By way of this petition under Article 226/227 of the Constitution, the petitioner, a teacher in a Primary Training College, seeks to challenge order dated 18.4.2001, passed by Joint Director of Education, State of Gujarat and also the order dated 19.6.2001, passed by District Education Officer, Patan and thereby not confirming the appointment of the petitioner on the post of Assistant Teacher in a school, which is being run and managed by respondent No.4 Trust. 2. The record reveals that respondent No.4 issued an advertisement for the post of Assistant Teacher possessing the following qualifications, after getting the NOC.
Graduate in Arts or Science and Diploma in Second Class in Buniyadi Education or Graduates in education Second Class from recognized University.
2.2 Petitioner was called for interview on 29.6.1999. A duly constituted Selection Committee comprising of (1) The Managing Trustee, Ranuj Kelawani Mandal, (2) the Principal of Adhyapan Mandir (3) Representative and (4) outside educationist interviewed the petitioner and found the petitioner to be meritorious and accordingly, the petitioner came to be selected. Record reveals that the Joint Director of Education accorded approval to the selection of the petitioner by letter dated 1.1.2000, which has been annexed in the petition and marked as Annexure "C". Petitioner was served with an appointment order dated 7.1.2000 and he joined duty with effect from 11.1.2000. It appears that the Education Department started sanctioning regular salaries to the petitioner from the date of joining under Direct Payment Scheme.
2.3 The Joint Director of Education directed respondent No.4 to relieve the petitioner by letter dated 29.3.2000, as according to the Joint Director of Education, the petitioner was not holding requisite qualifications on the date of his appointment. In view of the directions which were issued by the Joint Director of Education, respondent No.4 passed an order dated 17.4.2000 terminating the services of the petitioner with effect from 30.4.2000.
2.4 It appears that the petitioner, being aggrieved by the action of respondent No.4 in terminating his services, challenged the same by filing SCA No. 4089 of 2000 in this Court. It appears that SCA No. 4089 of 2000 was admitted and vide order dated 27.4.2000, the implementation and operation of the order terminating the services of the petitioner was stayed. The matter was taken up for final disposal by learned Single Judge on 4.8.2000. Learned Single Judge took notice of two aspects (1) whether the petitioner can be said to be possessing the requisite educational qualifications as prescribed by NCTE and (2) whether the Trust could have appointed the petitioner to the post of a Teacher as he was holding a degree in Bachelor of Rural Studies and not a Second Class Bachelor Degree. Thus, the question before the learned Single Judge was whether degree in Rural Studies can be said to be either a Diploma or a degree in Basic education. Learned Single Judge noticed that no supporting material was placed by either of the parties on the record of the matter, which would have enabled learned Single Judge to decide the issue. Learned Single Judge also noticed that the petitioner was not given any opportunity of hearing before terminating his services. Learned Single Judge also stated that respondent No.1 though cannot be said to be a "State" within the meaning of Article 12 of the Constitution of India, still it would be bound by the principles of natural justice. Accordingly, learned Single Judge thought fit to quash and set aside the order on the short ground of violation of principles of natural justice and directed the Trust to take appropriate action pursuant to the instructions contained in the communication dated 29th March, 2000, if desired, after offering an opportunity of showing cause to the petitioner. Learned Single Judge also clarified in its order that the question whether the petitioner possesses requisite qualification or Diploma in basic education or not, shall also be decided by the Trust.
2.5 It appears that after the order dated 4.8.2000 passed by learned Single Judge (Coram: Hon'ble Ms. Justice R.M. Doshit) in SCA No. 4089 of 2000, respondent No.4 Trust constituted a Committee of experts to look into the issue as to whether the degree in Rural Studies can be said to be either a Diploma or a degree in basic education. My attention has been invited by learned Advocate Mr. Gandhi, appearing for the petitioner and Mr. B.D. Karia, appearing for respondent No.4 Trust, on the report of the Committee. The report has been annexed at page 28 as Annexure "F". The Committee concluded vide its report dated 15.12.2000 that the petitioner holds requisite educational qualifications for being appointed on the post in question and deserves to be continued on the said post.
2.6 However, it appears that the District Education Officer, Patan, vide his communication dated 19.6.2001 addressed to respondent No.4 did not approve the appointment of the petitioner on the post in question, in view of the order passed by the Joint Director of Eduction dated 18.4.2001, annexed as Annexure "A" to this petition. A bare perusal of the order dated 18.4.2001 passed by the Joint Director of Education would go to show that as such no reasons have been assigned except by saying that the earlier decision dated 29.3.2000 is being confirmed and maintained. In the communication dated 18.4.2001, the Trust - respondent No.4 was informed that the decision of the Trust to continue the petitioner on the post as he is holding requisite educational qualification is not being accepted and the Trust was directed to terminate the services of the petitioner.
2.7 At this stage, the petitioner was left with no other option but to once again come before this Court by way of this petition.
3. It appears that the petition came to be admitted and ad- interim relief in terms of paragraphs 9(C) and 9(D) as prayed for in the petition was granted pending admission and final disposal of this petition.
