Hon. Anil Kumar Agarwal, J.
1. We have heard Shri Sudamaji Shandilya, learned counsel for the petitioners. Shri Rajesh Kumar-petitioner no.1 also appeared and was permitted to argue in person. Learned Standing Counsel appears for the State respondents. Shri K. Sahi appears for the Secretary, Basic Education Board, U.P. Allahabad and District Basic Education Officer-Etawah-respondent nos.3 and 4.
2. In this intra court special appeal under Chapter 8 Rule 5 of the Rules of the Court, 1952, the petitioners-appellants are aggrieved by the judgment and order dated 11.8.2009 passed by the learned Single Judge in Writ Petition No.41099 of 2009, Rajesh Kumar & Ors. v. State of U.P. & Ors. by which the writ petition was dismissed by a short judgment on the ground that the law declared by this Court in Special Appeal No.25 of 2000, Upendra Rai v. State of U.P. & Ors. decided on 18th February, 2000, has since been overruled by Hon'ble Supreme Court of India in the case of U.P. Basic Education Board v. Upendra Rai, JT 2008 (2) SC 479.
3. Brief facts, which gave rise to the writ petition are that Shri Rajesh Kumar-petitioner no.1 passed out Buniyadi Prashikshan Praman Patra from Madhyamik Shiksha Mandal Madhya Pradesh, Bhopal in the year 1995 in Second Division; Smt. Rajani-petitioner no.3-appellant passed out the same examination in the year 1995 in Second Division and Shri Manoj Kumar Mishra-petitioner no.2-appellant no.3 (impleaded as appellant in the special appeal vide order of the Court dated 12.9.2012) passed out the same examination in the year 1995 in First Division. The examination for Buniyadi Prashikshan Praman Patra is held by the Madhyamik Shiksha Mandal Madhya Pradesh, Bhopal as teachers training certificate. The Director of Education (Basic), U.P. by his letter dated 16.3.1986 had issued a circular to all the educational authorities forwarding the list of training certificates/ diplomas obtained from different states, which were treated to be equivalent to the certificate and degrees granted by the State of U.P. This circular included at Item No.21 the Madhya Pradesh Bunayadi Prashikshan Patropathi to be equivalent to Basic Teachers Certificate (BTC).
4. In the year 1996 the District Basic Education Officer, Etawah advertised the posts of Asstt. Teachers in the schools run by the Basic Education Board inviting applications from those, who possess academic qualifications under Rule 8 (1) (ii) of the U.P. Basic Teachers Service Rules, 1981, as it existed prior to the U.P. Basic Teachers Service (8th Amendment) Rules, 1998. The unamended Rule 8 provided essential qualifications for appointment as Asstt. Teacher, Basic Schools as follows:-
"8. Academic qualifications.- (1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown against each:
Post Academic qualifications
(i) Mistress of Nursery School Certificate of Teaching (Nursery) from a recognised training institution in Uttar Pradesh or any other training qualification recognised by the Government as equivalent thereto.
(ii)Assistant Masters and Assistant Mistress of Junior Basic Schools Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or any other qualification recognised as equivalent thereto by the State Government together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training Course recognised by the Government as equivalent thereto.
Provided that the essential qualification for candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course."
5. The petitioners were not selected on the ground that they held teachers training qualifications from an institution, which was outside the State of U.P. The petitioners filed Writ Petition No.30991 of 1997 (Rajesh Kumar & Anr. v. Zila Basic Shiksha Adhikari & Anr.) and Civil Misc. Writ Petition No.39680 of 1997, Sharad Kumar Shukla & 4 others v. Zila Basic Shiksha Adhikari & Anr.). In Writ Petition No.39680 of 1997, Smt. Rajni and Shri Manoj Kmar Mishra, the petitioners in this writ petition were impleaded as petitioner nos.2 and 4. By a short judgment learned Single Judge of this Court disposed of the writ petition with directions that the petitioner's case should be considered in view of the Government Order dated 16.3.1986 in accordance with law, if any selection process is going on and applications have been made by the petitioners. The Court observed that if the selection process is already over, as claimed by the respondents, the petitioner's candidature must be considered in the next selection process. The short judgment is quoted as below:-
"Head learned counsel for the petitioner and Mr. N.K. Sharma, learned counsel for the respondent no.1.
