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RENU SHARMA versus STATE OF U.P. THRU' SECY. BASIC EDU. ?& OTHERS

High Court of Judicature at Allahabad

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Renu Sharma v. State Of U.P. Thru' Secy. Basic Edu. ?& Others - WRIT - A No. 33987 of 2007 [2007] RD-AH 14461 (24 August 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.39.

Civil Misc. Writ Petition No.  33987  of  2007.

Renu Sharma ...........Petitioner

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  35301  of  2007.

Gyanendra Kumar Sharma & others ...........Petitioners

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  35738  of  2007.

Vijay Kumar ...........Petitioner

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  36265  of  2007.

Santosh Kumar Dubey & others ...........Petitioners

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  36272  of  2007.

Ashwani Kumar Tiwari and others ...........Petitioners

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  36348  of  2007.

Mangey Singh ...........Petitioner

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  36349  of  2007.

Mahesh Kumar ...........Petitioner

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  35042  of  2007.

Dharmendra Kumar Mishra ...........Petitioner

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  36804  of  2007.

Rajendra Kumar and others ...........Petitioners

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  36678  of  2007.

Meena Singh ...........Petitioner

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  36762  of  2007.

Smt. Sanju Gupta ...........Petitioner

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  38768  of  2007.

Abishek  Rai and others ...........Petitioners

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  38504  of  2007.

Smt. Vijya Khare ...........Petitioner

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  38685  of  2007.

Anoorodh Misra and others ...........Petitioners

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  38687  of  2007.

Rajeev Kumar Mishra ...........Petitioner

Versus

State of U.P. & others ...........Respondents.

With

Civil Misc. Writ Petition No.  3900 of  2007.

Urmila & another ...........Petitioners

Versus

State of U.P. & others ...........Respondents

:::::::::::

Hon'ble Ashok Bhushan, J.

All these writ petitions, raising common questions of law and facts, have been heard together and are being disposed of by this common judgment.

Heard Sri Arun Kumar Singh, Advocate appearing for the petitioner in writ petition of renu Sharma, Sri Ashok Khare, Senior Advocate, appearing in the writ petition of Gyanendra Kumar Sharma, Sri Shesh Kumar Srivastava, Sri Abhishek Srivastava and various other counsel appearing in different writ petitions for the petitioners. Sri Ajit Kumar Singh, who has appeared on behalf of U.P. Rajarshi Tandon Open University, Allahabad, respondent No.4, has been heard in Writ Petition No.35301 of 2007 and Sri K.S. Kushwaha, learned Standing Counsel has been heard for the State-respondents.

For deciding this bunch of the writ petitions, it is sufficient to note the facts in first two writ petitions, i.e., writ petition of Renu Sharma and the writ petition of Gyanendra Kumar Sharma. Other writ petitions are based more or less on same facts. Affidavit on behalf of respondents No.1 and 2 has also been filed by learned Standing Counsel bringing on record letters written by the State Government to the National Council for Teachers Education (hereinafter referred to as N.C.T.E., the permission granted by N.C.T.E. and certain other materials.

By the writ petition filed by Renu Sharma a writ of mandamus has been sought directing the respondents to consider the B.Ed. course of Indira Gandhi National Open University, Delhi as regular course and Indira Gandhi National Open University, B.Ed. degree holder should be considered eligible for applying for special B.T.C. Training-2007.

The petitioner, Renu Sharma, claims to have passed B.A. from M.J.P. Roohelkhand University, Bareilly in the year 1999 and obtained B.Ed. degree from Indira Gandhi National Open University, Delhi. The petitioner claims in the writ petition that she is eligible to apply for Special Basic Training Course, 2007 and the respondents be directed to treat the degree of B.Ed. obtained from the Open University as eligible for applying for Special Basic Training Course, 2007.

The second writ petition has been filed by Gyanendra Kumar Sharma and 133 other petitioners praying for a writ of mandamus commanding the respondents to treat the Bachelor of Education degree awarded to the petitioners by U.P. Rajarshi Tandon Open University, Allahabad as a degree fulfilling all stipulated conditions under Government order dated 10th July, 2007 and to accord consideration to the petitioners for admission to Special B.T.C. Training Course, 2007 without raising any objections against their candidature. Alternatively prayer for quashing the Government order dated 10th July, 2007 as also the consequential advertisement in so far as it uses the word "Sansthagat" has been made.

Facts giving rise to these writ petitions, briefly noted, are; the U.P. Basic Shiksha Parishad, Allahabad is a Board constituted under the U.P. Basic Education Act, 1972 to organise, co-ordinate and control the imparting of basic education and teachers' training therefor in the State and to raise its standards and to correlate it with the system of education as a whole in the State. The U.P. Basic Education Board runs large number of junior basic schools and the senior basic schools in the State of U.P. The recruitment of the teachers of the said institutions is governed by a set of Rules, namely, U.P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as the 1981 Rules). The 1981 Rules provides for qualification for appointment of teachers of nursery schools, junior basic schools and senior basic schools. Possessing the training qualification is one of the essential qualification for appointment of Assistant Teachers in the basic schools. Large number of posts of teachers are unfilled due to non availability of teachers possessing basic teachers training qualification.

