Heard Sri G.S. Bhatt, learned counsel for the petitioner and Sri Gajendra Pratap Singh, Senior Advocate, Assisted by Sri D.S.M. Tripathi, learned counsel for the respondent no.5 as well as Sri Pankaj Rai, learned Additional Chief Standing Counsel, appearing on behalf of other respondents.
By means of the present petition, the petitioner is seeking a writ of certiorari quashing the approval order dated 9.7.2004, passed by the District Basic Shiksha Adhikari, Varanasi, Annexure-4 to the writ petition and further quashing of the entire selection proceeding held on 8.4.2004 for the post of Headmistress of Sri Krishna Balika Vidyalaya Junior High School, Bula Nala, Varanasi and further a writ of mandamus to the respondent nos. 1, 2 ,3 and 4 to make a fresh selection of the candidates for appointment on the post of Headmistress.
By the order dated 9.7.2004, the District Basic Shiksha Adhikari, Varanasi granted approval for selection of Smt. Meela Yadav, respondent no.5, for appointment on the post of Headmistress in Sri Krishna Balika Vidyalaya Junior High School, Bula Nala, Varanasi.
The brief facts, giving rise to the present writ petition, are that Sri Krishna Balika Vidyalaya Junior High School, Bula Nala, Varanasi (hereinafter referred to as the 'institution') is being run and managed by the committee of management duly registered under the Societies Registration Act, 1860. The institution is recognised and aided by the Government and as such the salary to the teachers and other staff is being paid under the provisions of U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978.
In the year 2003, the vacancy to the post of Headmistress in the institution occurred and the Management of the institution decided to fill up the same under intimation to the respondent no.3. The applications were invited through publication in daily news paper 'Dainik Jagran' on 31.8.2003. In pursuance of the aforesaid advertisement, eleven applications were received, including that of the petitioner and the respondent no.5. The educational qualification of Smt. Meela Yadav, respondent no.5, Dr. Chandra Kumar, the petitioner and Smt. Rashmi Singh are as follows:
Sl.No Name H.S.
Inter B.A.
B.T.C./ B.Ed Experience 1 Smt.Meela Yadav 1988 II Div.
II Div.
II Div.
B.Ed.2002 Written II Div Practical- Ist Div.
1.7.97 to 1.7.01 (Assttt. Teacher 2 Dr. Chandra Kumari 1986 II Div.
II Div.
II Div.
B.Ed. 1982 written-III Div. Practical- II Div.
1998 to till date Assistant Teacher 3 Smt. Rashmi Singh 1985 IInd Div.
1987 II Div.
1991 II Div.
B.Ed. 1992 Written II Div. Practical IInd Div.
(i) From 1.7.94 part time Assistant Teacher
(ii) 11.1.2002 16, May 2002
(iii) 1.7.2002 to 30.4.2003 (All Inter College The interview was held on 8.4.2004. It appears that Smt. Meela Yadav was selected by the Selection Committee and the District Basic Shiksha Adhikari, Varanasi vide its order dated 9.7.2004 granted approval to the said selection.
Being aggrieved by the appointment of the respondent no.5 and the order of the District Basic Education Officer, Varanasi, granting approval to the said selection, the petitioner filed the present writ petition. This Court, vide order dated 24.11.2004 has granted an interim order. This Court has directed to keep order of approval dated 9.7.2004 in abeyance and the same shall not be implemented and given effect to.
It is the case of the petitioner that Smt. Meela Yadav has not filed the certificates of her M.A. and B.Ed. Degrees alongwith her application. At the time of the interview, the certificates were not on record. Those certificates were filed subsequently and even the certificates were not attested and as such could not have been relied upon. Similar was the position of Smt. Meena Srivastava, Smt. Seema Singh, Kumari Rashmi Chitrawansi, Km. Sunita Misra, Smt. Sangita Yadav and Km. Rukmani Kumari, but while awarding quality point marks, except Smt. Meela Yadav, no other candidate was awarded quality point marks. Even though Smt. Meela Yadav did not file M.A. and B Ed. Degrees, but she has been awarded five quality point marks for B.Ed. Sri Munna Lal, Manager of the Committee of Management of the institution filed a complaint stating therein that several irregularities were committed in the said selection.
Learned counsel for the petitioner submitted as follows:
(i) Smt. Meela Yadav has not filed the certificates of M.A. and B.Ed. Degrees alongwith the application, therefore, the application was incomplete and as such her application should not have been entertained. The certificates were filed on 8.4.2004 and that too were not attested and, therefore, not admissible. In support of the submission, he placed reliance on the decisions of the Apex Court in the cases of Ashok Kumar Sonkar vs. Union of India and others, reported in (2007) 4 SCC 54 and T. Jaya Kumar vs. A. Gopu and another, reported in (2008) 9 SCC 403. He submitted that even the certificates were not available on record, but she has been awarded five quality point marks, though in the case of others where the certificates have not been filed alongwith the application, the quality point marks were not awarded.
