Heard Sri Himanshu Raghave, learned counsel for the petitioners, learned Standing Counsel for the State-respondents, Sri Ghaus Beg, learned counsel for opposite parties no.4, 5 & 6, Sri O.P.M. Tripathi, learned counsel for opposite party no.7 and Sri Mahendra Kumar Mishra, learned counsel for Union of India.
Sri Ghaus Beg has filed short counter affidavit in both the aforesaid writ petitions. Since these cases have been filed through e-mode, therefore, those short counter affidavits may not be taken on record. I have perused those short counter affidavits. Since both the aforesaid writ petitions are being decided finally, therefore, it would be expedient in the interest of Department that the aforesaid short counter affidavits be filed through e-mode and be uploaded on the website of the cases and the office is directed to process the filing of those short counter affidavits.
It has been informed at the bar that both the writ petitions are identical in nature, even the dates of orders are the same and prayers are the same, therefore, with the consent of respective counsels for the parties, both the writ petitions are being decided by the common judgment.
Prayer of both the writ petitions are same. Prayers of Writ Petition No.13584 (S/S) of 2020 are as under:-
"WHEREFORE, the petitioner most respectfully prays to:
(i) to issue a writ, order or direction in the nature of Certiorari or likewise thereby quashing the petitioner's Appointment-Cancellation Order dated 13.07.2020 (Annexure No.1) issued by the District Basic Education Officer, Behraich on the basis of the consensual decision and instructions of the District Selection Committee, Behraich, from the date of appointment;
(ii) to issue a writ, order or direction in the nature of Certiorari or likewise thereby quashing the decision of the District Selection Committee, Behraich (after summoning the same) on the basis of which the petitioner's Appointment-Cancellation Order dated 13.07.2020 has been issued by the District Basic Education Officer, Behraich;
(iii) to issue a writ, order or direction in the nature of Certiorari or likewise thereby quashing the Letter/Order dated 09.04.2020 (Annexure No.2) of the Secretary, Uttar Pradesh Basic Education Board, Allahabad;
(iv) to issue a writ, order or direction in the nature of Mandamus or likewise thereby commanding the opposite parties competent to allow the petitioner to work as Assistant Teacher, Primary School-Bhanghar-II, Vikas-Khand-Nawabganj, Behraich and his service be treated as continuous and he be given all the consequential benefits;
(v) to issue a writ, order or direction in the nature of Mandamus or likewise thereby commanding the opposite parties competent to pay to the petitioner the salary in lieu of his continuous working on the post of Assistant Teacher from October, 2018 to July, 2020;
(vi) to issue an appropriate writ holding non-inclusion of training qualification-DIPLOMA IN ELEMENTARY TEACHER TRAINING COURSE (from The Jammu & Kashmir Board of School Education) or its equivalent from the State of Jammu and Kashmir, which is beyond the purview of the National Council for Teacher Education, in the minimum qualifications given in para 4 of the Guidelines annexed with the Government Order dated 09.01.2018 (Annexure No.3) as also prescribed in Rule 8 of the Uttar Pradesh Basic Education (Teacher) Service Rules, 1981 as arbitrary and unconstitutional;
(vii) to issue a writ, order or direction in the nature of Mandamus or likewise thereby commanding the opposite parties competent to consider treating the petitioner's training qualification-DIPLOMA IN ELEMENTARY TEACHER TRAINING COURSE (from The Jammu & Kashmir Board of School Education) within the admissible qualifications for the purpose of selection and appointment of Assistant Teachers in the selection process for 68,500 Assistant Teachers;
(viii) pass such other order as the merits of the case admit of; and
(ix) Award the cost of this petition."
Learned counsel for the petitioners has informed the Court that identical controversy has been considered and decided by this Court vide judgment and order dated 19.11.2020 in Writ-A No.403 of 2020; Smt. Shalu Sharma and Another Vs. State of U.P. and others; for the convenience, the judgment and order dated 19.11.2020 is being reproduced herein below:-
"1. Heard Sri Ashok Khare, Senior Advocate assisted by Sri R.P. Mishra, counsel for the petitioner and Sri Dhananjay Awasthi appearing on behalf of the Respondent No. 5, Sri Sanjay Kumar appearing on behalf of the Respondents No. 3 and 4 and perused the record.
2. The present writ petition has been filed challenging the order dated 27.11.2019 whereby the petitioner has been denied the joining solely on the ground that diploma obtained by the petitioner in Elementary Teacher Training Course from the State Board of School Education Jammu/Sri Nagar is not recognized by National Council for Teacher Education (in short 'NCTE').