Learned counsel for both the parties state that the facts involved in the present writ petition are identical to the facts involved in C.M. Writ Petition No.16426 of 1997. Yugul Kishor Tripathi and others Vs. Zila Basic Shiksha Adhikari Banda and another decided on 16.5.97 (Annexure-7 to the writ petition). Therefore, this writ petition is also disposed of with the direction to the respondent nos.1 and 2 that if any selection process is going on and due applications have been made by the petitioners therefore, their case may also be considered in view of the Govt. Order dated 16.3.86 in accordance with law. If the present selection process is already over as claimed by the respondents, the petitioners' candidatures must be consider in the next selection process."
6. Both the writ petitions were disposed of with similar orders. The orders were not complied with, on which a Contempt Petition No.2802 of 1998 was filed. The High Court dismissed the contempt application with following order:-
"The dispute involved in this case is covered by the judgment rendered in Civil Misc. Contempt Petition No.1900 of 2003 (Bharat Ram and others v. Sri Ramesh Singh Zila Basic Shiksha Adhikari, Basti as this case is decided in terms of the aforesaid judgment and the petitioner is dismissed."
7. The petitioner filed a Special Leave to Appeal (Civil) No.CC:2336/2004, which was withdrawn on 19.3.2004 with liberty to move the High Court by way of review.
8. The District Basic Education Officer, Etawah, in compliance with the judgment and order dated 8.12.1997 passed by learned Single Judge in Writ Petition No.39991 of 1997, Rajesh Kumar & Anr. v. Basic Shiksha Adhikari, Etawah & Anr. passed an order on 5.2.2003 informing the petitioner and the Registrar, High Court, Allahabad that the petitioner had appeared in the selection proceedings on 5.2.2003 and presented his original documents. It was found that he had obtained Bunayadi Prashikshan Praman Patra (Correspondence) from Bhopal, Madhya Pradesh, which is from outside the State. This certificate was not recognized by the Basic Shiksha Uttar Pradesh and Government of Uttar Pradesh in its order dated 11.8.1997, and consequently since the petitioner does not possess the prescribed qualifications under Rule 8 of the Basic Shiksha Rules, 1981, he was not found eligible for being appointed as Asstt. Teacher.
9. A recall application No.113455 of 2004 and other connected applications were filed by the petitioner no.1-appellant and other similarly situate persons, was rejected on the ground that the petitioners had applied for appointment in pursuance to the judgment dated 8.12.1997, whereas their applications were only required to be considered. Learned Judge observed in his order dated 24.9.2004 after considering the contention of learned counsel appearing for the petitioner that the judgment in Writ Petition No.29275 of 1997 was overruled vide judgment and order dated 18.2.2000 in Special Appeal No.25 of 2000, Upendra Rai v. State of U.P. & Ors. He observed, "Be that as it may, when the authority had taken decision in the matter the aforesaid judgment was not overruled and was in force. The decision of the authority dated 5.2.2003 was in accordance with law as it then was. There is no deliberate disobedience of the orders of the Court, as such no case for contempt is made out."
10. The petitioner-appellant no.1 filed Special Leave to Appeal (C) No.1784 of 2005, which was dismissed on 24.4.2009 with following order:-
"Heard learned counsel for the parties.
No merits.
The special leave petitions are dismissed."
11. A writ petition giving rise to this special appeal was filed on 12.8.2009 after the dismissal of the special leave petition by the Supreme Court on 24.4.2009, against the order rejecting the recall application in contempt proceedings dated 24.9.2004, and six years after the District Basic Education Officer, Etawah had rejected the petitioner's application for appointment as Asstt Teacher on the ground that he does not hold the requisite qualifications prescribed under the Rules. The explanation for delay in filing the writ petition was given in paragraph 18 as follows:-
"18. That since the petitioner was pursuing the matter in contempt proceeding, he could not be advised to challenge the impugned order dated 05.02.2003 hence after dismissal of the contempt appeal field by the petitioner before the Hon'ble Apex Court on 24.04.2009, the present writ petition is being filed, challenging the impugned order dated 05.02.2003 as such, the delay in filing the present writ petition is bonafide and is not deliberate hence the same is liable to be condoned. Therefore, it is prayed that this Hon'ble Court may kindly be pleased to condone the delay in filing the present writ petition and it may be treated as filed within time, so justice be done."