The Parliament has enacted the National Council for Teachers Education Act, 1993 (hereinafter referred to as the 1993 Act) providing for establishment of a National Council for Teacher Education with a view to achieve planned and co-ordinated development of the teacher education system throughout the country and for regulating the proper maintenance of norms and standards in the teacher education system and for matters connected there with. After the enforcement of the 1993 Act no course or training in teacher education can be conducted without seeking permission as envisaged in the 1993 Act. The State of U.P. vide its letter dated 22nd June, 2006 made a request for granting permission to impart Special Basic Training Course, 2007 to 50,000.00 B.Ed./L.T. and graduate B.P.Ed., C.P.Ed. and D.P.Ed. to fill up the vacancies. The letter of the State Government noted that more than 75,000.00 posts of Assistant Teacher in the institution run by the Basic Shiksha Parishad are laying vacant. The letter further stated that only those candidates having B.Ed./L.Td./B.P.Ed./C.P.Ed. and D.P.Ed. be permitted who have obtained training as a regular student (Sansthagat Chhatra). The State Government issued another letter dated 8th May, 2007 praying for grant of permission for running Special Basic Training Course, 2007 on the terms and conditions as earlier prayed by the State Government.  The Northern Regional Committee of N.C.T.E. vide its order dated 27th June, 2007 granted permission for training of 60,000.00  candidates for primary teachers who are already B.Ed. After receiving the said permission from N.C.T.E., the State Government issued Government order dated 10th July, 2007 inviting applications for imparting Special Basic Training Course to 60,000.00 candidates possessing B.Ed. Clause 3(2) of the Government order provides that for selection in Special Basic Training Course, 2007 the minimum qualification shall be graduate with B.Ed. degree from recognised colleges, postgraduate colleges run by the State Government/Central Government/Training Institutions having recognition from N.C.T.E. as regular students (Sansthagat).

The Government order dated 10th July, 2007 since confine the eligibility to only those B.Ed. candidates, who have passed the B.Ed. as regular students (Sansthagat), the petitioners have come up in these writ petitions claiming a direction to declare them eligible for Special Basic Training Course, 2007. The petitioners have passed their B.Ed. from Open University, namely, Indira Gandhi  National Open University, Delhi and U.P. Rajarishi Tandon Open University, Allahabad.

The counsel for the petitioners in support of the writ petitions made following submissions:-

1.The petitioners degree of B.Ed. is also a degree obtained as a regular students (Sansthagat Chhatra), they having obtained the degree from an University after following the course of B.Ed. The Open Universities as mentioned above, i.e., Indira Gandhi National Open University and Rajarishi Tandon Open University are recognised by the N.C.T.E. and are fully competent to grant degree of B.Ed. and the students who have obtained the degree from the aforesaid Universities are also the regular students and, thus, they fulfil the eligibility as required under the Government order dated 10th July, 2007.

2.The Government order dated 10th July, 2007 confining the eligibility to regular students (Sansthagat Chhatra) is illegal, void and inoperative due to following reasons:-

(a) The N.C.T.E. gave permission to the State Government vide its order dated 27th June, 2007 for imparting Special Basic Training Course to the B.Ed. degree holders and the petitioners being B.Ed. degree holders cannot be excluded by the State Government. The exclusion by the State Government of the petitioners, i.e., those who have obtained B.Ed. degree from distance mode, is contrary to the provisions of the 1993 Act and the regulations framed thereunder.

(b) The Government order dated 10th July, 2007 impinge in the field occupied by Central legislation, i.e., the 1993 Act, hence invalid and inoperative being repugnant to the 1993 Act in view of the provisions of Article 254 of the Constitution of India.

(c) There is no reasonable classification made in the Government order dated 10th July, 2007 by excluding candidates having B.Ed. degree from the Open Universities and the classification made by the State Government is violative of Articles 14 and 16 of the Constitution of India.

(d) The Government order dated 10th July, 2007 provides an institutional preference, which is impermissible under the law.

(e) The letter of the State Government dated 22nd June, 2006 seeking permission under the 1993 Act confined regular students only for candidates having C.P.Ed./B.P.Ed./D.P.Ed. etc. and no such restrictions was envisaged with regard to candidates having B.Ed. Thus the reference of the State Government and its approval cannot entitle the State Government to put a condition of "Sansthagat" with regard to B.Ed. also.

Learned counsel for the petitioners have also placed reliance on several judgments of this Court and the Apex Court, which shall be referred to while considering the submissions in detail.

The learned standing counsel appearing for the respondents, refuting the submissions of counsel for the petitioners, justified the Government order dated 10th July, 2007. Learned sanding counsel submitted that in the year 2004 the permission for imparting Special Basic Training Course for B.Ed./L.T./C.P.Ed./B.P.Ed./D.P.Ed. was also obtained from the N.C.T.E. for regular students (Sansthagat Chhatra) and the earlier Government orders dated 14th January, 2004 and 20th November, 2004 also provided the similar conditions. He submits that the State Government vide its letter dated 22nd June, 2006 made a request to the N.C.T.E. for granting similar permission for running Special Basic Training Course, 2007 by selecting from regular students having passed B.Ed./L.T./C../Ed./B.P.Ed./D.P.Ed. etc. He submits that in the reference order dated 22nd June, 2006 this was specially mentioned in Paragraph 2.Aa  and the N.C.T.E. having granted permission as proposed by the State, the permission has to be treated in the above manner and the Government order dated 10th July, 2007 is fully in conformity with the permission granted by the N.C.T.E. It is further contended that requirement of "Sansthagat" does not militate against any provisions of the 1993 Act or the regulations framed thereunder and it is always open to the State Government to provide higher qualifications to those provided by the N.C.T.E. Learned standing counsel contended that there is no error in the classification made in the Government order dated 10th July, 2007 since the two modes of imparting B.Ed. degree, i.e., by a regular manner (face to face) and by distance mode are also recognised by the N.C.T.E., which is clear from its regulations. The two modes of education are different and the said difference is also maintained by the N.C.T.E. Thus there is no infirmity in the classification. Learned standing counsel further submits that qualification equivalence of degrees are in the domain of the N.C.T.E. and it is not for this Court to declare that the B.Ed. by distance mode and B.Ed. by face to face mode are equivalent.

Learned standing counsel also relied on various judgments of this Court and the Apex Court, which shall be referred to and considered while considering the submissions in detail.

