in Upendra Rai (supra), have been referred by the Supreme Court to a larger Bench in Irrigineni Venkata Krishna & Ors. Vs. Govenrment of Andhra Pradesh & Anr., 2009 (14) SCALE 110.
The question for our consideration is, whether the view taken by the learned Single Judge is contrary to the view taken in Upendra Rai (supra). It is no doubt true that in Upendra Rai (supra), the Supreme Court was pleased to hold that in the matters of policy decision, Courts should exercise judicial restraint. The Court was further pleased to hold that the grant of equivalence and/or revocation of equivalence is an administrative decision. It is no doubt true that in the said case, respondents had got admission after issuance of circular dated 11.08.1997, which was no longer regarded as equivalent to BTC after the circular dated 11.08.1997. It appears that the attention of the Judges deciding Upendra Rai (supra) was not invited to an earlier judgment of another coordinate Bench in Suresh Pal (supra), which had considered the issue as to the effect of revocation of recognition in respect of students who had joined the course in anticipation that the certificate to be obtained by them would be regarded as equivalent for the purpose of appointment. We may gainfully reproduce the following part of paragraph 3 of the judgment in Suresh Pal (supra), which reads as under:-
"3. We are of the view that since at the time when the petitioners joined the course, it was recognized by the Govt. of Haryana and it was on the basis of this recognition that the petitioners joined the course, it would be unjust to tell the petitioners now that though at the time of their joining the course it was recognized, yet they cannot be given the benefit of such recognition and the certificates obtained by them would be futile, because during the pendency of the course it was derecognized by the State Govt. on 9th January, 1985. We would, therefore, allow the appeal and direct the State Govt. to recognize the certificates obtained by the petitioners and others similarly situate as a result of completing the certificate course in Shri Hanuman Yayayam Prasarak Mandal Amravati for the purpose of appointment as Physical Training Instructor in Govt. Schools in Haryana. ..."
This aspect of the matter was not considered in Upendra Rai (supra).
Another Division Bench of this Court in Bhagwat Narain Chaturvedi & Anr. Vs. State of U.P. & Ors., Special Appeal No. 1426 of 2010, decided on 07.09.2010, after noticing the judgment in Suresh Pal (supra) that subsequent de-recognition would not take away the rights that have accrued in favour of such candidates who have obtained the certificates when the valid equivalence was in existence, allowed the appeal in respect of candidates who had obtained certificate, which was treated as equivalent but which subsequently was withdrawn. The principle being that such candidates have a legitimate expectation that their certificates will be treated as equivalent to B.T.C as they had pursued the course on that basis.
Our attention was also invited by the learned counsel on behalf of the appellants, to the judgment in the case of Mohd. Sartaj & Anr. Vs. State of U.P. & Ors., (2006) 2 SCC 315. In that case, the appellants were appointed subsequent to an advertisement dated 15.01.1984 on the basis of certificate of Moallim-E-Urdu for teaching Urdu. On 13.09.1994, the Government recognized the said certificate. The question was, whether such subsequent recognition will protect the appellants who, on the date of appointment, did not have the qualification, which was recognized as equivalent. The Supreme Court considered that aspect of the matter and was pleased to hold that, admittedly, on the date of appointment, the appellants did not hold the training certificate to be appointed to the post of Assistant Teachers and the subsequent recognition would be of no consequence. That judgment will be of no assistance.
In the light of that, in our opinion, the appeal has no merit. The order of the learned Single Judge is sustained. The appeal is, accordingly, dismissed.
October 01, 2010 AHA (Ferdino I. Rebello, C.J.) (Pradeep Kant, J.)