12. It is submitted by Shri Sudama Ji Shandilya that the petitioner's case is covered by the judgment of this Court in Special Appeal No.1426 of 2010, Bhagwat Narain Chaturvedi & Anr. v. State of U.P. & Ors., decided by the Division Bench on 7.9.2010 in which it was held that the appellants had claimed that they obtained certificates (Buniyadi Praman Patra Pariksha) conducted by the Government of Madhya Pradesh in the year 1994-95, which were given equivalence to the Basic Teachers Training Certificate in the State of U.P. vide Circular Letter dated 16.3.1973. By Government Order dated 11/13 August, 1997 the equivalence was withdrawn by the Secretary (Basic Education), Government of U.P. with intimation to the Director of Education informing therein that the certificates issued from an institution recognized by the National Council for Teachers Education will be admissible. The Division Bench held that the National Council for Teachers Education Act, 1993 was enforced w.e.f. 1st July, 1995, and that under the Act Council itself was constituted in December, 1997; in such a situation the question of granting recognition by the National Council for Teachers Education does not arise as in the said case the appellants had obtained the certificates in the year 1994-95. The certificates were granted prior to the enforcement of NCTE Act, 1993, and hence the reasons given by the learned Single Judge to dismiss the writ petition was not sustainable. The withdrawal of the equivalence was enforced in August, 1997, the same would therefore not apply retrospectively and prior to that certificates issued would not stand annulled automatically. The appeal was allowed and the Basic Shiksha Adhikari was required to take a decision within three months.
13. It is submitted by Shri Sudama Ji Shandilya that in pursuance to the directions issued in Bhagwat Narain Chaturvedi's case (Supra) the appellants in the said appeal were given appointments by order of the District Basic Education Officer, Lalitpur on 20.12.2011 subject to the decision of the Special Leave Petition No.7627 of 2011, State of U.P. & Ors. v. Bhagwat Narain Chaturvedi & Ors. The Special Leave to Appeal was admitted on 4.4.2012 and still pending and in the meantime the appellants in Bhagwat Narain Chatuvedi's case (Supra) are serving as Asstt. Teachers at Lalitpur in basic schools. Shri Sudama Ji Shandilya submits that the petitioners are also entitled to the same reliefs as in the case of Bhagwat Narain Chaturvedi's case (Supra).
14. Shri Sudama Ji Shandilya further submits that the petitioner had applied for appointment as Asstt. Teachers, when the equivalence was not withdrawn by the Government Order dated 11.8.1997. They were entitled to be appointed in the selections, which were pending and in any case their qualifications obtained prior to the withdrawal of the equivalence would continue to hold good for their appointments considered by the District Basic Education Officer in the year 2003. He submits that the order of the District Basic Education Officer by which the petitioners' qualifications were held not to be equivalent to Basic Teachers Training Certificate of the State of U.P. dated 5.2.2003 is liable to be set aside. Learned Single Judge committed an error in holding that the petitioner's case is covered by U.P. Basic Education Board v. Upendra Rai (Supra).
