Court No. - 39
Case :- SPECIAL APPEAL No. - 482 of 2004 Appellant :- Sudhir Kumar & Others Respondent :- Director Of Education & Others Counsel for Appellant :- P.N. Ojha,Ashok Khare Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh,Birendra Singh,D.P.S. Chauhan,K. Shahi,P.K. Sharma,Vikram Bahadur Singh
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
This Appeal has been filed under Chapter-VIII Rule 5 of the Rules of the High Court, 1952 seeks the quashing of the judgment and order dated 23 March 2004 by which the writ petition filed by the appellants and 16 others came to be dismissed.
The writ petition had been filed with prayers that the respondents should permit the petitioners to function as Assistant Masters in Junior Basic Schools run by the Board of Basic Education in district Etawah pursuant to the recommendations made by the Selection Committee on 30 January 1997 and to quash the objections raised by the Basic Siksha Adhikari, Etawah in regard to their selection contained in the communication dated 31 January 1997.
It transpires from the records that an advertisement was issued in the News Paper Danik Jagran on 24 July 1995 inviting applications for appointment of Assistant Masters in Junior Basic Schools. A corrigendum was issued on 9 October 1995 which was also published in the News Paper on 9 October 1995. The petitioners, who claim to possess a Certificate of Physical Education1 from Sri Hanuman Vyayam Prasarak Mandal Amrawati, Maharashtra, submitted application for being considered for appointment. The appointment of Assistant Masters in Junior Basic Schools is governed by the provisions of the Uttar Pradesh Basic Education (Teachers) Service Rules, 19812.
Initially 559 persons were appointed as Assistant Masters in the Junior High Schools run by the Board of Basic Education in district Etawah. Out of these, 105 Assistant Masters were appointed in November 1995 and the remaining 454 were appointed on 10 February 1996. The petitioners' claim to have appointed on the basis of appointment letters dated 10 February 1996. Subsequently, by order dated 31 August 1996, the appointments of these 454 teachers appointed on 10 February 1996 were cancelled. This cancellation was assailed in a writ petition which was disposed of on 8 November 1996 and the judgement is reported in [(1997) 1 UPLBEC 7]3. The operative part of the judgment is reproduced below :-
“Hence I dispose of this petition finally with the direction to the Director Education (Basic), U.P. to supply a copy of the report of the enquiry committee to the petitioners and give them opportunity of hearing. Since there are 454 candidates in the second list, it will not be reasonably possible to supply copy of this report to each one of them and give each one of them a separate hearing. Hence I direct that a copy of the said report may be handed over by the learned counsel for the respondent No. 1 Sri S. G. Hasnain, to the learned counsel for the
1 the CPEd. Certificate
2 the 1981 Rules
3 Brijesh Kumar Yadav & Others v. Secretary, Basic Shiksha Parishad, U.P. Allahabad & Others, decided on 8 November 1996 petitioners Sri R.N. Singh within two weeks of the date of this judgment i.e., by 22-11-1996. The petitioners of this petition as well as of the other connected petitions may thereafter prepare a single comprehensive representation containing all the factual and legal averments which they may wish to make and this representation should be submitted to the Director by 16-12-1996. The Director need not give personal/oral hearing to the petitioners but he shall decided the representation by a speaking order after dealing with the submissions made in the said representation by 31-1-1997. I once again make it clear that I am not staying the impugned orders at this stage but am only directing for a post decisional hearing by the Director. With these observations this petition and all the connected writ petitions whether they are listed today or not finally disposed of.”
Thereafter, the Director of Education (Basic) passed an order dated 4 December 1996 directing for examination of the matter by a Selection Committee contemplated under the 1981 Rules and for taking steps for appointment of Assistant Masters in accordance with the Rules. A Selection Committee was constituted and appointment orders were issued in favour of 403 persons out of the 454 Assistant Masters who had earlier been selected. Appointment orders were not issued in favour of 51 persons as they possessed CPEd. Certificate, even though the Selection Committee in its meeting held on 30 January 1997 had recommended the name of these persons also for appointment.
It is for this reason that 46 out of these 51 persons filed Writ Petition No. 8223 of 1997 for the reliefs referred to above. This petition was dismissed. The learned Judge observed that the petitioners do not possess the requisite training qualification as contemplated under the 1981 Rules for appointment as Assistant Masters.
Sri Ashok Khare, learned Senior Counsel appearing for the appellants has made following submissions :-
1. The appellants were eligible to be appointed as Assistant Masters in the Junior Basic Schools and the view to the contrary taken by the learned Judge is not correct;
2. The communication dated 23 March 1995 sent by the Joint Secretary in the State Government to the Director of Education (Basic) in connection with the CPEd. Certificate conveys the decision taken by the Government to treat the CPEd. Certificate awarded by the State run Institutions / State recognized Institutions for the purpose of appointment as Assistant Masters by treating them as untrained teachers and for payment of regular salary only after completion of the training;
3. When the State Government had taken a decision to treat the CPEd. Certificate awarded by State run Institutions / State recognized Institutions, then there is no justification to ignore the CPEd. Certificate granted by such Institutions situated outside the State of Uttar Pradesh and, if that be the position, the appellants cannot be considered ineligible under the 1981 Rules. In support of his contention, learned Senior Counsel has placed reliance upon a Full Bench decision of this Court reported in [2010 (83) ALR 155]4 ; and
4. Jitendra Kumar Soni and Others v. State of U.P. through Secretary Department of Basic Education, Government of U.P., Lucknow, decided on 13 August 2010 4. In support of this contention, reliance has also been placed upon the recommendations made by the Selection Committee in its meeting held on 31 January 1997 in which the appellants were considered eligible as also the averments made in the short counter affidavit filed by the Board in which it has been categorically stated that 8 persons who had been appointed as Assistant Masters possessed CPEd. Certificate awarded by State run Institutions.