(ii) The Manager of the institution filed a complaint that in fact no interview has been held and the entire selection proceeding was farce, but no enquiry in this regard has been made.
(iii) As per the averment made in the counter affidavit filed by the District Basic Education Officer, Varanasi, it is admitted that one of the candidate, namely, Sangeeta Yadav was related with the member of the Committee. Therefore, the constitution of the Selection Committee was irregular. The member of the Committee, who was related to such candidate, was disqualified. Reliance has been placed on the decision of the Apex Court in the case of District Basic Education Officer and another vs. Dhananjai Kumar Shukla and another, reported in (2008) 3 SCC 481.
(iv) Under the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, the minimum qualification for the post of Headmistress is provided under Rule 4(2) and Rule 5 provides eligibility for appointment to the post of Head Mistress. Rule 4(2) provides that the minimum qualification for the appointment to the post of Head Mistress of a recognised Basic Junior High School is Degree from a recognised University or an equivalent examination recognised as such; Teacher's Training Course recognised by the State Government or the Board, such as, Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and Three years teaching experience in a recognised school. Rule 5 provides that no person shall be appointed as Headmaster in a substantive capacity in any recognised institution, unless he possesses the minimum qualification prescribed for such post. He submitted that Smt. Meela Yadav was M.A. B.Ed. and she has not done Teacher's Training Course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate and she also did not possess three years' teaching experience in a recognised school. Thus, she did not possess minimum qualification. Therefore, the appointment was not justified. He also submitted that the candidate having B.Ed. Degree is not eligible for the appointment in the primary school inasmuch as the B.Ed. Degree is not recognised by the Rule as the minimum qualification. The reliance is placed on the decisions of the Apex Court in the case of P.M. Latha and another v. State of Kerala and others, reported in JT 2003 (2) SC 423, Yogesh Kumar and others v. Government of NTC Delhi and others, reported in JT 2003(2) SC 453 and Mohd. Sohrab Khan v. Aligarh Muslim University and others, reported in (2009) 4 SCC 555.
Learned counsel for the respondent no.5 submitted that Clause (b) of Rule 4(2) provides one of the minimum qualification, namely, Teacher's Training Course recognised by the State Government or the Board, such as, Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate. The word 'such as' is only illustrative not exhaustive and B.Ed. Course also comes within the purview of Teacher's Training Course and, thus, the respondent no.5 fulfils the minimum qualification. He further submitted that the respondent no.5 has been awarded five marks for quality point marks on the basis of the teaching experience and the respondent no.5 having obtained higher marks than the other candidates has been selected and her selection has been approved after due consideration.
I have considered rival submissions, perused the record and the relevant Rules as well as the decisions cited by the learned counsel.
In the case of P.M. Latha and another vs. State of Kerala and others (Supra), the Apex Court, while dealing with the appointment of the teachers in the primary school whereof the teacher's training certificate was the requisite qualification, considered the question whether the candidates with B.Ed. qualification are entitled for the post. The Apex Court has held as follows:
"10. We find absolutely no force in the argument advanced by the respondents that B.Ed. Qualification is a higher qualification that TTC and therefore, the B.Ed. candidates should be held to be eligible to compete for the post. On behalf of appellants, it is pointed out before us that trained teachers certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed. degree, the training imparted is to teach students of classes above primary. B.Ed. degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for post of primary teachers as only TTC and not B.Ed. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates, for the present vacancies advertised, as eligible."
In the case of Yogesh Kumar and others v. Government of NTC Delhi and others (supra), the Apex Court held that since trained teacher's certificate is given to the teachers, specially trained to teach small children in primary schools, B.Ed. degree holders cannot necessarily be held to be holding qualification suitable for appointment as teachers in the primary schools. It is open to the recruitment authorities to evolve a policy of recruitment and to decide the source from which recruitment is to be made. The view of the High Court that the candidate with B.Ed. degree were not entitled for selection and appointment as primary school teachers has been upheld.
In the case of Ashok Kumar Sonkar vs. Union of India and others (Supra), the Apex Court held that in absence of any cut off date specified in the advertisement or in the Rules, the last date for filing the application must be considered as the cut off date. The requisite qualification must be fulfilled on the said cut off date.
In the case of District Basic Education Officer and another vs. Dhananjai Kumar Shukla and another (Supra), the son of the Manager was appointed as Headmaster. The Apex Court held that the Manager was disqualified to participate in the process of the appointment and such act amounted to fraud on administration and the appointment of the son was held nullity.