Sri Ajit Kumar Singh, learned counsel appearing for U.P. Rajarishi Tandon Open University, Allahabad also supported the case of the petitioners and submitted that the U.P. Rajarishi Tandon Open University, Allahabad is fully competent to issue degree of B.Ed., which is equivalent to the dgree of B.Ed. by any other Training Institute or recognised institution and no difference can be made between the two degrees of B.Ed.

I have considered the submissions raised by learned counsel for the parties and perused the record.

The first submission of learned counsel for the petitioner is that the degree granted by the Open University by distance mode is also a degree as a regular student since the petitioners have obtained the degree by following the course as prescribed by N.C.T.E. Under the distance mode also the petitioners are imparted practical training. They have to attend Study Centres, which have been recognised by the University. The petitioners have also to teach the students in the institutions for certain period and there is no difference in the course prescribed by distance mode than the regular course.

Section 12 of the N.C.T.E. Act, 1993 provides for functions of the Council. Sections 12 of the N.C.T.E. Act, 1993 is extracted below:-

"12. FUNCTIONS OF THE COUNCIL

It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may -

(a) undertake surveys and studies relating to various aspects of teacher education and publish the result thereof;

(b) make recommendations to the Central and State Government, Universities, University Grants Commission and recognised institutions in the matter of preparation of suitable plans and programmes in the field of teacher education;

(c) co-ordinate and monitor teacher education and its development in the country;

(d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions;

(e) lay down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum;

(f) lay down guidelines for compliance by recognised institutions, for starting new courses or training, and for providing physical and instructional facilities, staffing pattern and staff qualification;

(g) lay down standards in respect of examinations leading to teacher education qualifications, criteria for admission to such examinations and schemes of courses or training;

(h) lay down guidelines regarding tuition fees and other fees chargeable by recognised institutions;

(i) promote and conduct innovation and research in various areas of teacher education and disseminate the results thereof;

(j) examine and review periodically the implementation of the norms, guidelines and standards laid down by the Council, and to suitably advise the recognised institution;

(k) evolve suitable performance appraisal system, norms and mechanism for enforcing accountability on recognised institutions;

(l) formulate schemes for various levels of teacher education and identify recognised institutions and set up new institutions for teacher development programmes;

(m) take all necessary steps to prevent commercialisation of teacher education; and

(n) perform such other functions as may be entrusted to it by the Central Government.

Section 32 of the 1993 Act empowers the Council to make regulations to carry out the provisions of the Act. Section 32(2) sub clause (d), which is relevant for the present case, it quoted below:-

"32(2)(d). the norms, guidelines and standards in respect of -

(i) the minimum qualifications for a person to be employed as a teacher under clause (d) of section 12;

(ii) the specified category of courses or training in teacher education under clause (e) of section 12;

(iii) starting of new courses or training in recognised institutions under clause (f) of section 12;

(iv) standards in respect of examinations leading to teacher education qualifications referred to in clause (g) of section 12;

(v) the tuition fees and other fees chargeable by institutions under clause (h) of section 12;

(vi) the schemes for various levels of teacher education, and identification of institutions for offering teacher development programmes under clause (l) of section 12;

In exercise of powers under Section 32 of the 1993 Act, the Council has framed the regulations, namely, the National Council for Teachers Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002. The Regulation 8 of the 2002 Regulations dated 13th November, 2002 provided for norms and standard for various teachers education programme. The aforesaid 2002 Regulations have been amended by amendment dated 27th December, 2005, however, the provisions of Regulation 8(1) of the 2002 Regulations together with details in the relevant appendixes, were directed to be remain in force as part of the 2005 Regulations. It is relevant to note that Appendix 7 of the Regulation 2002 was with regard to norms and standard for secondary teachers education programme (B.Ed.) and Appendix 13 was with regard to norms and standard for B.Ed. open and distance learning system. Subsequently the said appendixes have been further amended by regulations. The Appendix 13, which provided for education by distance mode has also been subsequently amended and the relevant differences between the aforesaid two courses as apparent are to the following effect:-

Regular B.Ed. Course

B.Ed. through Correspondence course, modular course, Open and distance learning system etc.

Pre-Service Course

In-service Course

Full time Training course

Only severing teachers are eligible for admission in the said course

Duration: 200 days in a year, 6 days in a week and 6 hours in a day.

Duration: 300 hours in two years.

Face to Face training course

Through print, non-print, (multi media, audio-video, electronics) and self-learning materials.

Minimum 50% marks in Bachelor degree are required for admission.

No cut of marks has been fixed.

Admission required as per policy decision of the State Government

Norms for admission is required to be fixed by the Open University.

One of the most important and striking difference between two courses are that the B.Ed. by distance mode is open only for in-service teachers having at least two years experience. In writ petition of Gyanendra Sharma the prospectus of Rajarshi Tandon Open University, Allahabad has been filed as Annexure-12 and while dealing with B.Ed. programme of the University at Pages 270 and 271 of the paper book object of the B.Ed. programme has been highlighted. The object as noticed at page 270 is to develop the capabilities of in-service teachers, which is necessary for effective teaching at secondary level. It further notes that the B.Ed. programme of the University provides opportunity for professional development.

The regular students (Sansthagat Chhatra) as required by the Government order dated 10th July, 2007 are those students who have obtained their B.Ed. degree from recognised institutes and University recognised by N.C.T.E. by taking a regular course. The course, contents and duration including the practical teaching in regular is different as noticed above. Learned counsel for the petitioners has submitted that the Open Universities are also institutions and the petitioners should also be accepted as institutional candidates. The State Government has treated the institutional candidates to only those candidates who have passed B.Ed. in regular mode, which is in face to face mode as apparent from the requirement provided by the State Government even for 2004 Special Basic Training Course. Thus the submissions of the petitioners' counsel that petitioners shall also be treated as candidates having passed B.Ed. from regular institutions cannot be accepted.