In view of the relief which was granted on 12.12.2001, the petitioner has continued in service till this date.
4. I have heard learned Advocate Mr. N.V. Gandhi for the petitioner, Ms. Shruti Pathak, learned Assistant Government Pleader for respondents Nos. 1, 2 and 3 and learned Advocate Mr. B.D. Karia for respondent No.4. Mr. Gandhi submitted that the petitioner was appointed after following the regular procedure for selection and as the petitioner has been given the appointment order after getting prior permission from the Joint Director of Education and as the petitioner was covered under Direct Payment Scheme from the date of appointment, the services of the petitioner could not have been put an end to without following the requisite procedure. He contended that neither the Joint Director of Education, nor any authority can sit in appeal against the report given by the Committee constituted by respondent No.4 Trust to look into the issues as directed by learned Single Judge while disposing of SCA No. 4089 of 2000. He further submitted that the National Council for Teachers' Education (for short "NCTE") has laid down the norms as regards the academic qualification required by a Teacher in the PTC College. He has invited my attention to an order dated 12.10.2000 issued by National Council for Teachers Education, wherein it has been stated that in exercise of the powers vested under Section 14(3)(a) of the National Council for Teachers Education Act, 1993, the Western Regional Committee grants recognition to Shri S.M. Modi Basic Training College for Men, Ranuj, Dist. Mehsana for PTC Course of 2 years from the academic session 2000-2001 with an annual intake of 45 students, subject to fulfilling the following conditions:-
(1) The institution shall appoint for a period of one year one additional teaching staff possessing the academic qualifications as laid down in the NCTE norms, the salary structure prescribed by the State Government.
(2) All such teachers already appointed who do not fulfil the NCTE norms shall acquire the qualifications as per the norms within a period of two years of this order.
(3) The institution shall ensure library, laboratories and other instructional infrastructure as per the NCTE norms.
(4) The admission to the approved course shall be given only to those candidates who are eligible as per the regulations governing the course and in the manner laid down by the State Government.
(5) Tuition fee and other fees will be charged from the students as per the norms of the State Government till such time NCTE regulations in respect of fee structure come into force.
(6) Curriculum transaction, including practical work/activities, should be organised as per the norms and standards for the course and the requirements of the examining body.
(7) Teaching days including practice teaching should not be less than the number fixed in the NCTE norms for the course.
(8) The institution, if unaided, shall maintain endowment and reserve fund as per NCTE norms.
(9) The institution shall continue to fulfil the norms laid down under the regulations of the NCTE and submit to the Regional Committee the Annual Report and the Performance Appraisal Report at the end of each academic year. The Performance Appraisal Report should inter alia give the extent of compliance of the conditions indicated at 1 to 8 above.
5. Mr. Gandhi therefore, submitted that pending the disposal of this petition, there has been an important development in the nature of petitioner obtaining a requisite degree of Bachelor of Education from South Gujarat University in the year 2003. This fact has not been disputed by any of the respondents. So the position as on today would be that the petitioner possesses the degree of Rural Studies (i.e. BRS) and over and above, he possesses the Post Graduate Degree i.e.
M.A from Gujarat Vidhyapith. The details of the qualification possessed by the petitioner as on today are as under:-
(i) Bachelor of Rural Studies (B.R.S) - 1st Class.
(ii) M.A. Gujarat Vidhyapith - 2nd Class
(iii) B.Ed (Basic Education), South Gujarat University - 1st Class.
6. Learned Advocate Mr. B.D. Karia appearing for respondent No.4 while supporting the case of the petitioner submitted that pursuant to the directions issued by learned Single Judge dated 4.8.2000 passed in SCA No. 4089 of 2000, the Trust constituted a Committee of experts to look into the issues which were raised by the learned Single Judge and directed by the learned Single Judge to be decided by the Trust. Accordingly the Committee looked into the issues and gave a detailed report that the petitioner is holding requisite qualifications for the post of Teacher in the College. He submitted that by now petitioner has put in more than 12 years of service and his performance has been upto the mark so far. He therefore submitted that the petition be allowed and petitioner must be allowed to continue in the College.
7. Per contra, Ms. Shruti Pathak, learned Assistant Government Pleader appearing for respondents Nos. 1, 2 and 3 vehemently submitted that obtaining of B.Ed degree from South Gujarat University in the year 2003 will not make any difference because, on the date of advertisement and on the date of petitioner's appointment, he was not holding valid requisite qualification. She submitted that in this view of the matter, subsequent developments will not change the legal position that a person should hold and possess requisite qualification on the date of the appointment and not at a later stage. She therefore submitted that there is no merit in this petition and the petition deserves to be dismissed.
8. Having heard learned counsel for respective parties and having gone through the material on record, the only point for my consideration now at this stage is whether petitioner should be allowed to continue as a Teacher in the College or not, more particularly taking into consideration the subsequent event of petitioner obtaining a valid B.Ed degree from South Gujarat University, which is a recognized degree by NCTE. Learned AGP Ms. Pathak is right in her own way in submitting that on the date on which the petitioner was appointed, he was not holding a valid B.Ed degree obtained from South Gujarat University and therefore, his appointment can be termed as illegal.