15. Shri K. Sahi on the other hand submits that the judgment by the Division Bench of this Court in Upendra Rai & Ors. v. State of U.P. & Ors., 2000 (2) UPLBEC 1340 holding that basic teachers training qualifications held by the petitioners are valid qualifications for appointment as Asstt. Teachers following Suresh Pal & Ors. v. State of Haryana & Ors., AIR 1987 SC 2027, is no longer good law in view of the judgment of the Supreme Court in Basic Education Board, U.P. v. Upendra Rai & Ors., JT 2008 (2) SC 479, in which the Supreme Court held that the qualifications relevant at the time of selection would be taken into consideration. The respondent (Upendra Rai) and others in that case were appointed after the Circular dated 11.8.1997 (by which equivalence was withdrawn), and thus the circular would apply to him. The respondents did not possess the qualifications mentioned in the said circular. They did not either possess BTC, Hindustani Teaching Certificate, JTC or certificate of teaching equivalent thereto recognised by the Government. The B.Ed. certificate was not equivalent to BTC after the issuance of the Circular dated 11.8.1997. The Supreme Court held in para 14 that this was a policy decision of the U.P. Government and it is well settled that the Court cannot interfere with the policy decisions of the Government, unless it is in violation of some statutory or constitutional provision, hence it expressed an opinion that the respondent was not entitled to be appointed as Asstt. Master of Junior Basic School in U.P.
16. The Supreme Court further held in paragraphs 15 to 19 as follows:-
"15. Grant of equivalence and /or revocation of equivalence is an administrative decision which is in the sole discretion of the concerned authority, and the Court has nothing to do with such matters. The matter of equivalence is decided by experts appointed by the government, and the Court does not have expertise in such matters. Hence it should exercise judicial restraint and not interfere in it.
16. Learned counsel for the respondent, however, submitted that the respondent has the requisite qualification in view of the National Council For Teacher Education Act, 1993 (hereinafter referred to as the NCTE Act). He has invited our attention to various provisions of the said Act. In particular he has referred to Section 2(m) of the NCTE Act which states as under:
" (m) "teacher education qualification" means a degree, diploma or certificate in teacher education awarded by a University or examining body in accordance with the provisions of this Act;"
17. Learned counsel also submitted that the NCTE Act overrides the UP Basic Education (Teachers) Service Rules 1981 in view of Article 254 of the Constitution read with Entry 25 of List III of the Seventh Schedule to the Constitution.
18. Learned counsel submitted that if a person has the qualification mentioned in section 2(m) of the NCTE Act he has the necessary qualification for being appointed as an Assistant Master or a Teacher in any educational institution in India. We regret, we cannot agree.
19. A perusal of the NCTE Act shows that this Act was made to regulate the teachers training system and the teachers training institutes in the country. It may be mentioned that there are two types of educational institutions (1) ordinary educational institutions like primary schools, high schools, intermediate colleges and universities and (2) teachers' training institutes. The NCTE Act only deals with the second category of institutions viz. teachers' training institutes. It has nothing to do with the ordinary educational institutions referred to above. Hence, the qualification for appointment as teacher in the ordinary educational institutions like the primary school, cannot be prescribed under the NCTE Act, and the essential qualifications are prescribed by the local Acts and Rules in each State. In U.P. the essential qualification for appointment as a primary school teacher in a Junior Basic School is prescribed by Rule 8 of the U.P. Basic Education (Teachers) Service Rules, 1981 which have been framed under the U.P. Basic Education Act, 1972. A person who does not have the qualification mentioned in Rule 8 of the aforesaid Rules cannot validly be appointed as an Assistant Master or Assistant Mistress in a Junior Basic School."
17. A Division Bench of this Court considered the same question as in the present case in Vinod Kumar Singh v. District Basic Education Officer & Anr., 2011 (4) ESC 2209 (All) (DB). Following the judgment in Basic Education Board, U.P. v. Upendra Rai & Ors. (Supra) this Court distinguishing the Full Bench judgment in Jitendra Kumar Soni & Ors. v. State of U.P. & Ors., 2010 (7) ADJ 403, which was applicable in the case of selection for the basic teachers training course (Special BTC) designed as bridge course and approved by the NCTE on the request of the State of U.P. Following a judgment of this court in Smt. Kiran Kumari v. State of U.P., 1997 (3) ESC 1856 (Alld), which was approved in Basic Education Board, U.P. v. Upendra Rai & Ors. (Supra) and Full Bench judgment in Rajeshwar Singh v. State of U.P., the Division Bench held that after the withdrawal of the equivalence the qualifications held by the petitioners were not equivalent to the Basic Teachers Training Certificate. They were thus not entitled for appointment as Asstt. Teachers in the basic schools.