Now comes the second submission raised by counsel for the petitioners, which has been elaborated on various grounds challenging the validity of the Government order dated 10th July, 2007. First of all the submissions of the petitioners' counsel with regard to Government order of the State being void and inoperative by virtue of Article 254 of the Constitution needs to be considered.

Article 246 of the Constitution of India provides for distribution of legislative powers. The Parliament has exclusive power including power to make laws in respect of any of the matters enumerated in List-I. The power of the legislature of any State to make laws with respect to any of the matter enumerated in List-III is subject to Clause-1 of Article 246. Article 246 of the Constitution is extracted below:-

"246. Sub-matter of laws made by Parliament and by the Legislatures of States.-(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").

(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").

(4) Parliament has power to make laws with respect of any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List."

Article 254 of the Constitution deals with inconsistency between laws made by Parliament and laws made by the Legislatures of State. The 1993 Act is a legislation referable to Entry-66 of List-I of Seventh Schedule of the Constitution. The education, prior to 1976 amendment was in List-II, Entry-11, after the amendment it is included in Entry 25 of List-III. Entry-66 of List-I and Entry 25 of List-III of Seventh Schedule of the Constitution are as follows:-

"66. Co-ordination and determination of standards in institution for higher education or research and scientific and technical institutions"

[25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.]"

The power of the State Legislature of legislation is subject to the power of Parliament under List-I. Thus any legislation or any exercise of executive power in that field has to be subservient to power of Parliament under List-I. The 1993 Act being an Act referable to Entry 66 any State legislation or exercise of any power in the said field has to give way to the Parliamentary legislation and any provision in the State legislation or any executive exercise shall be void to the extent it contravene any provision of the 1993 Act or the regulations framed thereunder. The field of coordination and determination of standards in institutions for higher education being a field covered by Entry-66, the State cannot contravene any Parliamentary legislation referable to Entry 66, List-I. A recent Constitution Bench judgment in (2006)9 S.C.C. 1; State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others considering the provisions of the same 1993 Act with regard to the power of the State has laid down following in paragraph 62:-

"From the above decisions, in our judgment, the law appears to be very well settled. So far as coordination and determination of standards in institutions for higher education or research, scientific and technical institutions are concerned, the subject is exclusively covered by Entry 66 of List I of Schedule VII to the Constitution and the State has no power to encroach upon the legislative power of Parliament. It is only when the subject is covered by Entry 25 of List III of Schedule VII to the Constitution that there is a concurrent power of Parliament as well as the State Legislatures and appropriate Act can be made by the State Legislature subject to limitation and restrictions under the Constitution."

Thus there cannot be any dispute to the proposition that State has no jurisdiction to legislate or to take even a policy decision or executive action, which may contravene any provisions of the 1993 Act.

A look of the relevant regulations framed under the 1993 Act is necessary for determining the area, which is occupied by the 1993 Act and the Regulations and the action of the State has to be judged accordingly. In the present case, we are concerned with Basic Training Course. The Basic Training Course is a teacher education programme recognised  by the N.C.T.E. It is relevant to note the regulations framed under the 1993 Act. Regulation 8(1) read with Appendix 5 provided for norms and standards for elementary teacher education programme. It is relevant to note the Clauses 1, 2 and 3 of the Appendix 5, which are to the following effect:-

"Preamble

          The elementary teacher education programme is meant for preparing teachers for elementary schools (primary and upper primary/middle).

2.  Duration and Intake

     a)   The elementary teacher education programme shall be of a duration of two academic years.

      b)   For effective curriculum transaction and for ensuring optimum utilisation of physical and instructional infrastructure and expertise of the teaching staff, there shall be be a unit of 50 students for intake each year.

3.  Eligibility

a)   Candidates with at least 45% marks in the senior secondary examination (+2), or its equivalent, are eligible for admission.

b)   Admission should be made either on the basis of marks obtained in the qualifying examination or in the entrance examination conducted by the State Government, as per the policy of the State Government.

c)    There shall be reservation of seats for SC/ST/OBC, Handicapped, Women, etc. as per the rules of the concerned State Government."

The said Regulations 2002 Appendix 5 has been subsequently amended by notification dated 30th November, 2006 by which Appendix 5 has been substituted by Appendix 2. Paragraphs 1, 2 and 3 of the Appendix 2 (as amended) are relevant and are quoted as below:-

1.0 Preamble

1.1.1 Free and compulsory elementary education (6-14 years) is the fundamental right of every child in our country. The aim of elementary education is to fulfil the basic learning needs of all children in an inclusive school environment bridging social and gender gaps with the active participation of the community.

1.1.2. The objectives of elementary education are to enable the child to develop skills of literacy, numeracy, communication and problem solving and acquire knowledge and understanding of the physical and social world around and attitudes and skills related to enhancing productivity and quality of life.

1.1.3. The elementary stage of education marks the beginning of formal introduction of the child to the 3R's gradually moving on the study of the disciplines. It should provide for a learning environment for children that promote joyful, activity based and participatory teaching and learning.

1.1.4. The elementary teacher education programme carries different nomenclature like BTC, Diploma in Education, TTC and so on. Both the duration of training and entry qualifications differ across states. The course is offered in elementary teacher education institutions and in DIETs. The programme is aimed at preparing teachers for primary (I-V) level education.

2.0 Duration and working days

(c) The elementary teacher education programme shall be of duration of two academic years.

(d) There shall be at least 200 working days each year exclusive of the period of examination and admission, out of which at least 40 days shall be for practice teaching/skill development in nearby elementary schools.

(e) A working day shall be of a minimum of 6 hours in a six day week, during which physical presence in the institution of all the teachers and student teachers is necessary to ensure their availability for individual advice, guidance, dialogues and consultation as and when needed.

