JUDGMENT Sudhir Agarwal, J.
1. Heard Sri Ravi Pratap, learned Counsel for the petitioners and the learned Standing Counsel, the learned Counsel appearing for the respondents.
2. The petitioners have approached this Court seeking mandamus commanding the respondents to appoint them on the post of Assistant Teacher in the Primary School treating them as qualified. They have also assailed the order dated 14.8.2000 passed by respondent No. 3 rejecting their candidature for appointment as Assistant teacher in Primary school on the ground that they did not fulfill requisite qualification as prescribed by U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "1981 Rules"). Learned Counsel for the petitioner contended that advertisement dated 8.8.1995 for appointment on the post of Assistant teacher in Primary school, was published by respondent No. 1 wherein qualification was required as under-
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3. The petitioners have obtained Certificate in Physical Education . from Shree Hanuman Vyayam Prasarak Mandal, Amravati, (Maharashtra), in the year 1994 and therefore, they claim eligible pursuant to the aforesaid advertisement and thus applied for the post of Assistant teacher. However, their candidature was not considered, therefore, filed writ petition No. 24682 of 1996 which was disposed of by this Court vide order dated 11.4.1997 with the following directions-
Learned counsel for parties have agreed that this controversy has already been decided by judgment dated 11.2.97 in Civil Misc. Writ Petition No. 4945 of 1997 by a learned Single judge of this Court and a direction has been given to the respondents to decide the claim of petitioners in that petition for appointment of Primary teachers within a period of three months from the date of production of certified copy of the order. I am in respectful agreement with the judgment of my learned brother.
This petition is also disposed of finally with the direction to respondents No. 2 to 4 to decide the representation made by the petitioners for appointment as Primary teachers within a period of one month from the date of production of a copy of the order in terms of the judgment of this Court mentioned above. No order as to costs.
Thereafter the respondents have passed the order impugned in the writ petition rejecting the candidature of the petitioners under the 1981 Rules.
4. Learned Counsel for the petitioners vehemently contended that earlier the qualification of C.P.Ed from Shree Hanuman Viyayam Prasarak Mandal (Maharashtra) was declared equivalent to BTC qualification recognized by the State Government. By order dated 28.2.1996, the aforesaid recognisation of C.P.Ed from Shree Hanuman Viyayam Prasarak Mandal (Maharashtra) was cancelled by the State Government. Since the petitioners have obtained the aforesaid qualification prior to its cancellation, it is contended that the petitioners were eligible for appointment on the post of Assistant Teacher pursuant to the advertisement dated 8.8.85. Learned Counsel for the petitioners also placed reliance on a judgment dated 11.2.1997 passed in writ petition No. 4945 of 1997- Umesh Kumar and Ors. v. Director of Education, U.P., Allahabad and Ors. wherein Hon'ble Single Judge of this Court has taken the following view-
Applying the principles and policy as referred to above, I am of the opinion that those candidates having C.P.Ed, from Amrawati, who were admitted for training till 28.2.1996 cannot be treated as not qualified till that date, the said course was enjoying excognition and said they would be protected by the principle declined in the case of Suresh Pal (Supra). Moreover the G.O. dated 28.2.1996 proposes to derecognition of C.P.Ed. Course of the State of U.P. has been stopped by the government order dated 23.3.1995 but a perusal of the government order dated 23.3.1995 makes it clear that the C.P.Ed, course in the State of U.P. had been decided to be stopped from session 1996-97. Therefore, the Government order dated 28.2.1996 derecognising the C.P.Ed course from Amarawati also is to be readwith Government Order dated 23.3.1995 and derecognition will take effect alongwith C.P.Ed. from State run institution in U.P. i.e. from session 1996-97.
Therefore, the C.P.Ed, candidates either State run institution of U.P. or from Amrawati will not be treated as disqualified for appointment until C.P.Ed. course is brought to an end in terms of the G.O. dated 23.3.1995 i.e. from Session 1996-97. The C.P.Ed. course from Amrawati should not be treated in different manner than the C.P.Ed, course of State of U.P. in view of the fact that the G.O. dated 28.2.1996 did not express such intention, but I make it clear that the policy of the Government in respect of considering the C.P.Ed. candidates after B.T.C. candidate and for appointing them as untrained teachers with an opportunity to obtain training during their employment will continue in terms of the government prevailing policy.
In view of the aforesaid finding the respondents are directed to consider and decide the claim of present petitioners for appointment as Primary Teachers within a period of three weeks from the date of production of a certified copy of this order. The writ petition is thus disposed of finally. There will be no order as to costs.