18. Shri K. Sahi submits that the Division Bench in Vinod Kumar Singh (Supra) also considered the amendment in Rule 8 of Rules of 1981 by which 8th Amendment Rules 1998 and by which essential academic qualifications were modified as follows:-
"8. Academic qualifications.--(1) The essential qualifications of candidates for appointment to a post referred to In clause (a) of Rule 5 shall be as shown against each :
Post Academic qualifications
(i) Mistress of Nursery Schools.
Certificate of Teaching (Nursery) from recognised training Institution In Uttar Pradesh or any other training qualification recognised by the State Government as equivalent thereto.
(ii) Assistant Master and Assistant Mistress of Junior Basic Schools, A Bachelor's Degree from a University established by law in India or a Degree recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teachers certificate, Junior Teacher's Certificate of Teaching or any other training course recognised by the State Government as equivalent thereto;
Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course."
19. The Division Bench having noticed the amended essential qualifications for appointment as Asstt. Teacher in the basic schools by the 8th Amendment to the Rules of 1998 held that the rule making authority was conscious that in so far as certificates granted by other states or other certificates the equivalence, can be granted by the State Government after considering the relevant course curriculum and other aspects. A conscious decision was taken by the State in withdrawing the equivalence on 11.8.1997 after which the Rules were amended.
20. A learned Single Judge of this Court had in Smt. Kiran Kumari v. State of U.P. (Supra), which was upheld by the Supreme Court in Basic Education Board, U.p. v. Upendra Rai & Ors. (Supra) held in the year 1997 in paragraphs 6 and 10 as follows:-
"15. The circular dated 11.8.1997 thus was approved by the apex Court and the Upendra Rai who was respondent in the appeal and the writ petitioner was held not eligible for appointment on the post of Assistant Teacher of primary institution he having obtained B.Ed. Degree from District Institute of Education and Training Jabalpur. The Apex court in the aforesaid Judgment has expressly approved the earlier judgments of the Hon'ble Single Judge of this Court in Smt. Kiran Kumari v. State of U.P. vide paragraph 24 of the judgment. In Smt. Kiran Kumari v. State of U.P. 1997 (3)ESC 1856, the advertisement was issued on 17.8.1997 for the post of Assistant Teachers in district Sonbhadra. The petitioner, who had obtained certificate of Buniyadi Prashikshan Pramanpatra awarded by Madhya Pradesh Bhopal made an application in pursuance of the said advertisement. The contents in the advertisement that only those candidates shall be considered who has obtained B.T.C. Training certificate from the institution in the State of U.P., was challenged. Rule 8 as well as Circular dated 11.8.1997 was considered by Hon'ble Single Judge. The writ petition was dismissed and following was laid down in paragraphs 6 and 10.
"6. The qualification regarding Assistant Teachers and Assistant Mistress of Junior Basic Schools provides that the qualification consisting of Junior Basic Teacher's Certificate, Hindustani Teachers Certificate. Junior Teacher's Certificate of teaching or other training courses recognised by the State Government as equivalent to that. The Rule clearly contemplates that it is for the State Government to recognise other training courses for the purpose of academic qualification of the candidates. The State Government in its order dated 11th August, 1997 had taken a decision that in view of the fact that large number of candidates who have obtained B.T.C., H.T.C., J.T.C. are available in Uttar Pradesh for the vacancies to be filled up for the post of Junior Basic Schools In the institutions run by U. P. Shiksha Parishad Board, the recognition given to other training courses obtained by the candidates from outside the State of U. P.is derecognised. It was for the State Government to recognise or derecognise the certificates obtained by the candidates regarding the training course for teaching in Junior Basic Schools from other States. In case the Government finds that large number of the candidates are available who have already taken training courses provided by the institutions in the State of Uttar Pradesh, it can limit to the training courses taken by a candidate within the State of Uttar Pradesh.