3.0 Intake, Eligibility and Admission Procedure

3.1 Intake

3.1.1 There shall be a unit of 50 students, for each year.

3.2 Eligibility

3.2.1 Candidates with at least 50% marks in the senior secondary examination (+2) or its equivalent are eligible for admission.

3.2.2 There shall be relaxation of marks/reservation of seats for SC/ST/OBC and other categories as per the Rules of the Central Government/State Government/UT Administration concerned.

3.3 Admission procedure

3.3.1 Admission shall be made on merit on the basis of marks obtained in the qualifying examination and/or in the entrance examination or any other selection process as per the policy of the State Government/UT Administration."

Thus the N.C.T.E. has recognised the elementary teacher education programme. Paragraph 1.1.4 of the amended regulations explains that the elementary teacher education programme carries different nomenclatures like B.T.C. Thus the above appendix-2 is a norm for B.T.C. course. In the present case we are confined to the eligibility and qualification for Special Basic Training Course. The Special Basic Training Course being a course of elementary teacher education, thus, has to confine to the regulations of N.C.T.E. The State took permission for running Special Basic Training Course due to extra ordinary situation of lack of eligible teachers to fill up 60,000.00 vacant posts in State and for imparting Special Basic Training Course, training qualification of secondary schools was also treated to be eligibility. Paragraph 3(b) of the Appendix-5 provides for eligibility, which has already been extracted above.

The amendment of the Regulation by Appendix 2, paragraph 3.3.1 now provides for admission procedure, which has already been extracted above. The unamended regulation provided for admission as per the policy of the State Government. The amended regulations give the State free hand to adopt any such procedure as per the policy of the State Government. Thus the regulations of the 1993 Act permit the State Government to make admission in Special Basic Training Course as per the policy of the State. Thus the policy decision of the State for making admission in the Special Basic Training Course, 2007 according to eligibility as laid down by the State cannot be said to be beyond the powers of the State nor the said policy decision can be said to contravene any of the provisions of the 1993 Act or the regulations framed thereunder. The action of the State also cannot be said to impinge any of the field occupied by the Parliamentary legislation. thus there is no question of any repugnancy attracting Article 254 of the Constitution in the present case.

The submission of the petitioners' counsel that the classification is arbitrary with no rational object to achieve needs consideration. The State is obliged to provide compulsory primary education to the students up to 14 years of age, which is one of the directive principles of the State policy. There are more than 60,000.00 posts of teacher vacant in the institutions and the exercise of State is towards filling the aforesaid vacant post to provide for primary education to the children in the State. The classification is between two form of degrees, one obtained by distance mode and one obtained by face to face model. The candidates, who have obtained degree by distance mode, are the candidates who have obtained the degree as a in-service candidates. The candidates who have obtained B.Ed. degree by face to face mode, are the candidates who have obtained degree as pre-service candidates. Classifying those candidates who are not in-service for Special Basic Training Course, 2007 cannot be said to be irrational or arbitrary. There is a valid classification, which has been made by the State Government in confining admission to Special Basic Training Course, 2007 to the regular candidates.

The learned Standing Counsel has also submitted that any additional qualification prescribed by the State Government in addition to those prescribed by N.C.T.E. does not violate any requirement of the 1993 Act. Even if it is assumed that N.C.T.E. permitted the State to select for Special Basic Training Course those candidates who have B.Ed., confining the said B.Ed. to the B.Ed. regular candidate cannot be said to be a condition, which lowers down the eligibility criteria laid down by the N.C.T.E.

The Apex Court has occasion to consider the similar submissions in A.I.R. 1999 S.C. 2894; Dr. Preeti Srivastava and another vs. State of Madhya Pradesh and others. TheApex Court laid down that the State may lay down qualification in addition to those prescribed in Entry-66 of List-I. In the said case the State of Madhya Pradesh laid down certain qualifications for admission in postgraduate medical course, which were in addition to qualifications laid down by the Medical Council of India. The argument was raised that the State has no jurisdiction to lay down any different qualification from one prescribed by the Medical Council of India. Following was laid down by the Apex Court in paragraphs 35 and 36 of the said judgment:-

"35. The legislative competence of the Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II have to the States an exclusive power to legislate on "Education including universities subject to the provisions of Entries 63, 64, 65 and 66 of List-I and Entry 25 of List III." Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3.1.1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows:-

"Entry 25, List III: Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I : Vocational and technical training of labour."

Entry 25 is subject, inter alia, to Entry 66 of List-I. Entry 66 of List-I is as follows:-

"Entry 66, List I: Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."

Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List-I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union Legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List-I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977 education including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 154.

36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules of admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List-I. For example, a State may, for admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List-I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can, and do have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are:

�?�.The calibre of the teaching staff;

�?�.A proper syllabus designed to achieve a high level of education in the given span of time;

�?�.The student-teacher ratio;

�?�.The ratio between the students and the hospital beds available to each student;

�?�.The calibre of the students admitted to the institution;

�?�.Equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges;

�?�.Adequate accommodation for the college and the attached hospital; and

�?�.The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.

Another judgment of the Apex Court relevant to be noted is A.I.R. 2004 S.C. 1861; State of Tamil Nadu and another vs. S.V. Bratheep and others. The Apex Court in the said judgment had considered the provisions of All India Council of Technical Education Act, 1987 and laid down that the State can prescribe higher qualification to one prescribed under the Central Act. Following was laid down in paragraphs 10 and 11 of the said judgment:-

"10. Entry 25 of List III and Entry 66 of List 1 have to be read together and it cannot be read in such a manner as to form an exclusivity in the manner of admission but if certain prescription of standards have been made pursuant to Entry 66 of List 1, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by the AICTE. It is not doubt true that the AICTE prescribed two modes of admission- One is merely dependent on the qualifying examination and the other dependent upon the marks obtained at the Common Entrance Test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission only on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having minimum in the qualifying examination in order to be eligible to participate in the common entrance test. In either event, the streams proposed by the AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by the AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr. Preeti Srivastava's case. It is no doubt true as noticed by this Court in Adhiyaman's case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. Preeti Srivastava's case. If higher minimum marks have been prescribed, it would certainly add the excellence in the matter of admission of the students in higher education.