The learned Standing Counsel, however, contended that under 1981 Rules, the petitioners did not possess requisite qualification for appointment on the post of Assistant Teachers in Primary school and the C.P.Ed, qualification cannot be said to be equivalent to that of B.T.C. He further urged that the petitioners candidature was rightly rejected pursuant to the Government order dated 28.2.96 revoking recognisation of C.P.Ed.
5. Heard learned Counsel for the parties and perused the record.
6. It is not disputed that appointment of Assistant teachers in Primary schools is governed by 1981 Rules. Rule 8, prescribes qualification for the post of assistant teacher, is quoted herein -
Academic qualification :- (1) The essential qualifications of candidates for appointment to a post referred to in Clause (a) of Rule 5 shall be as shown below against each-
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(2) The essential qualification of candidates for appointment to a post referred to in Sub-clause (iii) and (iv) of Clause (h) of Rule 5 for teaching science. Mathematics, Craft or any language other than Hindi and Urdu shall be as follows:
(i) A Bachelor's degree from a University established by law in India or a degree recognized by the Government as equivalent thereto with Science, Mathematics, Craft or particular language, as the case may be, as one of the subjects, and
(ii) 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 recognized by the Government as equivalent thereto.
(3) The minimum experience of candidates for promotion to a post referred to in Clause (b) of Rule 5 shall be as shown below against each:
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(4) The essential qualification of candidates for appointment to the post referred to in Clause (a) and Sub-clause (iii) and (iv) of Clause (b) of Ride 5 for teaching Urdu language shall he as follows:
(i) A Bachelor's Degree from a University established by Law in India or a Degree recognized by the Government as equivalent thereto with Urdu as one of the subjects.
Note- A candidate who does not possess the aforesaid qualification in Urdu, shall be eligible for appointment, if he possesses a Master's Degree in Urdu.
(iii) Basic Teacher's Certificate from any of the training centres in Lucknow, Agra, Mawana in district Meerut and Sakaldiha in district Chandauli established by the Government for imparting training in Urdu or any other training qualification recognized by the Government as equivalent thereto.
Admittedly the petitioners possess training qualification of C.P.Ed, i.e. Certificate in Physical Education. A perusal of the Government order dated 24.8.78 (Annexure-3 to the writ petition) shows that the State Government declared C.P.Ed, qualification of Shree Hanuman Viyayam Prasarak Mandal, Amravati, (Maharastra) as equivalent to C.P.Ed, qualification of State of U.P. It is not the case of the petitioners that C.P.Ed. qualification was declared equivalent to B.T.C. etc as required under Rule 8 of 1981 Rules. Learned Counsel for the petitioners submits that vide Government Order dated 23.3.95 the State Government took a policy decision to allow C.P.Ed. trained persons to be appointed as teacher in Primary school on account of shortage of qualified teachers. He therefore, contended that pursuant to the State Government's decision dated 23.3.1995, the petitioners who possess C.P.Ed. qualification which was declared equivalent to C.P.Ed. of U.P. ought to have been appointed on the post of Assistant teachers in Primary school. However, in my view, the submission is wholly misconceived. The State Government's decision to declare C.P.Ed. of Shree Hanuman Viyayam Prasarak Mandal, Amravati (Maharastra) equivalent to C.P.Ed. of U.P. does not make the petitioners qualified for appointment under Rule 8 of 1981 rules. In order to claim appointment under 1981 Rules, the incumbent must possess training qualification of BTC, HTC or such training qualification as declared equivalent by the State Government. There is nothing on record to show that C.P.Ed, was ever declared a training qualification equivalent to BTC by the State Government of U.P. It is also not the case of the petitioners that C.P.Ed. qualification whether of Amravati or UP. was ever declared equivalent to BTC by the State Government. It is also fortified from the fact that in the advertisement it was provided that the candidates possessing C.P.Ed, may apply for untrained pay scale meaning thereby that the C.P.Ed. qualification is not equivalent to BTC. For appointment in the pay scale of trained teacher, BTC certificate is necessary.
7. There is another aspect of the matter. '1981 Rules' does not provide appointment of a teacher in trained or untrained pay scale. A teacher possessing requisite qualification under 1981 Rules is entitled to be appointed in the pay scale as prescribed under the said Rules. The State Government, it appears took a decision administratively to permit appointment of persons who do not possess requisite qualification under 1981 Rules in a pay scale lower than the pay scale meant for trained and qualified teacher. This leads to another issue going to the root of the matter whether it is permissible to an authority to permit appointment in relaxation of qualification prescribed under the statute. Incidentally but integrally connected question would be whether an authority by executive decision or order can make appointment or, permit appointment of a person lacking qualification prescribed under the statute.