10. In P. Mahendran and others v. State of Karnataka and another, AIR 1990 SC 405, it was held that the selection process is to be completed in accordance with the provisions of the Rule as it stood at its commencement and the amended Rule would not invalidate the selection already made. These cases have no application to the facts of the present case. The Government has already by its order dated llth August. 1997 clearly indicated that the certificates regarding the Basic Training Course obtained from outside the State of Uttar Pradesh shall not be recognised. In the advertisement dated 17th August. 1997, this aspect was also made clear. The petitioners cannot claim that a writ of mandamus should be issued commanding the respondents to consider the candidature of the petitioners treating their certificates relating to the Basic Education Course obtained from outside the State of Uttar Pradesh to be valid."
21. In the present case we find that the first writ petition filed by the petitioner was disposed of with directions to consider the petitioner's candidature in the next selection process, provided the present selection process is already over, as claimed by the respondents. The petitioner has not contended either in the writ petition nor has brought any material to show that the selection process, which was started in the year 1996 was not concluded or that any posts in that selection were left vacant. The petitioner applied for appointment in the selection process on 5.2.2003. The advertisement initiating this subsequent selection process has not been brought on record and thus in view of the pleadings and the orders of the District Basic Education Officer, Etawah dated 5.2.2003, it is found that the petitioner had not applied in pursuance to the previous selection process, and had applied afresh. By the time the Rules were amended by the 8th Amendment to the Rules in the year 1998, and that the Government Orders were issued on 11.8.1997 withdrawing the equivalence granted to the qualifications possessed by the petitioners from the State of Madhya Pradesh. The petitioners, therefore, cannot have any complaint nor can they contend that they should have been considered in the selection process after the amendment of the Rules of 1981, and the withdrawal of the equivalence to the Teachers Training Certificate (Buniyadi Prashikshan Praman Patra from Bhopal, M.P.) on 11.8.1997 for appointment as Asstt. Teachers in the Primary Schools in the State of U.P.
22. The judgment in Bhagwat Narain Chaturvedi's case (Supra) is under challenge in the Supreme Court in Special Leave to Appeal (Civil) No.35269 of 2011, which was admitted on 4.4.2012. In Bhagwat Narain Chaturvedi's case the judgment of the Supreme Court in Basic Education Board, U.P. v. Upendra Rai & Ors. (Supra) was not considered. The Division Bench completely overlooked the judgment of the Supreme Court in Upendra Rai's case rendered on 12.2.2008 and relied on the judgment in Suresh Pal & Ors. v. State of Haryana, AIR 1987 SC 2027. In Vinod Kumar Singh's case the Division Bench has considered all the aspects including the amendment to the Rules of 1981, and the withdrawal of equivalence.
23. In Vinod Kumar Singh's case the judgment in Bhagwat Narain Chaturvedi & Anr. v. State of U.P. was not cited nor referred. We, however, do not find any conflict in the ratio of the judgments in as much as the Supreme Court has in Basic Education Board, U.P. v. Upendra Rai & Ors., JT 2008 (2) SC 479 had considered the argument at length and had conclusively established the legal position on the issue. The judgment in Bhagwat Narain Chaturvedi & Anr. v. State of U.P. & Ors. (Supra) decided on 7.9.2010 was rendered in ignorance of the judgment of the Supreme Court in Basic Education Board v. Upendra Rai & Ors. (Supra) decided on 12.2.2008. We, therefore, do not find any good ground to refer the matter to a larger bench.
24. On the aforesaid discussion, we find that after the withdrawal of the equivalence of the qualifications including Buniyadi Prashikshan Praman Patra by Madhyamik Shiksha Mandal Madhya Pradesh, Bhopal, and the amendment of the U.P. Basic Teachers Service Rules, 1961 by the 8th Amendment Rules, 1998, the qualifications held by the petitioners were not equivalent to the Basic Teachers Training Course of the State of U.P. and hence the petitioners are not entitled for appointment. The order of the District Basic Education Officer, Etawah dated 5.2.2003 does not suffer from any error of law. The petitioners' case is covered by the judgment of this Court in Vinod Kumar Singh v. District Basic Education Officer & Ors. dated 30th November, 2010.
25. The special appeal is dismissed.
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