11. Argument advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this Court ignores the view taken by this Court in several decisions including Dr. Preeti Srivastava's case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE they should be admitted even if they fall short of the criteria prescribed by the State. The scope of the relative entries in the Seventh Schedule to the Constitution have to be understood in the manner as stated in the Dr. Preeti Srivastava's case and, therefore, we need no further elaborate in this case or consider arguments to the contrary such as application of occupied theory no power could be exercised under Entry 25 of List III as they would not arise for consideration."

Thus confining of B.Ed. to regular candidates cannot be said to be per-se, beyond the power of the State and arbitrary.

One more aspect of the case needs to be noted. As noticed above, the State Government vide letter dated 22nd June, 2006 prayed for permission to run Special Basic Training Course, 2007 by permitting regular candidates and the permission as proposed by the State was granted. By letter dated 27th June, 2007 the N.C.T.E. granted permission as under:-

"The NRC appreciated the proposal of the U.P. Government and decided to grant approval to conduct the special B.T.C. programme bridge course as proposed by the State. It will be only one time approval. Teachers are to be trained only in DIETs recognised by NRC-NCTE. The Committee also observed that as this programme will be conducted only in recognised DIETs, so there is no need for any inspection.

NOW, THEREFORE, in exercise of the powers vested under Section 15(3)(b) of the NCTE Act, the Regional Committee hereby grants one time approval for training 60,000 candidates for primary teachers who are already B.Ed. subject to the fulfilment of the following:-

a. The teachers are to be trained only in the DIETs recognised by NRC-NCTE.

b. The SCERT to submit the date of commencement of the course along with the list of the recognised DIETs where the proposed training is to be conducted.

c. The quarterly progress report of the programme is to be submitted to NRC-NCTE.

d. The curriculum as finalised in the meeting between the NCTE and the State Government of U.P. is to be followed for the programme."

At this stage one more submission of learned counsel for the petitioners needs to be considered, which is with regard to interpretation of the request as made by the State Government vide its letter dated 22nd June, 2006. Learned counsel for the petitioners contended that paragraph 2.Aa has to be interpreted to mean that the requirement of "Sansthagat Chhatra" was only confined to those candidates who are B.P.Ed./C.P.Ed./D.P.Ed. etc. and the said qualification was not attached to B.Ed./L.T. The said submission has no substance. A bare reading of paragraph 2.Aa of the letter indicates that requirement of Sansthagat Chhatra (regular student) was for all the candidates including B.P.Ed./C.P.Ed./D.P.Ed. apart from B.Ed. and L.T. The words in the letter are "B.Ed./L.T. vH;fFkZ;ksa dss vfrfjDr the candidates having graduate qualification with B.P.Ed., C.P.Ed. and D.P.Ed. were also to be regular candidate". The first sentence, which uses the words "apart from B.Ed. and L.T., only enlarge the category of training which may be treated to be eligible for admission in special Basic Training Course but the condition that all the candidates should be "Sansthagat" was uniformly to apply to all the category of teaches training as mentioned in paragraph 2.Aa of the letter. Thus the argument of the petitioners cannot be accepted that State Government's request for Sansthagat Chhatra (regular students) was confined only to B.P.Ed./C.P.Ed./ D.P.Ed.

Learned counsel for the petitioners has attacked the Government order on the ground that the said Government order in essence provided for institutional preference, i.e., preference to those candidates who have passed out as regular student from particular institution, which is impermissible. Learned counsel for the petitioners has relied on the judgment of the Apex Court reported in (2002)1 S.C.C. 428; AIIMS Students' Union vs. AIIMS and others and (2003)11 S.C.C. 146; Saurabh Chaudri and others Vs. Union of India and others. The Apex Court in the aforesaid two judgments considered the question of institutional preference as to whether in a postgraduate medical admission the students passing M.B.B.S. from a particular institution are entitled for institutional preference or not. The judgment in Saurabh Chaudri's case (supra) is a constitutional Bench judgment. By majority following was laid down in paragraphs 64 and 70 of the said judgment:-

64. The sole question, therefore, is as to whether reservation by way of institutional preference is ultra vires Article 14 of the Constitution of India. We think not. Article 14, it will bear repetition to state, forbids class legislation but does not forbid reasonable classification, which means: (1) must be based on reasonable and intelligible differentia; and (2) such differentia must be on rational basis."

70. We, therefore, do not find any reason to depart from the ratio laid down by this Court in Dr. Pradeep Jain. The logical corollary of our finding is that reservation by way of institutional preference must be held to be not offending Article 14 of the Constitution of India"

The Apex Court held in the said judgment that institutional preference is not violative of Article 14 of the Constitution. In the present case no question of institutional preference is involved. The State Government has provided eligibility to those candidates who have passed their B.Ed. course as regular institution students. The emphasis is with regard to mode of the course and not of passing the course from any particular institution. The submission of Mr. Khare, Senior Advocate, is that in case it is permitted, it will be open for the State tomorrow to decide that candidate passing only from Training Institute at Lucknow shall be admitted. The illustration given by Mr. Khare is a illustration of giving an institutional preference without any valid classification and in the event State insist that degree of only a particular institution is recognised that shall be clearly improper and unconstitutional but present is not a case of requiring degree from a particular institution.