8. No doubt in the advertisement it was published that the candidate possessing C.P.Ed. may apply for appointment in untrained pay scale but a perusal of 1981 Rules makes it clear that it does not authorize that the State Government or any other authority to appoint a person, who does not possess requisite qualification under the Rules. The obligatory nature of the qualification under the Rules is considered by the Apex Court in Mohammad Sartaj and Anr. v. State of U.P. and Ors. , where it is held that appointment of a person lacking minimum qualification under the Rules is illegal and void and does not confer any right upon him to hold such post. Referring to its earlier decision in State of Madhya Pradesh v. Shyama Pardhi , it was observed:
The rules specifically provided that qualification as condition for appointment to the post. Since the prescribed qualifications had not been satisfied, the appointment and training of that person is illegal.
9. In para 19 of the judgment the Apex Court observed as under:
Admittedly, the appellants were not qualified and they did not possess BTC or Hindustani Teacher's Certificate or Junior Teacher's Certificate or Certificate of Teaching or Certificate of any other training course recognized by the State Government as equivalent thereto at the time of their initial appointment. In view of the basic lack of qualifications, they could not have been appointed nor their appointment could have been continued. Hence the appellants did not hold any right over the post and therefore no hearing was required before the cancellation of their services.
10. It is also worthy to point out that neither 1981 Rules nor any provisions of 1972 Act empower the State Government or any other authority to relax the condition of recruitment under 1981 Rules or to appoint a person who does not possess prescribed qualification under the Rules. In the absence of such power any decision taken by the State Government to make appointment of a person who does not possess qualification prescribed under the Rules cannot be given effect to and a writ of mandamus cannot be issued to the State Government to implement such decision. It is settled law that the provision of statutory rule cannot be superseded by executive orders. It was open to the Government to make amendment in the rules for appointment of a person who does not possess qualification prescribed under rules but so long the rule is not amended it would not be permissible to appoint persons who do not possess statutory qualification as prescribed for Primary teacher. This Court will not issue a mandamus directing the State to do an act which is in the teeth of a statute. A mandamus lies only when there is a statutory obligation upon the authority to do some thing and the petitioners have a legal right to compel performance of such act on the part of the authority. However, no person has a legal right to seek a mandamus directing an authority to perform an act which is inconsistent and contrary to a statutory provision. So far as the judgment of this Court in Upendra Rai v. State of U.P. and Ors.2000 (2) UPLBEC 1340 is concerned this Court did not consider this aspect of the matter and has only issued direction that in case C.P.Ed, qualified persons are sought to be appointed the persons having obtained C.P.Ed. qualification prior to issuance of Government order dated 28.2.96 derecognizing C.P.Ed. from Amrawati would also be considered to be qualified and they can not be discriminated for that purpose. The persons who possess C.P.Ed. qualification can not be appointed on the post of Assistant teacher in the Primary schools as per the provisions contained in 1981 Rules at the relevant time. In the absence of the possessing academic qualification under Rule 8 of 1981 Rules, the petitioners cannot lend any advantage from the aforesaid judgment.
11. At this stage learned Counsel for the petitioners contended that the respondents themselves advertised that the persons possessing C.P.Ed. may apply for appointment in untrained pay scale in Primary school and therefore, it is not permissible to the respondents to deny right of consideration for appointment to the petitioners since they are estopped from taking a stand different than what has been advertised by them. In my view the submission is wholly unsustainable in law for the reason that if an advertisement contain a condition which is inconsistent with statutory provision, neither the authority can proceed in accordance with the advertisement nor any person can claim benefit on the basis of advertisement since statutory provision override the condition published in the advertisement.
12. In the case in hand 1981 Rules as they stood does not permit a person having C.P.Ed. qualification to be appointed as Assistant teacher in Primary school and in these circumstances mere publication in the advertisement regarding appointment of C.P.Ed. candidates in untrained scale cannot confer any benefit upon the petitioners. The Apex Court recently in Malik Mazhar Sultan and Ors. v. U.P. Public Service Commission and Ors. , has observed as under:
The recruitment to the service can only be made in accordance with the rules and the error, if any, in the advertisement cannot override the rules and create a right in favour of a candidate if otherwise not eligible according to the rules. The relaxation of age can be granted only if permissible under the rules and not on the basis of the advertisement. If the interpretation of the rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof.
13. Therefore the conditions mentioned in the advertisement would not make any difference so far as the legal position is concerned. Irrespective of the conditions in advertisement, I have no hesitation in holding that appointment under 1981 Rules can be made only if a person possess qualification as prescribed therein. Only on the basis of the advertisement when rules do not permit, the petitioners cannot be held qualified for appointment on the post of Primary teacher and the order rejecting their candidature, therefore, cannot be faulted.
14. In this view of the matter I find no illegality in the impugned order and this petition has no force. The writ petition is accordingly rejected.