In the case of T. Jayakumar vs. A Gopu and another (Supra), the first application did not bear applicant's signature and the second application was filed after closing date. The candidate was called for interview, but his candidature has been rejected on the ground that his first application did not bear his signature and the second application was received after closing date. Thus, both the applications have been held invalid.
In the case of Mohd. Sohrab Khan vs. Aligarh Muslim University (Supra), it has been held that the recruitment must be conducted according to the prescribed educational qualification. It has been held that the University, after advertising the educational qualification as Master's Degree in Chemistry for the post of Lecturer in the University Polytechnic, could not appoint a person with qualification in Industrial Chemistry.
In the counter affidavit filed by Sri Ram Lakhan Ram, the Deputy District Basic Education Officer, Varanasi dated 23.11.2004, the charts showing the details of the applications filed by the candidates are enclosed, which are at pages 15 to 18. From perusal of the charts, it appears that in the column of Smt. Meena Yadav, it is mentioned that "Praman Patra Prapt Hua. 8.2.2004". It appears that in the said column earlier the words "B.Ed. Va M.A. Praman Patra Anupalak. Praman Patra Satyapit Nahin Hain" were mentioned, but lateron those words have been cut down. It shows that alongwith the application, certificates of B.Ed. and M.A. were not filed and they were filed on 8.2.2004, that is, on the date of the interview.
Rules 4 and 5 of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 read as follows:-
"4. Minimum qualification.- (1) The minimum qualification for the post of assistant teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teacher's training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training.) (2) The minimum qualification for the appointment to the post of Headmaster of a recognised school shall be as follows:
(a) A degree from a recognised University or an equivalent examination recognised as such;
(b) A teacher's training course recognised by the State Government or the Board, such as, Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and
(c) Three years teaching experience in a recognised school.
5. Eligibility for appointment.- No person shall be appointed as Headmaster or assistant teacher in substantive capacity in any recognised school, unless-
(a) he possesses the minimum qualification prescribed for such post;
(b) he is recommended for such appointment by the Selection Committee."
Rule 5 provides that no person shall be appointed as Headmaster in substantive capacity in any recognised school, unless he possesses minimum qualification prescribed for such post. Minimum qualification for the post of Headmaster is prescribed under Rule 4(2), which is (a) a Degree from a recognised University or an equivalent examination recognised as such, (b) A teacher's training course recognised by the State Government or the Board, such as, Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate and (c) Three years teaching experience in a recognised school. For appointment of Headmistress, the candidate should possess all the above three qualifications. If any of the qualification is missing, he/she would not be eligible for appointment. Admittedly, the respondent no.5 did not possesses Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate. The word 'such as' does not mean all sorts of Teacher's Training Course. It only includes those Teacher's Training Courses which are alike Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate suitable for teaching to the students of Junior High School and is recognised by the State Government or the Board. The Legislature, having regard to the nature of education in Junior High School has prescribed the Training Certificates in the Rule. Therefore, such certificate or any alike certificate, recognised by the State Government or the Board, can only be considered as a requisite qualification. It is not the case of the petitioner that B.Ed. is recognised by the State Government or the Board asthe qualified training for the purposes of rule. Therefore, B.Ed cannot be said to be qualification under the rule. Thus, the respondent no.5 was not eligible for the appointment on the post of Headmistress inasmuch as she did not possess requisite qualification prescribed in the Rule No.4.
In the case of State of M.P. And others v. Shyama Pardi and others, reported in 1996 (7) SCC 118, the Apex Court held that an appointment made in the absence of requisite qualification, prescribed under rules, is void ab initio and neither it confers any right upon the person concerned to hold the post or continue if he/she has been appointed, though did not possess requisite qualification nor any direction for payment of salary can be issued in such cases. In the case of Mohd. Sartaj and another vs. State of U.P. and others, reported in JT 2006 (1) SC 331, the Apex Court held that an appointment, lacking requisite qualification, would be a nullity. Similar view has been taken by this Court in a recent decision in the case of Ajay Singh vs. State of U.P. and others, reported in 2012 (4) AWC 3738.
Moreover, her application was incomplete. Her application ought to have been complete in all respects for consideration at least upto the last date of filing of application. If the certificates have not been filed alongwith the application, the application was incomplete and could not have been considered. Therefore, the Selection Committee has erred in considering the application of the respondent no.5.
In the result, the writ petition is allowed. The entire selection process held on 8.2.2004, the selection of the respondent no.5 and the order of approval passed by the District Basic Education Officer, Varanasi dated 9.7.2004 for the selection of respondent no.5 are quashed.
Parties shall bear their own cost.
Order Date :- 31. 8 .2012 bgs/