Learned counsel for the petitioner has placed reliance on a judgment of the Apex Court reported in (2001)8 S.C.C. 664; State of Punjab vs. Dayanand Medical College and Hospital and others. In the said case, the Apex Court laid down that for admission in postgraduate medical course minimum qualifying marks prescribed by Medical Council of India in terms of Entry-66 of List-I of Seventh Schedule cannot be unilaterally diluted by Government or the University. There cannot be any dispute to the proposition laid down by the Apex Court in the said judgment, but the said judgment does not help the petitioners in the present case since present is not a case of unilaterally diluting any criteria laid down by N.C.T.E.

The learned counsel for the petitioners has also placed reliance on a judgment of the Apex Court reported in (2003)11 S.C.C. 559; State of Punjab and others vs. Manjit Singh and others. The Apex Court in the said judgment held that cut off marks for the purpose of short listing the candidates by scheduled caste candidates by screening test was not permissible. The Apex Court held that required number of candidates were to be taken from top of the list. In the said case advertisement was issued for recruitment of 500 Medical Officers. The schedule caste candidates had applied. The Commission conducted screening test for all category of candidates. Out of 303 Scheduled Castes (General) only 59 could clear the test. Only 27 persons belonging to Balmikis and Majhbi Sikhs could qualify whereas 62 posts were for Scheduled Castes (General), the Balmikis and Majhbi Sikhs. The Apex Court referring to Articles 16(4) and Article 335 of the Constitution observed that short listing by screening test would have been necessary when out of 10,000 only 8000 or 6000 candidates obtained 45% marks so as to all of them needed to be called for interview and in that even purpose would be served for short listing the candidates. It was held by the Apex Court that due to short listing the candidates otherwise qualified for interview stood rejected on the basis of merit. Following was laid down by the Apex Court in paragraph 11 of the said judgment:-

"11. In the case in hand, it was not for the Commission to have fixed any cut-off marks in respect of the reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have up-to-the-mark merit as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview.

The screening test by the Commission in above case was held to be impermissible in view of the fact that number of candidates did not exceed the number of seats. The screening test could not have been resorted to. The said case is clearly distinguishable.

At this stage, it is relevant to refer to the judgment of the Apex Court in 1995(4) S.C.C. 104; State of Tamilnadu vs. Adhiyaman Educational & Research Institute and others. In the said judgment the Apex Court laid down that when there are more applicants than the available situations/seats, the State authorities is not prevented from laying down higher standards or qualifications. Following was laid down by the Apex Court in paragraph 41 of the said judgment:-

"41. What emerges from the above discussion is as follow:-

(i) The expression 'coordination' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, s                                                                                                                                                             cheme or plan of development. It, therefore, includes acting not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.

(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.

(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.

(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.

(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which repugnant to the Central law.

(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally."

One more judgment relied by counsel for the petitioners needs consideration. Mr. Khare has placed reliance on Division Bench judgment of this Court, of which I was also a member, reported in 2006(8) A.D.J 373; Pawan Kumar Sagar and others Vs. State of U.P. and others. In the said case the administrative direction of the Central Government providing for essential qualification of one year advance training was removed by the State under the rules framed under Article 309 of the Constitution. The learned Single Judge held that by making amendment in the rules under Article 309 of the Constitution the qualification of one year advance training cannot be taken away. The Division Bench affirmed the the said judgment of learned Single Judge by giving additional reasons. Following was laid down in paragraphs 13 to 16 of the said judgment:-

"13. A reference was made to Entry 25 of the Concurrent List, i.e., List III and the said entry is quoted below:

"25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."

14. The submission of the respondents was that in pith and substance, the rules made by the State Government are referable to an exercise of parallel power to what is contained in Entry 66 of List I. If that be so, then and in that event, this power cannot be usurped by the State Government in the garb of seeking to make service rules operative under Article 309 of the Constitution of India, although State service is made a State entry therein, and therefore, ordinarily speaking, State service rules are to be made by and under the order of the Governor of the concerned State.

15. There cannot be any two opinions about what the essential qualification of a training instructor in a Government Industrial Training Institute actually is. It has everything to do with the standard of a technical institution; that is the main and guiding factor. No doubt it is also a qualification necessary for obtaining service, but service is not the main factor. Also it is much more relatable to Entry 66 rather than Entry 25 which contains vocational and technical training of labour. The reason for our concluding to this effect is that the Training Instructors should be looked upon more, and much more, as those entrusted with the responsibilities of maintaining the standard of instruction rather than merely as part of a labour force. Even in a list III matter, the Central exercise of power would prevail, on the principles akin to those contained in Article 254, as Presidential assent cannot had in regard to exercise of power under Articles 162 or 309.

16. On this basis it would not be right to permit the State of U.P. to make out a different standard for this State alone within India and to have Instructors who do not have the required advanced training. A State is not permitted in an all India matter to cut out a pocket for itself and suit its own needs even if it might be practical and of benefit to some powerful sections. The necessity of maintaining technical standard specially in the current days of falling standards has been emphasised by the Hon'ble Single Judge and we would respectfully repeat the sentiments ourselves also."

The said judgment was on its own facts. Present is not a case where the State Government while issuing the Government order dated 10th July, 2007 has violated any of the provisions of the 1993 Act or regulations or even executive instructions issued by the N.C.T.E. The above judgment does not help the petitioners in any manner.