An identical issue came up before the Supreme Court in a batch of Civil Appeals, the main being Civil Appeal No. 1272 of 2011 in the case of State of Orissa & anr. Vs. Mamata Mohanty, decided on 9.2.2011. In the said case before the Supreme Court also most of the Teachers did not possess the minimum qualification i.e. 55% marks in Masters Course, and some of them acquired it much later date. The contention before the Supreme Court was that Utkal University at Bhubaneshwar had condoned the deficiency of eligibility - qualification by passing general orders from time to time. However, the Supreme Court noticed that they failed to point out any statutory provision conferring competence upon the University to condone the deficiency. Ultimately, the Supreme Court came to the conclusion that a Teacher who had been appointed without possessing the requisite qualification at the initial state cannot get the benefit of Grant-in-Aid Scheme unless he acquires the additional qualification, and therefore, question of grant of U.G.C Pay-scale would not arise in any circumstance unless such Teacher acquires the additional qualification making him eligible for the benefit of Grant-in-Aid Scheme. The Supreme Court held that the cumulative effect therefore comes to that such Teacher will not be entitled to claim U.G.C Pay-scale unless he acquires the higher qualification i.e. M.Phil/Ph.D.
9. The Supreme Court also took into consideration the fact that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant- in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. It also held that so far as the grant of U.G.C Pay-scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. Accordingly, Supreme Court held that the impugned judgment/order could not be sustained in the eye of law.
I deem it proper to quote paragraphs 47, 48 and 49 of the judgment.
"47. In view of the above, it stands crystal clear that a teacher who had been appointed without possessing the requisite qualification at initial stage cannot get the benefit of grant-in-aid scheme unless he acquires the additional qualification and, therefore, question of grant of UGC pay scale would not arise in any circumstance unless such teacher acquires the additional qualification making him eligible for the benefit of grant-in-aid scheme. The cumulative effect therefore comes to that such teacher will not be entitled to claim the UGC pay scale unless he acquires the higher qualification i.e. M.Phil/Ph.D.
48. In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eyes of law.
49. The full particulars of the respondent-teachers are not before us as in some cases there had been claim and counter claim of possessing the requisite marks i.e. 54% in Master's Course, as in Civil Appeal No. 1253 of 2011, State of Orissa & Anr. v.
Lokanath Mishra & Ors. Thus, we pass the following directions:
(i) In case of dispute regarding possessing of 54% marks, the authorities, Secretary of Higher Education/Director of Higher Education may examine the factual position and decide the case of individual teachers in accordance with law laid down in this case;
(ii) If a person did not possess the requisite qualification on the date of appointment and was not entitled for grant-in-aid scheme unless he completes the deficiency, his case would be considered from the date of completing the deficiency for grant of UGC pay scale. However, in no case, the UGC pay scale can be granted prior to the date of according the benefit of the grant-in-aid scheme, i.e. by acquiring the degree of M.Phil/Ph.D;
(iii) The aforesaid exercise shall be completed within a period of four months from today; and (iv) The arrears of pay, if any, shall be paid to the teacher concerned within a period of four months thereafter."
10. The second contention of learned AGP Ms. Pathak is to the effect that the degree obtained by the petitioner so far as Bachelor of Rural Studies is concerned, the same is not equivalent to Second Class Bachelors Degree in Arts or Science of a recognized University as required under the Rules and for this reason also the petitioner cannot be said to be holding requisite educational qualification for the post. I think the answer to this contention is in the earlier order of learned Single Judge dated 4th August, 2000, wherein the learned Single Judge has observed that " the petitioner possesses the qualification of 2nd Class Masters Degree in Arts from Gujarat Vidyapith (which is a recognized degree) and a First Class Bachelors Degree in Rural Studies conferred by Nutan Bharti Gram Vidyapith, which according to the petitioner is a degree recognized by the State Government as equivalent to the Bachelors Degree in Arts. The petitioner also possesses 2nd Class Bachelors Degree in Education conferred by Hindi Sahitya Sammelan, Allahabad.
11. To sum it up, I may state that the petitioner is in continuous service for a period of more than about 12 years by now and has successfully obtained the degree of Bachelor of Education from South Gujarat University, which would entitle him to continue on the post in question. Over and above this, I have also noticed that in the order which has been passed by the Joint Director of Education, there is no discussion worth the name as far as the report of the Committee is concerned. Be that as it may, I am of the view that it cannot be said that the petitioner is not holding valid requisite qualification so as to disentitle him to continue on the post in question. In view of the aforesaid, the order dated 18.4.2001 passed by the Joint Director of Education and order dated 19.6.2001 passed by the District Education Officer are hereby quashed and set aside. It is declared that the petitioner is holding valid requisite qualifications to hold the post of Teacher in the College run and managed by respondent No.4. Rule is made absolute with no order as to costs.
*/Mohandas (J.B. Pardiwala, J.)