3. The facts giving rise are as follows:-
4. The Petitioner No. 1 claims to have completed diploma in Vidhya ETT Institute Hatli Morh Kathua and Petitioner No. 2 claims to have completed from Guru Nanak ETT Jallo Chak Jammu and have also cleared Central Teacher Eligibility Test, which is necessary qualification for appointment as Assistant Teacher in establishments governed by the Basic Shiksha Parishad, U.P., Allahabad. It is further submitted that the service condition of the Assistant Teacher in Primary School established by the Basic Shiksha Parishad are governed under the provisions of Rule 8 of the U.P. Basic Education (Teachers) Service Rules, 1981 and Rule 8 thereof provides for the necessary qualification for appointment of Assistant Teachers. It is further argued that under the enactment U.P. Right of Children to Free and Compulsory Education Rules, 2011 also provides that minimum educational qualification for teachers would be same as provided by the competent authority authorized by the Central Government. It has been further argued that NCTE is the authority competent to determine the minimum educational qualifications for the appointment of Assistant Teachers. Petitioner claims that in terms of the notification dated 23.8.2010, it is provided training qualification of diploma in Elementary Teacher Training Course are eligible and thus the petitioners as having obtained two years diploma in Elementary Teacher Training (in short 'ETT') from Jammu and Kashmir are having requisite qualification for appointment. However, the same has been denied to the petitioners solely on the ground that in the notification issued by NCTE, it has been provided that diploma given by the institute established by law in India would be considered as requisite qualification and as Jammu and Kashmir was not included in the list of Universities established by law in India, the diploma issued by ETT in Jammu and Kashmir could not be considered a valid qualification. The petitioners have also relied upon the clarification dated 27.6.2007 issued by the NCTE to the following effect:-
"This is in continuation of our letter of even number dated 31-5-07 on the above mentioned subject. The following clarification have further been issued by Ministry of HRD.
"a diploma or certificate in teacher education awarded by an institute/university in the State of Jammu & Kashmir is also valid for employment in other parts of the country subject to the provisions of the Act. In other words such certificates/diplomas will also have to be treated on the same footing as a degree awarded by such institutions"."
5. Thus, Sri Ashok Khare argues that once a clarification has been issued by NCTE, no ambiguity remains with regard to the qualification of the petitioners. He further argued that in pursuance to the Act 34 of 2019 i.e. The Jammu and Kashmir Reorganisation Act, 2019, no apprehension should remain with regard to qualification of the petitioners only on the ground of having been issued by the authorities in the State of Jammu and Kashmir.
6. Sri Dhananjay Awasthi appearing on behalf of the Respondent No. 5 concedes very fairly that after the enactment of Act 34 of 2019, the issue should not arise although no notification in pursuance to the enactment No. 34 of 2019 has been issued. Thus, what has to be considered whether the Elementary Teacher Training Certificate granted from Jammu and Kashmir would be considered to be a requisite qualification for appointment. A full Bench of this Court in 2013 ADJ (6) 310 after considering the provisions of various statutes held that for appointment to the post of Assistant Teacher in Primary Schools, one must have the qualification as provided in the notifications issued by the NCTE. It is on record that several candidates, who have obtained the diploma from Jammu and Kashmir have been selected and are being paid their salary, Annexure-3 is the chart of such students. It is also on record that one Smt. Sadhna Singh, who had obtained B.Ed. degree from Jammu and Kashmir and was denied appointment had approached this Court by following the writ petition which was dismissed, however, on an appeal being filed by her being Special Appeal No. 1323 of 2009, this Court allowed the said appeal by judgment dated 28.3.2011 holding that the degrees obtained from the institution to which recognition was not granted by NCTE can be considered for selection as the discrimination would be contrary to the mandate of Article 14 and 16 of the Constitution of India. In fact the NCTE, as recorded above, has also clarified by issuing notification clarifying that diploma or certificate in Teacher Education awarded by an institute/university in the State of Jammu and Kashmir is also valid for employment in other parts of country.
7. In view of the said clarification being issued by the NCTE, there is no occasion to deny the petitioners herein the benefit of employment only on the ground that the diploma obtained by them is from a university situated at Jammu and Kashmir.
8. In view of the above, the findings recorded above, the writ petition deserves to be allowed. Consequently, orders dated 27.11.2019 and 7.12.2019 (Annexure-7 & 8) are set aside and the mandamus is issued commanding the respondents to permit the petitioners to join on the post of Assistant Teacher in Primary School against the Assistant Teacher Recruitment Examination 2018 expeditiously preferably within a period of six weeks from the date of filing of the present order before the authority concerned.
9. The writ petition is disposed of in terms of the said order."
This Court has decided the identical writ petition bearing Service Single No.25395 of 2020, Deepa Devi Vs. State of U.P., vide judgment and order dated 18.12.2020 in terms of judgment and order dated 19.11.2020 passed in Smt. Shalu Sharma (supra).
This Court at Allahabad has also decided identical writ petition in terms of judgment passed in the case of Smt. Shalu Sharma (supra); reference of one Writ-A No.10628 of 2020, Sudhir Kumar and 16 Others Vs. State of U.P. and others, has been given thereby the benefits of Smt. Shalu Sharma (supra) has been given vide order dated 8.12.2020.
From the perusal of the pleadings, it is apparent that the same controversy is in dispute in the present writ petitions, as such both the writ petitions are allowed in terms of aforesaid judgment rendered in case of Smt. Shalu Sharma (supra), which has been followed in subsequent cases in re; Deepa Devi (supra) and Sudhir Kumar and 16 Others (supra).
No order as to costs.
Order Date :- 21.1.2021 RBS/-