Learned counsel for the petitioners placed reliance on a judgment of this Court reported in 1993(21) A.L.R. 88; Ramesh Pratap Singh and others vs. State of U.P. and others in which this Court held that there is no distinction between certificates obtained from a regular course and other through a correspondence course. Reliance has also been placed on a judgment of this Court reported in 2000(1) A.W.C. 73; Khagendra Nath Rai and others Vs. State of U.P. and others in which also the same view was taken. Another judgment relied is reported in (2001)1 UPLBEC 753; Karan Pal Singh vs. Rajya Shakshik Anusandhan Avam Prashikshan Parishad, Lucknow and others where this Court held that B.Ed. correspondence course should be treated equivalent to regular B.Ed. Reliance has also been placed on judgment of this Court in Writ Petition No.2610 (M/S) of 2004 (Naresh Kumar Vs. State of U.P. and others) decided on 7.7.2004.

The learned Standing Counsel to the contrary has relied on judgment of this Court in 1995(1) UPLBEC 626; Virendra Bahadur Singh and others Vs. State of U.P. and others, judgment in Writ Petition No.3354 (M/S) of 2004 (Shashi Sharma vs. State of U.P. and others) decided on 14.9.2004 and another judgment of learned Single Judge in Writ Petition No.3689 (M/S) of 2005 (Saubhagya Lata Vs. State of U.P. and others) decided on 5.7.2005 and a recent judgment of this Court in Writ Petition No.26830 of 2004 decided on 5th July, 2007 in which following the judgment in Shashi Sharma's case (supra) the writ petition praying for quashing the Government order dated 14.1.2004 was dismissed.

The judgments above mentioned relied by learned counsel for the petitioners relies on the case of Ramesh Pratap Singh (supra), which was case decided on November 26, 1992, i.e., before the enactment of 1993 Act. This Court in above case was considering Rule 8 of U.P. Basic Education (Teachers) Service Rules, 1981 and held that for making an appointment there is no distinction between certificate obtained from a regular course and one obtained through correspondence course. In none of the cases regulations framed under Section 32 of the 1993 Act with regard to norms and standard of different training programmes have been considered. Furthermore the Regulations 2002 referred above as amended vide notification dated 30th November, 2006 was not there when above cases were decided. In the present case the State Government has vide Government order dated 10th July, 2007 expressly excluded the degrees obtained from modes other than a regular student. The judgment of this Court in Shashi Sharma's case (supra), which decided a bunch of cases upheld the similar restriction contained in Government orders dated 14.1.2004 and 20.2.2004 and advertisements issued thereunder inviting applications for Special Basic Training Course, 2004. In Naresh Kumar's case (supra) this Court held that degree obtained by Chaudhary Charan Singh University, Meerut through correspondence course entitles the petitioner for being send for Special Basic Training Course. However, in Naresh Kumar's case (supra) neither the 1993 Act and regulations framed thereunder were considered nor the Government orders providing for restriction was quashed and further the petitioner of that case had already been selected for the training course, which has been noted in the judgment. Thus in above view of the matter the abovementioned cases relied by counsel for the petitioners cannot be said to be deciding the issues raised in these writ petitions.

The judgment of learned Single Judge in Virendra Bahadur Singh's case (supra),  relied by learned Standing Counsel, relied on a Division Bench judgment of this Court in Writ Petition No.23341 of 1989 filed by Faujdar Yadav and 11 others decided on 7.3.1990, which judgment was quoted in paragraph 7 of the said judgment, holding that petitioners who have obtained B.T.C. Course by correspondence were not qualified.

Reference has been made to the Division Bench in Upendra Rai Vs. State of U.P. and others; (2000)2 UPLBEC 1340, in which this Court set-aside the Government order dated 11th August, 1997 and the advertisement in so far as they have the effect of excluding the candidature of candidates having obtained teachers education certificate from a institution recognised outside the State of U.P.. Learned standing counsel relied on a Division Bench judgment of this Court in Special Appeal No.314 of 2003 (Vijay Kumar Kushwaha and others Vs. State of U.P. and others) decided on 29.4.2003. Both the aforesaid Division Bench judgments were considering the Government order, which provided that degrees obtained from outside the State are not eligible. The said question is directly not in issue in the present case and a statement has been made at the bar that noticing an apparent conflict between above two judgments reference has been made to a Larger Bench.

The judgment relied by counsel for the petitioners in 2002(1) A.W.C. 121; Neeraj Trivedi Vs. State of U.P. and others and 2003(5) A.W.C. 3465; Asha Devi Pal Vs. State of U.P. and others were also the cases in which the Court was examining as to whether a person who is resident of one district and obtained B.T.C. from another district was eligible. The Court rightly in the said judgment took the view that a person resident of one district and having obtained B.T.C. from another district is fully eligible for appointment as Assistant Teacher in Primary School. The said judgments are not applicable in the present case.

Learned counsel for the petitioners has also placed reliance on one more judgment of the Apex Court reported in A.I.R. 1976 SC 1404; Maheshwar Prasad Srivastava Vs. Suresh Singh and others. In the said case the Apex Court was examining the expression "post-granulate training". The Apex Court held that expression "post-graduate training" is used in order to signify the point of time after which the training ought to be received and not to limit the eligibility to those who have received training after enrolment in an institution imparting post-graduate training. The said judgment has no application in the present case.

Another judgment relied by counsel for the petitioners is (1982)2 SCC 55; B.L. Asawa Vs. State of Rajasthan. In the said case the postgraduate medical degree conferred by an University recognised by Indian Medical Council was not recognised by the State of Rajasthan. The Apex Court held that a post graduate medical degree granted by a University duly established by statute in this country and which has also been recognised by the Indian Medical Council has ipso facto to be regarded, accepted and treated as valid throughout the country. The issues which have been raised in the present case was not there before the Supreme Court, hence the said judgment has no application.

In view of the foregoing discussions, none of the submissions raised by counsel for the petitioners can be accepted. There is no infirmity in the Government order dated 10th July, 2007, which may warrant quashing by this Court. The petitioners cannot be held to be entitled to apply for Special Basic Training Course, 2007.

All the writ petitions are dismissed.

Date: August 24, 2007.

Rakesh


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