Sri Vikram Bahadur Singh, learned counsel appearing for the Board has, however, submitted that the learned Judge committed no illegality in rejecting the claim of the petitioners since they do not possess the requisite training qualification contemplated under Rule 8 of the 1981 Rules.
Learned Standing Counsel appearing for the respondents has also submitted that the appellants were not considered eligible for the post of Assistant Masters under the 1981 Rules as they did not possess the requisite training qualification.
We have considered the submissions advanced by the learned counsel for the parties.
It is not in dispute that appointment of Assistant Masters in the Junior Basic Schools is governed by the provisions of the 1981 Rules and Rule 8 which deals with the academic qualification, as was prevailing at the relevant time, is reproduced below :-
A perusal of the aforesaid Rule 8(1) indicates that the academic qualification for appointment on the post of Assistant Masters is Intermediate Education of the Board of High School and Intermediate Education together with the training qualification consisting of a Basic Teachers Certificate, Hindustani Teachers Certificate, Junior Teachers Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto.
The issue that arises for consideration in the appeal is as to whether the appellant possessed the requisite academic qualification. It, however, needs to be noted that there is no dispute that the appellants possessed the Intermediate Examination of the Board of High Schools and Intermediate. What is in dispute is whether the appellants possessed the training qualification contemplated under Rule 8(1).
It is not the submission of the learned Senior Counsel appearing for the appellants that the CPEd. Certificate can be considered as equivalent to the training qualification contemplated under Rule 8(1). What is sought to be contended is that when a decision had been taken by the Government to treat the CPEd. Certificate awarded by the State run Institutions / State recognized institutions for being appointed as untrained teachers, then there is no reason why such a certificate awarded by Institutions situated out side the Uttar Pradesh, should be ignored. It should, however, not be forgotten that even the State Government did not treat the CPEd. Certificate awarded by the State run Institutions / State recognized Institutions as equivalent to a training qualification contemplated under Rule 8(1) of the 1981 Rules, because even the Government Order dated 23 March 1995 provided that appellants who have obtained the CPEd. Certificate from State run Institutions / State recognized Institutions can be appointed as untrained Assistant Masters on a fixed salary and that they would be paid the regular salary of Assistant Masters only after they complete the training. It also needs to be noted that even the advertisement that was issued for appointment of Assistant Masters did not provide for any relaxation in the training qualification and in fact referred to the training qualification contemplated under the 1981 Rules.
Though, 51 persons who have now not been found eligible were initially appointed on 10 February 1996 when the appointment orders were issued in favour of 450 persons but these appointments were canceled within six months on 31 August 1996 pursuant to the directions issued by the High Court in Brijesh Kumar Yadav. The Selection Committee considered the matter afresh and made recommendations on 10 January 1997 for these 51 candidates also even though they possessed the CPEd. Certificate from Amrawati, Maharashtra, but doubts were raised by the District Basic Education Officer in his communication dated 31 January 1997 sent to the Basic Siksha Parishad. There is nothing on the record to indicate that any clarification / suggestions was given by the Secretary Basic Education Officer.
It is, therefore, clear from what has been stated above, that the appellants did not possess the requisite training qualification contemplated under Rule 8(1) of the 1981 Rules. They possessed the CPEd. Certificate from an Institution in Maharashtra and even if it is taken, in view of the decision of the Full Bench of this Court in Jitendera Kumar Soni, that the State Government should have considered the certificate awarded by institutions out side the State of Uttar Pradesh, then too petitioners cannot claim to possess the requisite training qualification under the Rules. The State Government could not have issued any direction for appointment of such persons possessing CPEd. Certificates as untrained teachers with liberty to them to complete the training. This would have the effect of not only relaxing the academic qualifications contained in Rule 8(1) of the 1981 Rules, but also would be contrary to the advertisement that was issued. Once the Rule prescribes the qualification, the appointments can only be made in accordance with the training qualification prescribed under the Rules and the conditions contained in the advertisement and no deviation can be made subsequently, de hors the Rules.
It is correct that 8 candidates who possessed the CPEd. Certificate from the State run Institutions / State recognized Institutions had also been selected, as has been stated in the counter affidavit filed by the Board, but this will not confer any right on the appellants to contend that the same mistake should be committed.
The Supreme Court has also emphasized that no appointment can be made in contravention of the Rules. The petitioners may have been initially appointed in February 1996 and may have been continuing upto 31 August 1996, but this alone will not be a ground to grant any relief to the appellants.
Thus, for the all the reasons stated above, we do not consider it appropriate to interfere with the Judgment under Appeal.
The Special Appeal is, accordingly, dismissed.
Order Date :- 29.3.2018 Akram (Dilip Gupta,J.) (Jayant Banerji,J.)